Summary: There was a sixteen week delay in the Council issuing an amended final EHC Plan after an annual review meeting. There was also a failure to resolve the complaint at local level. This caused injustice. The Council will apologise, make a symbolic payment and consider service improvements.

The complaint

1. Ms X complains about delay in amending an Education, Health and Care (EHC) Plan after an annual review.
2. Ms X says this has delayed additional provision and meant she has had to fund private tuition during the period of delay.
3. Ms X says she paid a legal adviser to help her with the annual review meeting and EHC Plan amendments, and the Council agreed to changes, but the member of staff then left and the work she and her legal adviser had put into amending the Plan was then wasted, as the next Officer was unaware of the previous discussions and agreements.

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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 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)
5. 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

6. I have considered information provided by the Council and Ms X including:
• Draft and final EHC Plans
• Complaint correspondence and correspondence about the annual review and EHC Plan.
7. I have considered relevant law and statutory guidance:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
8. 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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What I found

Relevant law and guidance

9. A council must arrange for an 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

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.

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)(a) 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. Regulation 22(3) says where the Council decides to amend the EHC Plan it must issue the finalised Plan as soon as practicable and in any event within eight weeks of the amendment notice sent in accordance with Regulation 22(2)(a).

13. This means the maximum time to issue a final amended EHC Plan after a review meeting is twelve weeks.

What happened

14. Ms X’s child’s annual review meeting was held in late June.

15. The Council decided to amend the Plan within the four-week timescale.

16. The amended final EHC Plan was due by mid-September. The Council did not issue it until early January 2024, which was sixteen weeks late. The Council has acknowledged this delay.

17. Ms X and her legal adviser met with an Officer to go through amendments and agreed the Officer would contact therapists about targets to include in the amended Plan. This Officer was then absent, and another Officer took on the case. This Officer had not been present at the meeting with Ms X and her adviser and did not know what had been agreed. Ms X said this meant the meeting was a waste of time and legal costs.

18. Ms X told me she paid for additional tuition for her child during the period of delay. However, the evidence Ms X has sent me shows this took place in the school Summer holidays, before a final amended Plan was due.

19. Documents show Ms X and the School raised concerns about the funding attached to the Plan. The Council reviewed this and agreed to increase it in late October, but Ms X again said the funding was insufficient.

20. The Council told us it commissioned agreed changes to speech and language therapy provision before the final Plan was issued, and this was in place in September. The Council told me the School had put in place provision that exceeded Council funding. The Council later agreed to increase the funding and backdated this to September when the final Plan should have been issued. The Council says that the child did not miss out on support due to the delay as the school was providing this.

21. The Council acknowledged in its reply to the Ombudsman there had been a sixteen-week delay. It said it would:
• Make a further apology.
• Offer £700 in recognition of the delay, distress and inconvenience caused.

22. Ms X told me it was not accurate that the School was able to make all the provision in September without the extra funding. Ms X told me it was only in January 2024, when the final Plan was issued and additional funding provided, that the School was able to recruit a learning support assistant to work with her child.
23. Ms X remains concerned about the staffing issues and poor communication she experienced and whether other families are similarly affected.

Analysis

24. The Council has admitted delay. It has also previously acknowledged staffing and capacity issues when it reorganised its staff and apologised to Ms X. It has acknowledged it failed to follow up agreed actions earlier in the complaint process.
25. It does appear there has been some missed provision as the School is now seeking to recruit extra staff. The Ombudsman’s Guidance on Remedies recommends a symbolic payment of £900 to £2400 per term for missed provision, depending on the circumstances. The offer of £700 is therefore low even though the child was in fulltime education, it seems likely on the balance of probabilities the School will have struggled to implement all the requirements of the proposed EHC Plan without additional staff.
26. I am not persuaded private tuition costs resulted from the Council’s delay; these were incurred before the final Plan was due.
27. The Ombudsman does not generally make a recommendation to reimburse legal costs where someone has exercised a personal preference to use legal advisers for an otherwise no-cost process, no matter how frustrating or difficult that process is to navigate at times. I can see no reason to depart from this position in this case. There is no evidence significant additional legal costs arose as a result of the Council’s delay.

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Agreed action

Within four weeks of my final decision:

28. The Council will apologise to Ms X for the delay and its impact.
29. The Council will pay Ms X £900 to acknowledge the impact of the delay on her and her child.

Within two months of my final decision:

30. The Council will review:
• Whether the staffing changes implemented in Autumn 2023 have resolved problems with delays in completing annual reviews and poor communication; and
• Whether it has systems in place to ensure actions agreed in complaints are followed up within agreed timescales. Good complaint handling upstream may have prevented Ms X needing to bring her complaint to the Ombudsman.
31. The Council will provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. There was a sixteen week delay in the Council issuing an amended final EHC Plan after an annual review meeting. This caused injustice. I am satisfied the above agreed actions are a satisfactory remedy. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman