Summary: Mr X complained about the Council’s significant delay in issuing a final amended Education, Health and Care Plan for his daughter after an annual review. We found the Council issued an appropriate remedy in its final complaint response to him. But we found further fault as it took an additional two months to issue a final plan after this. The Council has agreed to remedy the remaining injustice with a small symbolic payment.

The complaint

1. Mr X complains about the Council's failure to issue an amended Education, Health, and Care Plan within legal time frames for his daughter after an annual review, and its failure to keep him updated. This delay has caused significant distress, uncertainty and frustration as it delayed confirming the school she should attend and if any extra support should be in place for his daughter and her needs.

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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 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)
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 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

5. I discussed the complaint with Mr X and considered his views.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. Mr 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

Law and administrative background

Education, Health and Care Plans (EHC Plan)

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections:
• Section B: The child or young person’s special educational needs (“SEN”)
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of school.

Annual Reviews

9. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
10. Within four weeks of a review meeting, the 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) 
11. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
12. If the council decides 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)

Background

13. Mr X’s daughter (“C”) attended the “School”. She has an Education, Care, and Health Plan (“EHC Plan”).

What happened – summary of key relevant events

14. In mid-November 2022, the School conducted an annual review of C’s EHC plan.
15. In late June 2023, Mr X formally complained. He said he had chased for updates from the Council about progress with no responses or resolutions. He wanted to know the formal outcome of C’s annual review.
16. In early July, the Council responded at Stage One. It apologised for the poor communication and said the allocated officer had recently left the service. It had assigned a new officer who would be in contact about C’s case. Mr X escalated his complaint. He wanted confirmation, through a final EHC plan, of whether C would continue to attend the School from September.
17. In mid-August, the Council responded and upheld his complaint at Stage Two. It accepted fault for exceeding statutory timelines to issue a decision (should have been by mid-December 2022) or issue a final EHC plan (which should have been by the start of February 2023) after the annual review. It upheld his complaint.
18. In late August, the Council sent an apology letter to Mr X and offered a remedy of £650. Mr X accepted the remedy payment. The Council said this covered:
• £200 for C for any uncertainty caused;
• £200 for Mr X for the time and trouble in chasing the Council; and
• £250 for the annual review process not being followed and delaying his appeal rights.
19. In late September, Mr X complained to us. He said the Council still had not issued a final EHC plan for C.
20. In late October, the Council issued C’s final EHC plan. Mr X said he was satisfied with it and did not appeal it.

The Council’s response to my enquiries

21. In response to my enquiries, the Council said the case officer delayed submitting paperwork to its internal Panel in March 2023 for a decision after the annual review. It also had administrative and technical difficulties with the systems it used, along with issues transferring the EHC plan to a new Post 16 template. These contributed to delays with the final EHC plan.
22. The Council said it had informed Mr X of its intention for C to remain at her current School placement a number of times before it issued the final EHC plan. The Council said the amendments made were not material changes about C’s needs or special educational provision she needed.
23. It accepted a gap in communication with Mr X in the period before it issued the final EHC plan. It said system issues prevented actioning of requests, along with the case officer being ill and caseloads changing after an internal service restructure. It said this was an explanation, “however, this does not excuse, nor justify the hiatus”.
24. The Council said it was performing regular updates to its system to ensure it was effective and it was reviewing the use of its systems to support case officers.

Analysis

Remedies and injustice

25. The Council accepted fault for its significant delay with issuing a final amended EHC plan after C’s annual review from November 2022.
26. I am satisfied the Council’s remedy in August 2023 to Mr X for injustice caused was in line with our recommended published Guidance on Remedies. The Council also provided a formal apology letter to Mr X at the point of this final response.
27. However, the Council still took a further two months after this to issue C’s final EHC plan. This continued delay caused further avoidable frustration to Mr X as he decided to take his complaint to us in the meantime. In its response to me, the Council also accepted a shortfall of service in some its contact with Mr X since.
28. I consider the Council should acknowledge and remedy Mr X’s further remaining injustice.

Service improvements

29. I acknowledge the action the Council is taking to address some of the factors it said contributed to the delay in Mr X’s case. Some of the issues stemmed with a new template it used and it is reviewing its necessity and possible simple modifications to it. It is also performing regular updates to the case system it uses and reviewing suggestions to improve its effectiveness.
30. However, I note there are wider issues. We have identified recurrent fault by the Council in several recent cases over the last two years, including breaches of statutory timescales for EHC plan reviews and failure to communicate to families about progress. The Council agreed to recommendations to improve services to address these, but these have continued.
31. In September 2023, Ofsted carried out an inspection of the Council’s SEND service. It identified multiple issues, including the above. Ofsted recommended areas for improvement. In response, in January 2024, the Council published the Surrey Local Area SEND Partnership Improvement Plan. This set out improvement actions to be monitored through the Council’s governance structures. In a recent Ombudsman decision, the Council agreed to consider recurrent faults identified in previous Ombudsman investigations as part of its improvement plan. In my view, these are robust steps the Council is taking and will need time to embed. Therefore, I have not considered it necessary to recommend any further service improvements.

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Agreed action

32. To remedy the further personal injustice to Mr X identified above, the Council has agreed to carry out the following actions within one month of the final decision:
• Provide a fresh written apology to Mr X about the further two month delay in issuing C’s final EHC plan after it provided its final complaint response to him; and
• Pay Mr X a symbolic payment of £100 to recognise this period of further frustration.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I found further fault with the Council which caused injustice to Mr X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman