Summary: There was delay in amending Y’s Education Health and Care plan following an annual review. This caused avoidable uncertainty and a delay in appeal rights. The Council will apologise, issue the final plan and make a payment as set out in this statement.

The complaint

1. Mrs X complains about delay in the annual review her child Y’s Education Health and Care (EHC) plan.
2. She says the delay frustrated her right of appeal and caused avoidable uncertainty.

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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).

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How I considered this complaint

6. I considered the complaint to us and the Council’s responses to the complaint.
7. Mrs 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

Relevant law and guidance

8. EHC plans must be reviewed each year. The school is generally responsible for holding and leading the review meeting. (SEND Code paragraph 9.175)
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. (Regulation 20(10) Special Educational Needs and Disability Regulations 2014 and SEND 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. The council must send these documents within four weeks of the annual review meeting. (Regulation 22(2) Special Educational Needs and Disability Regulations 2014 and SEND 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. (Regulation 22(3) SEND Regulations 2014 and SEND 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.

What happened

13. Y has an EHC plan and is in Year 6. There was an annual review meeting on 18 April 2023 when Y was in Year 5.
14. Mrs X complained to the Council on 19 June. She said she had not received its decision to maintain, cease or amend Y’s EHC plan.
15. The Council upheld Mrs X’s complaint. It accepted Mrs X should have had a decision by 15 May and a final amended plan by 11 July. The Council offered Mrs X a payment of £200.
16. The Council issued a draft amended plan on 8 September. Mrs X complained to us on 12 September. At the time of writing this statement, the Council has not issued Y’s final plan.

Findings

17. The Council is at fault. It has not issued Y’s final EHC plan which was due by 11 July to be in line with the 12-week timescale set out in the SEND Code. This is a delay of four and a half months and continuing. It caused delay in appeal rights and avoidable uncertainty about Y’s educational provision.

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Agreed action

18. Within one month of my final decision, the Council will apologise, issue Y’s final EHC plan and make Mrs X a symbolic payment of £300.
19. The Council should provide us with evidence it has complied with the action in paragraph 18.

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Final decision

20. There was delay in amending Y’s Education Health and Care plan following an annual review. This caused avoidable uncertainty and a delay in appeal rights. The Council needs to apologise, issue the final plan and make a payment as set out in this statement.
21. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman