Summary: Ms F complains the Council delayed issuing her son’s education, health and care plan following an annual review. We found fault which frustrated her appeal rights and caused time and trouble to Ms F. The Council has agreed to apologise and make a symbolic payment to remedy this.

The complaint

1. Ms F complains the Council has delayed issuing her son’s EHC plan following the annual review. Ms F says this is a problem every year and the delays cause her distress, frustrate her appeal rights and mean she has to spend significant time pursuing the Council.

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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. 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.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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)
7. 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

8. I spoke to Ms F about her complaint and considered the information she sent, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice, January 2015 ("the Code").
9. Ms F 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

Special educational needs

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

13. The Code says councils must review a child’s EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
14. The first review must be held within 12 months of the date when the EHC plan was issued. They must then be held within 12 months of any previous review. A council can consider holding the review sooner than this if there is a change in the child’s circumstances.
15. Councils are responsible for ensuring annual reviews take place, but they ask schools to convene them. Schools must invite a local authority SEN officer and a local authority social care representative, and circulate any information, at least two weeks before the meeting. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan. (SEND Code of Practice 2015, paragraph 9.176)
16. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend it, or cease to maintain the plan. It must then tell the child's parent and the school its decision. Parents have a right of appeal to the SEND Tribunal about this decision.
17. If the Council agrees to amend the plan, it must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a 2022 high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))

Complaint procedures

18. The Council has a two-stage corporate complaint procedure. Its complaint policy says if the complainant is dissatisfied with the outcome of the stage one response, they must specify the reasons for wanting to proceed to stage two. Simply stating that they are unhappy with the response is not sufficient.

What happened

19. Ms F has a son, M, who has special educational needs and an EHC plan. There was an annual review on 4 July 2022, the next annual review was therefore due by 4 July 2023. It was held on 29 June 2023 after an EHC plan had been issued in January, about six weeks late.
20. M’s school sent the report of the June 2023 review to the Council on 17 July. This included suggested changes to his needs and educational outcomes in the EHC plan. The Council emailed Ms F on 31 August. It said would issue a decision whether it would amend the EHC plan in four weeks.
21. Ms F complained on 1 October that there was still no decision to amend the EHC plan or any draft or final plan. The Council’s complaint response on 16 October apologised for the delay. It said the Council was “trying its utmost” to meet deadlines but had had staff shortages and a high turnover of staff. M’s school was aware of the suggested changes to the plan, so the Council did not consider M was missing out on provision.
22. Ms F asked to escalate her complaint to stage two. She said even though M was getting some provision she was awaiting an update about a speech and language therapy session. She had also made three other complaints about issues caused by staff shortages. She wanted the Council to address the capacity issues, ensure there were no further delays, and say when M’s EHC plan would be issued.
23. The Council refused to investigate at stage two. It said it was satisfied the stage one response fully addressed the complaint and that Ms F had not provided any new information or evidence that there had been flaws in the stage one investigation.
24. Ms F came to the Ombudsman. She said she spends 15 to 20 hours each year chasing the Council and attending meetings. This caused her anxiety, stress, and loss of income. She has also had to supplement her son’s learning by paying for tutors and therapists as she cannot appeal the content of the EHC plan until she receives the final.

My findings

25. Following the annual review on 29 June 2023, the Council should have issued a decision whether it intended to amend the EHC plan within four weeks (by 27 July). It did not send this until 20 October; this is fault.
26. To be in line with the 12-week timescale set by the High Court, the final EHC plan should have been issued by 21 September. It was not issued until 21 November, nine weeks late. This is fault.
27. The delay meant Ms F’s right to appeal was delayed by two months and has caused her time and trouble as she had to pursue the Council and complain in order to get a plan for M. This is her injustice.
28. I do not consider the delay caused any significant injustice to M. This is because the outcome of the review (and the content of the new plan) was to amend his outcomes and SEN, but there were no changes to the provision that was already in place. So I do not consider that the delayed plan caused M to miss out on SEN provision.
29. I find there was no fault in the Council’s decision to refuse to escalate the complaint to stage two. Its policy says the complainant should set out reasons why a stage two investigation is required. The Council was therefore entitled to determine that Ms F had not done so and reject the request.
30. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says a moderate, symbolic payment may be appropriate for time and trouble or delayed appeal rights. The amount reflects the degree of extra difficulty experienced by the complainant, and any factors which make the complainant vulnerable. We do not recommend repayment of the actual costs (such as time, postage and phone calls) associated with making a complaint.
31. Ms F says she has had to take time off work. We do not normally recommend remedies that reimburse loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. Such payments are therefore best resolved by the courts.
32. In a recent response to another complaint about delays in annual reviews, the Council said it had improved its monitoring and oversight of annual reviews. In response to my enquiries on this case, it said it was recruiting every month to ensure that all vacant posts are filled in as soon as possible. It also had a strategic plan to improve its services to children. It would be looking to upskill educational settings, professionals and parents to ensure EHC plans were not used as a replacement for individual learning plans with short term outcomes.
33. This is welcome, though I note that even if EHC plans contain longer term outcomes, the Council is required by law to review them every year. It must therefore have a robust system to keep track of when reviews and decisions are due. It should also contact parents/carers to keep them updated if there is a delay in issuing a post annual review decision, or a draft EHC plan. This is to prevent parents having to chase. But as the Council has a strategic improvement plan, I have not made any service improvement recommendations.

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Agreed action

34. Within a month of my final decision, the Council has agreed to apologise to Ms F and pay her £300 to remedy the delay in appeal rights and time and trouble she has been caused.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman