Summary: Mrs X complained the Council delayed issuing her child, Child Y’s amended Education, Health and Care (EHC) plan following an annual review in March 2022. The Council was at fault for the delay in issuing Child Y’s EHC plan following the annual review. The Council has already apologised to Mrs X for the delay, which was an appropriate remedy for the injustice caused. Child Y was not caused an injustice by the delay. The Council will provide evidence of how it will reduce similar delays to prevent a reoccurrence of the fault.

The complaint

1. Mrs X complained the Council did not accurately reflect her comments made on her son, Child Y’s EHC Plan she made following an annual review in late March 2022. She said as a result the Council delayed issuing Child Y’s amended final EHC plan until late October 2022. Mrs X said this caused avoidable time and trouble and distress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I considered:
• the information Mrs X provided about her complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
7. Mrs X and the Council had an opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Relevant law and guidance

8. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
9. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
10. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

The Code of Practice

11. The Code says councils should review the plan at least annually. The review meeting will usually be led by the school, which should send the council a report of the meeting within two weeks.
12. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it. It must tell the child’s parents and school its decision. If the plan needs amending, the council should start the amendment process without delay and should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.

What happened

13. Child Y lives with their family. In late February 2020 Child Y moved to an Independent School, School 1.
14. An annual review of Child Y’s EHC plan was held in late March 2022 by School 1. This was attended by the School 1 Special Educational Needs Coordinator (SENDCo), Child Y’s mother Mrs X and Child Y’s father.
15. In late May 2022 the Council sent Mrs X a letter in response to the annual review report and said it intended to amend Child Y’s EHC plan.
16. In early August 2022 Mrs X made a formal complaint to the Council. She said changes had been made to Child Y’s EHC plan following the annual review in late March 2022. She said the changes were sent to the Council but the Council had delayed issuing Child Y’s EHC plan, which prevented her right of appeal to the SEND Tribunal.
17. In early September 2022 the Council sent Mrs X its stage 1 response. It said Child Y’s EHC plan was not issued in line with statutory guidelines following the annual review and apologised for the delay. It said it had unprecedented demand because of an increase in statutory requests and staffing shortages and it would issue Child Y’s proposed amended EHC plan within seven working days.
18. In mid-September 2022 the Council sent Mrs X Child Y’s draft amended EHC plan.
19. Between late September 2022 and early October 2022 Mrs X emailed the Council three times and said Child Y’s draft EHC plan did not include the amendments and complained about the Council delay. She asked it to include the amendments that was sent by School 1 or she would appeal to the SEND Tribunal.
20. In late September and early October 2022 several Council officers considered Mrs X’s suggested EHC plan changes. It also received SALT advice for Child Y’s EHC plan and a day later it sent Mrs X a new amended draft EHC plan.
21. In early October 2022 School 1 wrote to the Council and explained from September 2022 it was meeting the provision as amended in Child Y’s EHC plan.
22. In mid-October 2022 Mrs X remained unhappy with the draft EHC plan because it did not include all the suggested amendments. Mrs X complained to her MP and government about the delay.
23. In mid-October 2022 Mrs X wrote to the Council and asked for her complaint to be escalated to the Councils stage 2 complaint process.
24. In late October 2022 the Council issued Child Y’s final EHC plan which included all of the suggested amendments. Mrs X was satisfied with the final plan and did not appeal to the SEND Tribunal.
25. Mrs X remained unhappy and in January 2023 complained to us.

Enquiries

26. In response to my enquiries the Council said:
• it accepted there was a delay in issuing Child Y’s EHC plan;
• it would review its current processes to improve timeliness of EHC plan reviews;
• annual review regulations had already been shared with relevant staff in a newsletter to increase awareness of the process and timescales; and
• Child Y had not lost any provision because of the EHC plan delay.

My findings

27. The Council accepted it delayed issuing Child Y’s final EHC plan following the annual review in late March 2022. It caused Mrs X frustration and had a knock on effect which meant the final plan was not in place for the start of the new academic year. There is no evidence however that this caused Child Y an injustice as records show School 1 was providing the provision in the final plan from September 2022 onwards. The Council has already apologised to Mrs X which is sufficient to remedy the injustice caused to her.
28. The Council has agreed to review its procedures to improve timeliness for EHC plan annual reviews and annual review timescales had already been shared with relevant staff.

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Agreed action

29. Within three months of the final decision the Council will provide us with evidence of how it has reviewed its procedures to reduce delays in issuing final EHC plans following annual reviews. It will provide us with an action plan of any actions it has taken or intends to take going forward.

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Final decision

30. I have completed my investigation finding fault. The Council has agreed to take action to prevent reoccurrence of the fault. Child Y was not caused an injustice by the delay.

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Investigator's decision on behalf of the Ombudsman