Summary: Ms X complained about the Council’s actions in relation to her child’s, Y, Education, Health and Care Plan (EHC Plan). The Council was at fault. It failed to send Ms X a decision letter following the annual review meeting and then delayed issuing the final EHC Plan. This caused Ms X distress, frustration and uncertainty. The Council has already apologised to Ms X and offered her a symbolic payment. It has also made service improvements to prevent a recurrence of fault. This was appropriate.

The complaint

1. Ms X complained about the Council’s actions in relation to her child’s, Y, Education, Health and Care Plan (EHC Plan). She said the Council:
• completed an annual review of Y’s EHC Plan but did not send her a decision letter following the meeting; and
• delayed issuing the final amended EHC Plan.
2. Ms X previously complained about the same matter. Ms X said she had to obtain private legal advice. She said it has caused her distress, frustration and uncertainty. She wants the Council to recognise the fault, put service improvements in place and reconsider its remedy it has offered to her.

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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. 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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.

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How I considered this complaint

7. I spoke with Ms X and considered the information she provided.
8. I considered information provided by the Council.
9. I considered our “Guidance on remedies”.
10. Ms X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans (EHC Plans)

11. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
12. Councils are 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.

Arrangements for reviewing an EHC Plan

13. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
14. 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)
15. 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)
16. 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)

Appeal rights

17. 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. 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.

Background

18. Ms X’s child, Y, has special educational needs and an EHC Plan. Y attends a specialist school.
19. Earlier in 2022, Ms X complained the Council did not send her a decision letter following an annual review meeting in 2021 and then delayed issuing the EHC Plan. The Council accepted fault and provided Ms X with a personal remedy. The Council also said it had made service improvements to prevent a recurrence of fault.

What happened

20. Towards the end of November 2022, the Council completed an annual review of Y’s EHC Plan. Ms X said during the annual review meeting, the Council did not indicate whether it would maintain or amend the EHC Plan. Ms X wanted Y to remain at the same school and so was concerned if this would happen.
21. By March 2023, Ms X had not received a decision letter or any other communication from the Council in relation to Y’s EHC Plan. As a result, Ms X sought private legal advice and complained to the Council. She said the Council had failed to comply with statutory timescales following the annual review meeting, despite it making service improvements following a previous complaint she made about the same issue.
22. At the end of March 2023, the Council issued a final amended EHC Plan with Y’s placement remaining the same.
23. Between March 2023 and May 2023, the Council investigated Ms X’s complaint via all three stages of its complaints procedure. Ms X had requested the Council to escalate her complaint further as she noted the Council’s response at stage two contained errors around when it should have issued a final amended EHC Plan following an annual review meeting.
24. The Council responded to Ms X and:
• accepted it did not send Ms X a decision letter following the annual review meeting and that it had delayed issuing the final amended EHC Plan. The Council apologised to Ms X;
• explained to Ms X it had faced challenges whilst it was working to improve its Special Educational Needs services. It gave Ms X an update of its plan to continue to improve the services; and
• told Ms X its stage two response contained a typographical error in relation to its understanding of when it should have issued a final amended EHC Plan.
25. The Council offered Ms X the following payments as part of its remedy:
• £200 for the distress and uncertainty caused by not complying with the statutory timescales in relation to amending the EHC Plan;
• £250 for delaying Ms X’s appeal rights to SEND Tribunal and for Ms X having to seek advice from a solicitor due to the Council’s errors; and
• £150 for the time and trouble Ms X went through complaining to the Council.
26. Ms X did not accept the Council’s remedial payment offer. She remained unhappy and complained to us.

The Council’s service improvements

27. In a similar case against the Council 22003230 we found the Council failed to comply with statutory timescales following an annual review meeting of an EHC Plan. We therefore recommended service improvements which the Council agreed to action. This included for the Council to review the annual review process to ensure staff:
• sent a decision letter and/or notification letter within four weeks of an annual review meeting; and
• issued a final amended EHC Plan within 12 weeks of the annual review meeting.
28. In May 2023, upon receiving evidence from the Council, we were satisfied it had complied with the above actions.

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Findings

29. The annual review meeting took place towards the end of November 2022. The Council did not send Ms X a decision letter following the meeting. This was fault and was not in line with legislation.
30. The Council amended the EHC Plan and issued a final EHC Plan at the end of March 2023. Considering the annual review took place towards the end of November 2022, it should have issued the final amended EHC Plan by mid-February 2023. This was fault and not in line with legislation.
31. I recognise Ms X has had to complain to us again about the same matter and was unhappy the Council had not learned from its previous fault. However, I have seen evidence the Council has now made service improvements which were appropriate and so I will not be recommending further service improvements.

Injustice

32. The Council’s fault caused Ms X distress, frustration and uncertainty. Ms X:
• had previously complained about the same matter;
• was left with uncertainty in relation to Y’s school placement; and
• sought private legal advice.
33. Since Ms X’s complaint, the Council recognised the injustice it caused to Ms X. It apologised to her and offered her a symbolic payment of £600 in total. This was appropriate and in line with our “Guidance on remedies”. It is open to Ms X to accept the Council’s offer.

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Final decision

34. I have now completed my investigation. The Council was at fault. It has already remedied the injustice caused to Ms X and made service improvements to prevent a recurrence of fault. This was appropriate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman