Summary: Ms X complains about the Council failing to keep to the statutory timescales in completing her child’s Education, Health and Care plan (EHCP) after the annual review. We find fault with the Council for delay, and have agreed a symbolic payment for the frustration and distress caused to Ms X.

The complaint

1. Ms X complains the Council failed to adhere to statutory timescales in producing the final amended EHCP for her child after the annual review meetings.
2. The Council sent the final EHCP to Ms X without giving her enough time to send her amendments, and then delayed issuing the final EHCP.
3. Ms X says the Council needs to produce accurate EHCP’s on time.

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The Ombudsman’s role and powers

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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.
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)

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How I considered this complaint

7. I spoke with Ms X and considered the information she provided.
8. I made enquiries with the Council and considered the information it provided.
9. Ms 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 background

Education, health and care plan

10. A child with special educational needs may have an Education, Health, and Care plan (EHCP), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.

Annual reviews

11. The procedure for reviewing and amending an EHCP is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or cease to maintain the EHCP. This is the annual review. Each annual review must take place within 12 months of the last.
12. Where a council proposes to amend an EHCP, 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. The Special Educational Needs and Disability Code of Practice states if a council decides to amend the plan, it should start the process of amendment “without delay”.
13. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. 
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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents.
15. Caselaw from March 2022 clarified the timetable for annual reviews. The High Court decided that if a council intends to amend a child’s EHCP, it must send the draft EHCP (amendment notice) along with the notification it intends to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHCP.
16. 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.

What happened

17. Ms X has a child Y, who has an EHCP.
18. The annual review for Y was held on 13 September 2022. The Council sent the decision to amend letter and the proposed amended EHCP to Ms X on 6 December.
19. On 19 December the Council issued the final EHCP.
20. Ms X made a stage one complaint on 19 December as the Council had sent the final EHCP without allowing the full 15 days for Ms X to send her amendments.
21. The Council’s response on 23 December said the following:
• It upheld her complaint, saying the documents were logged by the Council on 29 September and at that stage a decision to amend letter should have been sent to Ms X;
• Ms X did not agree the content of the proposed amended EHCP’s so the Council said the EHC co-ordinator would contact her by the 13 January 2023 to arrange a suitable meeting date to discuss;
• It apologised for the service falling short of expected standards, and said to address this it has carried out a “full SEND pathway review and has restructured the SEND team to enable it to ensure a consistent approach to delivering the statutory process”.
22. Ms X made a stage two complaint on 16 January as she had not yet been contacted by the EHC co-ordinator as promised. She also said:
• She “continued to have severe concerns around communication, statutory framework and ‘oversights’ by the SEND team”;
• She wanted to understand the issues causing the problems, and;
• She has had to make many complaints to the Council within the past two years which was stressful and she always gets this “generic response”.
23. The Council’s stage two response dated 27 February said the final EHCP had not been reissued following the early issue of it on 19 December, and apologised for the frustration this has caused. It upheld her complaint and said the Casework Team Leader would contact her on 2 March to arrange a meeting to discuss the further amendments to the EHCP’s.
24. The Council issued the further proposed amended EHCP on the 6 April and 10 May.
25. Ms X was dissatisfied with this response so she brought her complaint to the Ombudsman. She received the final EHCP on 30 May.
26. Y did not miss any specialist provision because of the delay, as the school continued to provide it as stated in the previous EHCP.

Analysis

27. The Council admits fault in sending the final EHCP too early and for not completing the EHCP within the statutory timescales (see paragraphs 12 – 14 above). This is fault causing frustration and uncertainty to Ms X, and delaying her appeal rights.
28. I welcome the Council’s recognition that it failed to take proper account of its duties, and that it is acting to ensure this does not reoccur.

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Agreed action

29. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration.
30. Within one month of the Ombudsman’s final decision, the Council will:
1. Send Ms X a personalised apology for the faults identified above; and
2. Pay Ms X £150 in recognition of the distress and uncertainty caused by the delay in completing the EHCP in line with statutory timescales.
31. We note the Council have restructured the SEN team following previous service improvements recommended by the Ombudsman. I have not made a service improvement as we will monitor the impact of these changes through our complaints.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I find fault with the Council for failing to keep to statutory timescales in issuing Y’s final EHCP after the annual review. I have recommended a symbolic payment for the distress and frustration caused to Ms X.

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Investigator's decision on behalf of the Ombudsman