Summary: There was fault in the Council delaying finalising a child’s Education, Health and Care plan. This fault caused Mrs X and her son an injustice because the delay caused them avoidable distress. It also meant her son now also has uncertainty about whether he had a proper transition into his new education placement. The Council have agreed to my recommendations about how to remedy these injustices.

The complaint

1. Mrs X complained the Council did not follow the required timescales after a review of her son’s Education, Health, and Care plan (EHCP). She said because of the delays, her son (Y) missed out on proper preparation for a post-16 education placement, and this caused him distress.
2. Mrs X said this situation also caused her avoidable distress and anxiety because of the uncertainty she had about a future placement, and because she was constantly following up with the Council about finalising the plan.

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The Ombudsman’s role and powers

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. 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted). How I considered this complaint

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How I considered this complaint

7. I spoke to Mrs X and considered the information she provided.
8. I considered the Council’s comments and the documents it provided.
9. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Arrangements for reviewing an EHC Plan

11. The procedure for reviewing and amending EHC plans is contained in legislation and government guidance.
12. 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)
13. 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)
14. 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)

EHC reviews

15. Recent caselaw says 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 it sends the decision letter R (L, M, and P) v Devon County Council [2022] EWHC 493

Gathering advice for assessments

16. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

17. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.

Post-16 – review, provision and naming placement deadline

18. 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 Council by 31 March in the calendar year of the transfer. 

What happened

19. In late November 2022, the Council reviewed Y’s EHCP. During the review meeting, Mrs X and the Council discussed the need for amendments and this included a further consultation with an Educational Psychologist (EP), to support an amended EHCP. The Council told Mrs X at this point; this may delay it finalising Y’s EHCP.
20. In early December, Mrs X said she wanted the Council to amend Y’s EHCP irrespective of any updated advice and to do this as soon as it was able. Mrs X said any delays would have a negative impact on Y’s wellbeing, in what was an important year because he was moving to a post-16 education placement.
21. In mid-December, the Council wrote to Mrs X saying it agreed it would amend Y’s EHCP and sent her the notes of the review meeting. The Council also told Mrs X it would send a draft EHCP in due course.
22. Mrs X said in February, she again raised her concern there would be delays because of the Council waiting for the EP report. Mrs X met with a senior officer from the Council, around this time to talk about her concerns.
23. The notes of that meeting, reflect that Mrs X was Thinking about two colleges for Y to go to, including College A. The notes also show Mrs X raised her concern the Council had not sent her an amended EHCP.
24. In late March, the officer met with Mrs X again. The notes reflect Mrs X told the Council she was happy that College A would be suitable for Y, with reasonable adjustments in some subjects.
25. At this meeting, the Council updated Mrs X it would not meet the deadline for completion of Y’s EHCP, because they did not have the EP report yet. The notes show they gave her some assurances around the steps it was taking to mitigate against the delayed report, and it arranged to let College A know that it would be sending it a consultation about Y.
26. The notes also suggest there was a discussion about transport training for Y, in anticipation of a change in placement.
27. The EP sent their report to the Council in mid-April and four days after this, it sent Mrs X a draft EHCP.
28. Mrs X subsequently asked to escalate her complaint and in May, the Council replied to her request. It said it was aware of her concerns about the delays and accepted it had not completed the draft EHCP within the required timescales. The Council said it thought Mrs X would not be unhappy about this because she was aware it was getting up to date advice.
29. Mrs X was then in continuous contact with the Council about a placement for Y, due to take effect from September 2023 onwards. In late June, it told Mrs X it was confident it would be able to name College A, as the post-16 education placement in Y’s final EHCP.
30. In early August 2023, the Council issued Y’s EHCP, which it noted as amended for preparation for post 16 education and named College A as the placement.

My findings

Pre-draft EHCP phase

31. For the Council to comply with the timescales laid out in statutory guidance, it should have issued a draft EHCP by late December 2022 and it did not do so until mid-April 2023, which was a delay of almost four months.
32. This was fault by the Council; however, I would describe this fault here as a service failure. Our guidance says service failure is an objective view of what happened in any set of circumstances. It says it does not involve any judgement about the Council’s intentions or specific flaws in process. It also says this can be evident where a policy does not work because of factors outside the Council’s control and despite its best endeavours.
33. In this instance the availability of an up-to-date EP report, for which the arrangements were ongoing, and the Council was aware was ongoing, meant the Council were unable to meet the deadline its duty required it to meet.
34. I acknowledge Mrs X will have a view the Council could have finalised the EHCP without this advice. However, the Council provided me with information to suggest Mrs X requested this additional advice and was aware through meetings she had with the Council, that this may add to delays in issuing the EHCP within the required timescales.
35. I find on balance; the Council was likely considering its duty to ensure advice was current. Nonetheless it added to the overall delay in finalising the process which caused Mrs X an injustice and I have considered this later in this report.

Post-draft phase

36. The guidance says once the Council have issued a draft EHCP, it then has eight weeks to issue a final EHCP. In this case, having issued a draft in April, it should have finalised Y’s EHCP in June, and it did not do so until August. This was a further delay of just under two months.
37. This was fault by the Council, and it added to the overall delays in the process.
38. In addition, if but for the delays I have highlighted, because Y was moving to a post-16 education placement, the Council in any case should have finalised his EHCP by 31 March to ensure proper transition planning. This too was fault.

The injustice to Y and Mrs X

39. The faults by delaying finalising Y’s EHCP, both in overall terms and the deadline for post-16 transition, caused Y an injustice. It likely caused him avoidable distress through uncertainty because the Council did not confirm his placement until later than it should have been. He then had uncertainty because of a concern about whether he missed out on a smoother transition to his new placement. The Council have agreed to my recommendation about an appropriate remedy for Y’s injustice.
40. The faults I have highlighted caused Mrs X avoidable distress and uncertainty about the future education provision for Y. The Council have already acknowledged there were delays in the process, and I note it took reasonable steps to try and minimise the impact on Mrs X’s uncertainty, in so far as it was able. It has agreed to send a letter of apology to Mrs X to fully remedy her injustice.
41. In July 2023, we issued a recommendation to this Council asking it to take steps to improve its timeliness relating to EHCPs. Because the Council agreed to this, I do not need to make any service improvement recommendations.

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Agreed action

42. To remedy the injustice caused by the faults identified, the Council have agreed to complete the following within six weeks of the final decision:

• Send Mrs X a written apology for her injustice caused by its delays in finalising Y’s EHCP.
• Pay Mrs X £350 for Y in recognition of the avoidable distress and uncertainty I have described.

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

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Final decision

44. There was fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman