Summary: Mrs X complained the Council delayed issuing her son, F’s Education, Health and Care (EHC) Plan following annual reviews in 2022 and again in 2023 after the conclusion of her appeal to the SEND tribunal. The Council was at fault. It failed to issue an amended plan following an annual review in March 2022 and then delayed issuing a plan following a post-16 transition review. The Council agreed to make a payment to Mrs X to acknowledge the distress and uncertainty caused to her. It will also carry out service improvements.

The complaint

1. Mrs X complained the Council delayed issuing her son, F’s amended Education, Health and Care (EHC) Plan by a year following an annual review in March 2022.
2. Mrs X said the delay meant F’s transfer to post-16 education in 2023 was stressful and delayed her right of appeal to the SEND tribunal. Mrs X said the delay caused distress and 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 spoke to Mrs X about her complaint and considered information she provided.
7. I considered information from the Council and its complaint response to Mrs X.
8. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Education, Health and Care (EHC) plan

9. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Reviewing EHC Plans

10. 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.
11. 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. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 5 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

Post-16 transition planning

13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

SEND tribunal

14. 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.
15. There is a right of appeal to the tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• a decision not to amend an EHC Plan following a review.
16. Where the SEND tribunal makes an order requiring the Council to amend the special educational provision specified in an EHC Plan then the Council must issue the amended plan within 5 weeks of the order being made.

What happened

17. Mrs X has a son, F, who has special educational needs (SEN) and a diagnosis of autism. He has an EHC Plan and in early 2022 attended a special school in year 10. F was due to transition to post-16 education in September 2023. Mrs X’s preference was the sixth form college attached to F’s current school.
18. The school held an annual review in March 2022. Following the annual review, the Council told Mrs X it intended to amend F’s EHC Plan.
19. The Council did not issue an amended EHC Plan following the March 2022 annual review. It held a transition annual review in September 2022 to plan for F’s post-16 education the following year.
20. In September 2022 Mrs X complained to the Council it had not issued either a draft or amended final plan following the annual review in March 2022. The Council responded and apologised. It said its services had suffered severe and unprecedented staff shortages which it said contributed to its failure to meet timescales. The Council said as it had recently held the transition review it did not see the point in progressing anything from the March annual review and would instead progress the more recent one. The Council said it would issue a decision letter within four weeks and then issue an amended EHC Plan. In line with statutory timescales this means the Council should have issued F’s amended EHC Plan by mid-December 2022.
21. Mrs X did not hear from the Council until she contacted it at the start of 2023. She pointed out that she had not had any decision about what the Council intended to do with F’s EHC Plan following either the March or September 2022 annual reviews. Mrs X asked the Council to issue a final amended plan without further delay.
22. The Council told Mrs X it was waiting for post-16 placement consultation responses. It said it had until 31 March to issue the final plan which it assumed would be satisfactory to Mrs X.
23. Records show the Council, on Mrs X’s request issued F’s amended final EHC Plan at the start of February 2023. The content and provision remained unchanged from F’s previous plan initially reviewed in March 2022. The Plan said F’s current placement would end in July 2023.
24. Mrs X was unhappy with the content of the EHC Plan including the provision outlined in section F and the lack of named post-16 placement. So, she appealed to the SEND tribunal.
25. The Council issued an initial response to Mrs X’s appeal in March 2023 agreeing to name the sixth form college attached to F’s current school, as Mrs X requested. It said it will continue to work with Mrs X around changes to the content of the plan. In mid-May 2023 the Council conceded Mrs X’s appeal around the content of the plan and asked it to issue a consent order.
26. At the end of June 2023 Mrs X complained again to the Council. She referred to all of the past delays following annual reviews in March and September 2022. She further complained that to date, the Council had failed to issue F’s amended EHC Plan following its concession to the tribunal. Mrs X said the continuous delays were causing her stress and uncertainty.
27. The SEND tribunal issued the consent order on 10 July 2023.
28. The Council responded to Mrs X’s complaint at the end of July 2023. The Council reiterated the initial delay following the March 2022 annual review was caused by staffing and capacity issues. It blamed an inexperienced member of staff for failing to progress F’s post-16 transition annual review in September 2022. The Council apologised for both of the delays. The Council said the tribunal issued the consent order on 10 July 2023. It said therefore, it had 5 weeks to issue F’s amended plan from the date of the order.
29. The Council issued F’s amended EHC Plan on 8 August 2023. F started his post-16 education in September 2023 and Mrs X confirmed there were no breaks or disruption to his education because of the delays outlined above. The provision in the plan issued in February 2023 was also identical to that of the previous plan, so F did not miss out on any provision because of the delays.
30. Mrs X remained unhappy and complained to us.

My findings

31. Following F’s annual review in March 2022 the Council should have issued his amended final EHC Plan by mid-June 2022. It failed to do so and failed to properly communicate with Mrs X about it. This was fault.
32. The Council held another annual review in September 2022 to prepare for F’s transition to post-16 education. Following this review, the Council should have issued an amended final EHC Plan by mid-December. If failed to do so which is fault. The Council’s initial complaint response to Mrs X inferred that it had until 31 March 2023 to issue his plan. This is incorrect. 31 March 2023 is the latest date by which a Council should issue an amended plan in a transition year. However, it should still comply with statutory timescales following the annual review, which in this case was mid-December 2022. Therefore, the Council’s complaint response was flawed which is fault.
33. The Council issued F’s amended EHC Plan at Mrs X’s request in February 2023 which is a year after it initially reviewed it. Mrs X appealed which the Council ultimately conceded and the tribunal issued a consent order in June 2023. In the line with the regulations the Council issued the plan within 5 weeks of that order in August 2023.
34. The Council eventually issued F’s amended EHC Plan in August 2023. Mrs X has confirmed that the faults outlined above did not affect F’s education and he began at his post-16 placement as planned. However, the continuous delays since March 2022 have caused Mrs X distress and uncertainty and she has had to consistently chase the Council to progress things. It also delayed her right of appeal to the SEND tribunal. I have therefore made a recommendation for the Council to remedy this injustice Mrs X experienced.

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Agreed action

35. Within one month of the final decision the Council agreed to:
• apologise to Mrs X and pay her £500 to recognise the distress and uncertainty caused to by the delays in progressing F’s annual review and issuing an amended final plan.
• Explain what action it has taken since 2022 to resolve the staffing issues in its SEND department which the Council stated caused the delays identified in this case.
• If staffing issues still exist, it should produce an action plan within two months of the final decision of how it intends to recruit and train staff to prevent future delays in statutory Education Health and Care Plan processes.
36. Within two months of the final decision the Council should carry out training with its SEND staff and those staff who respond to complaints about the Education Health and Care Plan process. The training should include the statutory timescales following annual reviews and reviews carried out prior to transitions.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I completed this investigation. I found fault and the Council agreed too my recommendations to remedy the injustice caused by the fault and also to prevent recurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman