Summary: The Council was at fault for the time taken to amend and issue an Education, Health and Care plan following an annual review. This caused injustice as the child did not know what support they were due to get until just before they moved into post-16 education. To remedy the injustice caused, the Council agreed to apologise, make a payment for the distress caused and produce an action plan showing how it will meet statutory timescales for annual reviews.

The complaint

1. Mrs X complains the Council delayed in amending and issuing an Education, Health and Care plan for her child Y, after carrying out an annual review.

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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. 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)
4. 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

5. As part of this investigation, I considered the information provided by Mrs X and the Council. I discussed the complaint with Mrs X over the telephone. I sent a draft of this decision to Mrs X and the Council for comments.
6. 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 found

Law and guidance

7. A child with special educational needs 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.
8. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
9. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
10. Where a council proposes to amend an EHC plan, the law says 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
11. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
13. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.

What happened

14. Mrs X’s child, Y, has special educational needs. Y was due to move into a post-16 institution in September 2022.
15. In July 2021, the Council held an annual review of Y’s EHC plan in preparation of their move into post-16 education.
16. In March 2022, Mrs Y contacted the Council has she had not received a draft EHC plan for Y following the annual review.
17. The Council contacted a post-16 provider in early April 2022, to see if it could meet Y’s needs. The post 16-provider responded to the Council in late April 2022 and confirmed it had no concerns about Y’s admission.
18. Mrs X made a formal complaint to the Council in early July 2022 as she had still not received a draft EHC plan for Y.
19. The Council responded to Mrs X’s complaint on 20 July 2022. The Council upheld the complaint and acknowledged there had been delays in issuing Y’s EHC plan following the annual review.
20. The Council sent Mrs X Y’s draft EHC plan on 27 July 2022. Mrs X provided the Council with comments on 14 August 2022. The Council issued Y’s final EHC plan on 25 August 2022.
21. Y started at the post-16 placement in September 2022 with a new EHC plan in place.
22. In April 2023, Mrs X contacted the Council and asked it to escalate her complaint to stage two. Mrs X raised concerns about the time taken to issue Y’s EHC plan. Mrs X also complained she had received information relating to another child in the post from the Council.
23. The Council responded to Mrs X in late April 2023. The Council said it provided its stage one complaint response to Mrs X in July 2022 and upheld her complaint. The Council said it had nothing further to add to this. The Council acknowledged a data breach occurred when Mrs X was sent someone else’s information, however the Council said it sent an officer to Mrs X’s home to collect this information. Following this, the Council said it reported the breach to the Information Commissioner’s Office.

Analysis

24. The Council was at fault for delaying in issuing Y’s EHC plan following the annual review in July 2021. Y did not receive a draft EHC plan until July 2022, with the final plan completed in late August 2022. As Y was transitioning into post-16 education the Council should have issued a final EHC plan by 31 March 2022.
25. The Council recognised there were delays in completing the EHC plan when it responded to Mrs X’s complaint. While this is welcomed, I am also satisfied Mrs X and Y suffered injustice from the delays.
26. The EHC plan was supposed to be completed by 31 March 2022. This would have given Y’s school and their post 16-institution time to fully plan Y’s transition into post 16-education. The fact the Council only completed the EHC plan in late August 2022, and Y was due to start the post 16-institution in early September 2022, meant Y did not know what support would be in place at the start of term. Mrs X said this caused Y significant anxiety and worry.
27. Mrs X also spent time chasing the Council for the amended draft EHC plan. Mrs X eventually made a formal complaint as she had not received this. Had the Council carried out the amendments and issued the EHC plan within the statutory timeframe, I consider it unlikely that Mrs X would have complained.
28. Mrs X also raised data protection issues as she was sent information belonging to another child. The Council acknowledged it had sent someone else’s information to Mrs X and arranged for an officer to collect this from Mrs X’s home. The Council also reported the breach to the Information Commissioner’s Office. I am satisfied this was an appropriate response from the Council.

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Agreed action

29. Within one month of my final decision the Council agreed to carry out the following:
• Provide Mrs X and Y with a written apology for the delay in amending and producing Y’s EHC plan.
• Pay Mrs X £400 to acknowledge the distress and uncertainty caused to her and Y as a result of the delays in completing the amendments and producing the EHC plan.
• Look at what went wrong in this case and why there were significant delays and produce an action plan to demonstrate how the Council will meet statutory timescales for annual reviews.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation and found the Council was at fault for delays in amending and completing an EHC plan. This caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman