Summary: Mrs X complained about the way the Council has dealt with her child, C’s Education, Health and Care plan following an annual review in July 2022. She said the flawed process caused her distress and negatively affected C’s mental wellbeing. The Council was at fault for not following the statutory procedure during the most recent annual review for C. The Council agreed to complete the recommendations set out to remedy the injustice its actions caused to Mrs X and C.

The complaint

1. Mrs X complains on behalf of her child, C, and herself. She says that since the annual review of C’s EHC plan which took place in July 2022 the Council:
• did not follow the statutory procedure following an annual EHC plan review and only issued the final EHC plan in February 2023;
• initially did not seek input from an educational psychologist (EP) despite C’s changing needs;
• did not include the information from occupational therapist (OT) and speech and language therapist (SALT) in C’s EHC plan it issued in February 2023;
• did not follow its own complaints procedure and Mrs X had to chase up the responses; and
• failed to communicate effectively with her about progress of her case and about changes to the key workers assigned to C’s EHC plan.
2. Mrs X says this has caused a considerable distress to her and to C. She says that without a current EHC plan C missed out on the specialist support that he needed in school, and this caused him considerable anxiety. She also notes the delays in the process had a negative impact on her entire family as her spare time is often devoted to chasing the Council for updates.
3. Mrs X also said the Council’s delay in issuing a final amended EHC plan meant the plan issued in February 2023 contained information that was out of date. Because of this, the Council decided to review C’s plan early, something that she says could have been avoided. Furthermore, Mrs X could not appeal the EHC plan until the Council issued the final amended version, which caused her further distress.
4. Mrs X would like the Council to follow the EHC plan statutory procedures and ensure plans are amended and issued within the legal timeframes. She would like the Council to improve the communication between the SEND department and the parents, so that they are aware of changes to key workers when they are made.

Back to top

The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. If we are satisfied with a council’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)

Back to top

How I considered this complaint

11. I have spoken to Mrs X and considered the information she provided together with the Council’s response to her complaint.
12. I have considered the relevant legislation and statutory guidance, set out below.
13. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments received before making a final decision.

Back to top

What I found

Annual Reviews

14. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
15. Councils must review an EHC plan at least every 12 months.
16. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (paragraph 9.49)
17. Within two weeks of the review meeting the School must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
18. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
19. If the plan needs to be amended, the Council should start the process of amendment without delay.
20. The Council must send the draft amended EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
21. When the Council suggests and agrees changes to the draft EHC plan, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
22. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
23. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Council’s corporate complaint procedure

24. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in three working days. It will respond to stage one complaints in 20 working days and stage two complaints in 15 working days. The Council’s complaint procedure states that it will let the complainants know if it needs more time to investigate.

Council’s standards for the SEND department communication with parents

25. The SEND service’s communication protocol says officers should respond to an email within five working days and a phone call within three working days.

What happened

26. In July 2022 the Council held an annual review of C’s EHC plan. The 2022 annual review report showed that the professionals involved agreed C would benefit from an updated EP assessment.
27. Two weeks after the review C’s school emailed the Council all the paperwork relating to the review. In the email the school told the Council that there were significant changes to C’s needs and that he wasn’t assessed by an Educational Psychologist (EP). The school also requested an increase to its budget to be able to continue supporting C.
28. In early August 2022 the Council told Mrs X that it intended to amend C’s EHC plan.
29. Between August and September 2022 Mrs X chased the Council for an EP referral for C.
30. In late September the Council emailed Mrs X and told her that C’s case worker had changed. She acknowledged that information on the same day. C’s new officer contacted Mrs X and spoke to her about what would happen with regards to the amendments to C’s EHC plan and an EP assessment. After the referral, C’s case officer went off on a long-term sick leave.
31. The Council told us that C’s new officer made a referral to the EP service, but this was not picked up straight away.
32. At the end of September 2022 Mrs X complained to the Council about:
• the delay in amending C’s EHC plan after the annual review;
• the delay frustrating her appeal rights to the SEND Tribunal;
• the delay in asking an EP for input; and
• the lack of communication between multiple case workers and herself.
33. In early October 2022 the Council responded to Mrs X’s complaint and said:
• it should have told Mrs X what it would do following the review within four weeks, but it did not do it for 15 weeks. The Council explained this was because of shortages in staffing and the Council had since recruited new officers;
• confirmed to her who her case worker was;
• it completed all the amendments to C’s EHC plan, and it was waiting to be issued;
• the EP service should contact her shortly about arranging an assessment for C; and
• Mrs X should contact the Council if she did not receive C’s EHC plan within two weeks.
34. In mid-October 2022 Mrs X responded to the Council and told it that C had still not been assessed by an EP. She said that without this specialist input his plan would not reflect all his needs. She asked the Council to confirm if it would request an EP report and include it in the final EHC plan.
35. In late October 2022 the Council sent a draft amended EHC plan to Mrs X.
36. In the first week of November 2022 Mrs X sent her comments on the draft EHC plan to the Council. The Council implemented the changes and issued a second amended draft EHC plan on 19 December 2022.
37. The next day the Council issued its final complaint response to Mrs X’s complaint. It apologised for the delay in completing C’s EHC plan review and confirmed that it would arrange his EP assessment for early next year (2023). The Council said that the delay in requesting the EP assessment initially was due to C’s school setting not identifying that this was necessary.
38. The Council said that at the end of December 2022 Mrs X told it she disagreed with the second amendment EHC plan and she requested a meeting. It says she asked the Council to issue the final amended EHC plan regardless of her disagreement.
39. Mrs X was not happy with the Council’s response, and she came to us to look at her complaint.
40. In mid-January 2023 Mrs X asked the Council why she had not received the final amended EHC plan yet. She told the Council it was blocking her appeal rights to the SEND Tribunal. Mrs X chased the Council for a response in late January.
41. In mid-February 2023 the Council issued C’s final amended EHC plan following the annual review it held in July 2022.
42. In February 2023 the Council held an emergency EHC plan review for C.
43. In mid-March 2023 C was assessed by an EP. In late March C had an emergency OT assessment.

Analysis

Delays in statutory procedure following an annual EHC plan review in June 2022

44. The annual review of C’s EHC plan took place in July 2022.
45. Within four weeks of the review, the Council should have notified Mrs X if it planned to amend C’s EHC plan, but it did not do so until five weeks after the annual review meeting took place. This is fault.
46. Following the amendment notice the Council sent to Mrs X in August 2022, it should have issued the final amended EHC plan by early October 2022. This did not happen until February 2023. This is fault.
47. We consider that the delay in finalising C’s EHC plan caused him and Mrs X an injustice. Mrs X experienced avoidable frustration and uncertainty about when the support C needed would be put in place. She also could not appeal the content of the EHC plan until the Council issued the final amended plan for C.
48. Mrs X said that C missed out on the support that he needed. The Council and Mrs X are in the process of an emergency EHC plan review, and the plan is not finalised yet. Because of this we cannot say what support should be in place for C, and what specialist provision he missed, if any. This further adds to the uncertainty Mrs X experienced.
49. The Council told us the delays in finalising the EHC plan were caused by staffing issues due to sick leave and the time it takes to induct new officers.

Input from an educational psychologist despite C’s changing needs

50. The Council told us it did not ask an EP for input prior to the July 2022 assessment as it did not believe it was required. It said that there was a discrepancy in C’s behaviour in school, and the problems Mrs X was experiencing.
51. The annual review report shows that all participants agreed that C would benefit from a new EP assessment.
52. The Council does not have to seek new advice where that type of advice has previously been provided for any purpose – for example, if there already was a recent EP’s report.
53. This exception will only apply if the person providing that advice, the Council and Mrs X were all satisfied that the existing advice is sufficient. This was not the case, Mrs X requested the input of an EP.
54. Furthermore, previous advice can only be sufficient if it is relatively up to date and accurately reflects the child or young person’s current needs. As a rough guide, an EP’s report which is over two years old will not usually be recent enough to be useful.
55. The Council made an EP referral in early December 2022. This is five months after it had agreed that C would benefit from one. This is fault.
56. We consider the Council could have anticipated C needing a new EP assessment even prior to the July 2022 review, based on the fact his last assessment was two years prior and should not be considered as an up to date one.
57. Based on the information we have seen, we consider it is likely the Council would not have had to hold an emergency annual review in March 2023 if it had requested all relevant information in time for the annual review in July 2022.
58. We consider that the delay in the Council requesting an EP assessment for C caused him and Mrs X avoidable uncertainty and frustration.

Information from OT and SALT in February 2023 EHC plan

59. Mrs X told us the missing information related to short term outcomes that were not included in the amended EHC plan, which meant she had to put them in.
60. Mrs X also said that the outdated long- and short-term outcomes were left in, which was confusing and made it difficult to navigate the amended EHC plan.
61. The Council told us it was not sure which information Mrs X thought was missing from C’s EHC plan issued in February 2023.
62. It explained that before issuing the EHC plan the Council sent a draft version to Mrs X and asked for her comments. She did ask for a meeting but then asked the Council to issue the final EHC plan without further amendments, which the Council did.
63. Mrs X told us this was because she wanted to appeal the EHC plan to the Tribunal. Before this happened the Council called an emergency EHC plan review which is ongoing.
64. Before the July 2022 annual review, the Council required input from OT during C’s EHC plan assessment process which took place in 2020.
65. In March 2023 the Council got an updated OT assessment and this was included in C’s amended EHC plan following the emergency annual review that began in the same month.
66. Mrs X told us that despite the Council issuing a final amended EHC plan in February 2023 she had to start an emergency EHC plan review as the final plan did not reflect C’s needs accurately.
67. Based on the information we have seen so far, we consider the Council was at fault for not including all the information from the reports that it had. We understand Mrs X had an opportunity to comment on the draft EHC plan, however she should not have to make substantive changes to the document. These should have been made by the Council.
68. We consider the Council’s actions have contributed to Mrs X’s frustration and caused further delays in issuing C’s final EHC plan.

Council’s complaints procedure

69. The Council accepted there was a delay in issuing a stage two response to Mrs X’s corporate complaint. However, it said that it followed its own corporate procedure and told Mrs X the SEN service had an extension to consider her complaint because of the capacity issues within the service.
70. The stage two response was due on 8 December and the Council responded on 20 December. On 2 December the Council told Mrs X the SEND service had a two-week extension to complete the response, as per the Council’s process. On 7 December the Council told Mrs X the new deadline for the response was 23 December.
71. Base on the evidence we have seen so far, the Council has followed its corporate complaints procedure, and was not at fault.

Council’s communication standards

72. The Council told us its SEN Department had been experiencing staff shortages. It had recruited eight new officers that began their roles in September 2022. At this time, the service redistributed the workload, and C’s case worker changed. The Council told Mrs X about this change. C’s case has now been redistributed to another permanent case officer.
73. The Council said that its SEND service endeavour to always meet its communication standard, however it accepted that significant capacity issues and unplanned staff leave had impacted the ability to do so on this occasion. This is fault.
74. We consider this has caused Mrs X avoidable frustration.

Back to top

Agreed action

75. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Mrs X for the faults we have identified and the impact of those faults; and
• pay Mrs X £400 to recognise the frustration and uncertainty the Council’s fault has caused her and C.
76. The Council will also, within three months from the date of my final decision:
• share this decision with the Council officers dealing with SEN cases and emphasise the importance of issuing the final EHC plans within the legal timeframes; and
• review the quality of written EHC plans and decide if its SEN Officers require training on effective EHC plan writing.
77. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

78. There was fault in the Council’s actions which caused Mrs X and C an injustice. The Council agreed to my recommendations and my investigation is now complete.

Back to top

Investigator's decision on behalf of the Ombudsman