Summary: The complainant (Mr X) said the Council had delayed issuing an Education Health and Care Plan for his son (Y) following his Annual Reviews. We found fault in the Council’s actions following the Annual Reviews of Y’s Education Health and Care Plan in 2022 and 2023. We also found fault in the Council’s failure to apply the principles of good administrative practice when carrying out its duties for children with the Education Health and Care Plans. The Council’s fault caused injustice to Mr X. The Council agreed apologise to Mr X and make a payment to recognise his distress and uncertainty.

The complaint

1. Mr Y complains about the Council’s failure to update Y’s Education Health and Care (EHC) Plan following its Annual Reviews in the last three years.
2. Mr Y says the Council’s failings meant Y did not have adequate support. They caused Mr Y distress and deprived him of his appeal rights.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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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What I have and have not investigated

8. I have not investigated anything that happened before an Annual Review of Y’s EHC Plan in April 2022. Normally, as explained in paragraph four of this decision, we do not investigate anything that happened more than 12 months before the complainant came to us. Mr X complained to us in March 2023 and I found no good reasons to investigate any events earlier than spring 2022.

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How I considered this complaint

9. I considered the information Mr X provided.
10. I made enquiries with the Council and considered the information it provided.
11. I referred to our Guidance notes “Principles of Good Administrative Practice”.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

13. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC PLAN at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the 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 and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHC Plan;
• In any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
14. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)
15. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan. (Children and Families Act 2014 S.51(2))

What happened

Background

16. In the EHC Plan issued for Y in 2019 the Council named a special academy (School 1). Y continued to attend School 1 until his family moved abroad in January 2024.
17. The Council amended Y’s EHC Plan in January 2022, including provision for a specialist approach when delivering education to Y.

Annual Reviews

18. At the end of April 2022 an Annual Review meeting took place for Y’s EHC Plan. The Council did not send any letters to Y’s parents following this review. The Annual Review forms included a comment School 1 remained appropriate for Y. Some amendments to the EHC Plan were recommended.
19. The next Annual Review meeting took place at the end of February 2023.
20. A few days later the Council told Mr X it intended to amend Y’s EHC Plan naming an alternative educational setting due to Y’s transfer to the next stage of education. The Council also confirmed Y would continue receiving full-time support to ensure a specialist approach when delivering education to him.
21. Y’s parents requested an interim alternative provision and, when a place became available, another school to be named in Section I of Y’s EHC Plan (School 2). Y’s parents were concerned to secure Y’s placement in a school which applied a specialist approach needed by him.
22. The Council consulted with the interim alternative provision but the provision stated it could not meet Y’s needs.
23. In mid-May 2023, responding to the amendments proposed by the Council, Y’s parents formally provided their preference for a school placement for Y. Aware of the waiting lists for some of the placements, Mr X specified four options acceptable to the parents.
24. The Council issued Y’s final EHC Plan in mid-January 2024, naming School 1 in Section I. The EHC Plan confirmed Y had been receiving full-time support for a specialist approach needed by him.

Complaint

25. At the end of December 2022 Mr X complained to the Council that he had not received Y's amended EHC Plan since the Council had responded to his previous complaint in September 2021. This complaint was closed in error three weeks later. At the same time the Council told Mr X it would provide him with the EHC Plan he had asked for.
26. In March 2023 Mr X complained to us. We asked the Council to respond to Mr X’s complaint before looking at it.
27. The Council said it had an open complaint from Mr X but its resolution was reliant on the issuing of Y’s EHC Plan. The Council accepted it had taken too long to respond to Mr X’s complaint and offered £200 for time and trouble caused by the delays within complaint-handling. The Council also apologised for not responding to the Annual Review held in 2022. It said that although there were some changes recommended at the review, they were not significant enough to justify amending Y’s EHC Plan.
28. Mr X seemed satisfied with the Council’s response and provided his bank account details for the payment, which was completed.
29. In mid-October 2023 Mr X referred to his previous complaint and said he still had not received an EHC Plan for Y. The Council stated it had agreed some amendments to Y’s EHC Plan but could not finalise as it could not find an alternative placement for Y.

Analysis

Annual Review in 2022

30. If the Council did not intend to amend Y’s EHC Plan following the Annual Review in April 2022, it should have sent a letter telling Mr X of its decision within four weeks from the date of the meeting, so by the end of May 2022. The Council’s failure to do so is fault.
31. This fault caused injustice to Mr X by creating uncertainty on his part. The correspondence between Mr X and the Council suggests that Mr X was waiting for a new EHC Plan to be issued for Y and did not realise the Council did not intend to make any amendments to the EHC Plan of January 2022.
32. I do not, however, consider the Council’s fault caused injustice to Y. Y continued attending School 1 which is a special school and was receiving a specialist approach to enable him to access education. The Council said that any amendments proposed to Y’s EHC Plan at the Annual Review in 2022 would not be significant enough to justify issuing an amended plan. At this stage Y’s parents did not query suitability of School 1.

Annual Review in 2023

33. The Council should have issued Y’s amended EHC Plan within eight weeks from sending the proposed amendments to Mr X and within a maximum of 12 weeks of the Annual Review meeting. The final amended EHC Plan should have been issued by the end of May 2023. The Council issued this document nearly eight months later, in mid-January 2024.
34. In its response to us the Council said its delay in issuing Y’s amended EHC Plan was partly caused by the delays in obtaining parental preference for Y’s school placement. This explanation is not justified by the evidence I have seen. In particular in the draft proposed EHC Plan with parental requested amendments from mid-May 2023, Mr X included four placements he considered suitable for Y. The parents remained consistent in their preferences, so the Council knew at least from May 2023 all the placements considered by the parents for Y.
35. The Council’s delay of nearly eight months in issuing an amended EHC Plan for Y following the Annual Review in February 2023 is fault. This fault caused injustice to Mr X by significantly delaying his appeal rights. Mr X did not think School 1 could meet Y’s needs therefore he requested a different placement. On the balance of probabilities it seems likely that if the Council had issued Y’s EHC Plan by the end of May 2023, Mr X would have appealed asking for the school of his preference to be named in Section I.
36. Mr X said he and his family moved abroad because of the Council’s failings with Y’s education. I cannot verify this claim. Neither can I say whether the Council’s failings caused injustice to Y. He attended special school and received full-time specialist support to access education. Mr X wished him to attend a special school which used the specialist approach for all its pupils. I cannot make any determinations about the placement suitability as only the SEND Tribunal could settle any placement disputes.

Administrative practice

37. When investigating this complaint I have also identified the Council issued an EHC Plan for Y with the wrong date – the Council dated an EHC Plan of January 2022 with the date of January 2021.
38. The failing above as well as the Council’s confusion about the EHC Plan process, which resulted in sending us an EHC Plan marked as final but not dated or signed which the Council then explained was sent by error, show the lack of rigorous processes in place when issuing and reviewing EHC Plans. The Council failed to follow the principles of good administrative practice as explained in our guidance “Principles of Good Administrative Practice”. In particular it failed to:
• provide effective services;
• ensure information and any advice provided is clear, accurate and complete;
• keep proper and accurate records.
39. The Council’s failing amount to fault. This caused injustice to Mr X by creating confusion about the documents relating to Y and increasing his uncertainty about the review process.
40. Mr X told me the Council failed to send him Y’s final EHC Plan issued in January 2024. Responding to this claim the Council provided an email which shows the document was sent to Mr X electronically on the day of its issuing. The Council sent the email with the EHC Plan attached to both parents using their correct email addresses. Based on this evidence I do not find the Council failed to send Y’s final EHC Plan to Mr X.

Service improvement

41. In response to our decision of 21 July 2023 in a complaint 22 010 171 the Council sent us an action plan for dealing with delays, including the delays in issuing EHC Plans following Annual Reviews. The Council said from September 2023 it:
• Implemented new ways of working when carrying out EHC needs assessments in line with the Council’s Accelerated Progress Plan to improve timeliness and quality of EHC Plans within six months;
• As part of the restructure put senior structures in place to identify potential delays earlier and address them;
42. The Council said it would take some time for the changes implemented as part of the Transforming Special Educational Needs and Disabilities and Inclusion Programme to take effect. As the events complained about by Mr X happened before the Council started its improvement programme it would be too early to expect its results in Mr X’s case. We will be monitoring the effectiveness of this programme through our casework.

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Agreed action

43. To remedy the injustice caused by the faults identified, we recommend the Council complete within two weeks of the final decision the following:
• Apologise to Mr X for the injustice caused to him by the faults identified;
• Pay Mr X £500 to recognise the injustice, including distress and uncertainty, caused to him by the Council’s fault. This is in addition to £200 offered by the Council for the delays in dealing with Mr X’s complaint.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I uphold this complaint. For the reasons explained in the Analysis section I found fault in the Council’s Annual Review processes which caused injustice to Mr X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman