Summary: Mrs X complained the Council delayed in reviewing and amending her child D’s Education, Health, and Care Plan, and failed to respond to her complaint about this. There was fault by the Council which caused D to miss some support for their special educational needs. The fault also caused avoidable distress, time, and trouble for Mrs X. The Council agreed to apologise and pay a financial remedy. It will also identify any changes needed to its complaint handling process so it does not fail to respond to complaints in future.

The complaint

1. Mrs X complains the Council delayed in issuing a final amended Education, Health, and Care (EHC) Plan for her child D for over a year, after it reviewed D’s Plan in July 2022. Because of this, Mrs X says:
• D missed Special Educational Needs (SEN) provision for over a year, and felt unsettled and anxious; and
• Mrs X and her husband were caused stress, frustration, and uncertainty about what would happen with D’s EHC Plan. Mrs X also spent avoidable time and trouble chasing this up.
2. Mrs X wants the Council to apologise and provide compensation to the family for missed education and stress.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 considered:
• information provided by Mrs X and her written responses to my queries;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
7. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

9. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

EHC Plan reviews

11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC reviews and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
12. 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. 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.
13. 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) 
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent 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.
16. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

Background

17. Mrs X’s child, D, has special educational needs (SEN). In the 2021/2022 school year, D was in year 4. The Council issued a final EHC Plan for D in September 2021.
18. In July 2022, at the end of the school year, D’s school held an EHC Plan annual review meeting. Following this it said it would amend D’s EHC Plan but failed to do so.
19. In September 2022, D started year 5. In July 2023, the school held another annual review meeting. Mrs X did not agree the review was carried out properly. She said the Council had failed to issue an amended EHC Plan following the previous year’s review, so D’s September 2021 Plan was still in place and information about them was out of date. She complained to the Council in August 2023.
20. In September 2023, D started year 6. In October 2023, the Council issued a final amended EHC Plan for D. This included increased Occupational Therapy provision for D.
21. Mrs X brought her complaint to the Ombudsman. She said:
• D’s increased Occupational Therapy did not begin until November 2023. D missed this added provision for over a year because of the Council’s delays;
• the Council did not share D’s October 2023 amended EHC Plan with their school for two months and she had to chase it to do so; and
• the Council never responded to her complaint about these issues.

My findings

EHC Plan review

22. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
23. Following the July 2022 review meeting, the Council should have decided whether it proposed to amend D’s EHC Plan within four weeks and issued any final amended Plan within twelve weeks. It failed to do so. During these delays of over a year, D’s school held a further annual review meeting in July 2023. After this Mrs X complained because there was still no amended Plan from the previous review. The Council issued a final amended Plan in October 2023, fifteen months after the July 2022 review meeting. The Council failed to meet statutory timescales, which was fault.
24. I considered whether the EHC Plan review delays caused the family an injustice. Mrs X said she spent significant time and trouble in chasing up the Council during its delays. She said she sent over 150 emails and the Council repeatedly promised actions which it then failed to deliver. On the balance of probabilities, I am satisfied Mrs X’s version of events is accurate. The delays caused Mrs X distress and frustration, for which the Council should provide a remedy.
25. I also considered whether delays in the EHC Plan review meant D lost out on added SEN provision, which they may have received had the Council finalised the October 2023 Plan sooner. Had the Council met statutory timescales, it would have issued a final amended Plan by 5 October 2022, when D was at the start of year 5. It did not issue an amended Plan until a year later in October 2023. This October 2023 Plan said D should receive 38 Occupational Therapy sessions per school year, compared to only 30 sessions specified in the previous September 2021 Plan. It also specified extra OT equipment D should have access to in school. Mrs X said D continued to receive their 30 OT sessions during the delay, but missed the 8 extra sessions during the 2022/2023 school year (year 5).
26. Mrs X provided evidence the Council agreed to increase the OT provision in D’s Plan from at least April 2023, before the June 2023 review meeting. On the balance of probabilities, I decided had the Council finalised the Plan in October 2022 when it should have, it would have made the same decision to add 8 OT sessions and extra OT equipment. The evidence it held about D and their needs did not change in this time. Therefore, I found D missed out on this extra provision during the 2022/2023 school year.
27. The updated October 2023 EHC Plan also included more expenses, to cover the cost of travel to the extra 8 OT sessions. Because D did not receive these sessions, the family did not incur any further travel costs, so did not experience any financial loss.
28. The Council did not share D’s October 2023 amended EHC Plan with their school for two months, and only did so because Mrs X chased this. Statutory guidance says the Council must share final amended EHC Plans with both the family and the school. Therefore, this failure to share the Plan with the school was fault. This added to Mrs X’s frustration, which caused her an injustice. However, in this case I am satisfied this fault did not change anything for D. Mrs X received a personal budget from the Council to arrange the Occupational Therapy herself, so the delay in sharing this with the school did not cause D an injustice.

Communication and complaint handling

29. The Council never responded to Mrs X’s complaint via its complaints procedure. The Council’s failure to respond was fault. This caused Mrs X further distress, and avoidable time and trouble in bringing her complaint to the Ombudsman. The Council should remedy the injustice caused.

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Agreed action

30. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child. D missed eight OT sessions across three terms, and access to some OT equipment. I decided the Council should remedy this at £150 for each term.
31. Within one month of our final decision the Council will:
1. apologise to Mrs X for the impact of the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. pay the family a total of £750, comprising of:
1. £450 to recognise the SEN support D missed because of the delays in reviewing their EHC Plan; and
2. £300 to recognise the avoidable distress, time, and trouble caused to Mrs X in chasing up the Council about the EHC Plan review, and in coming to the Ombudsman when it failed to respond to her complaint.
32. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services to ensure it:
• meets statutory timescales for EHC Plan reviews; and
• responds to complaints within the timescales set out in its complaints procedure.
33. Ofsted and the Care Quality Commission (CQC) inspected the Council’s special educational needs and disability (SEND) service in 2019 and identified nine areas of significant weakness, including the quality of the EHC Plan process. In September 2022, Ofsted and CQC inspected again and identified inadequate progress in all areas of weakness. Following this, in March 2023, the Department for Education (DfE) issued a SEND Improvement Notice. In August 2023, the Council published an Improvement Plan (Accelerated Progress Plan). In this document the Council set out specific actions for improvements to its SEND services, some of which we have been monitoring as part of our casework. This included various actions to improve EHC Plan process timescales, with new processes introduced around the same time Mrs X complained in mid-2023. Therefore, I have not made further recommendations about delays in the Council’s EHC Plan processes, as I consider this is being suitably addressed and monitored by DfE.
34. Within three months of our final decision the Council will review what happened in this case to establish why it failed to respond to Mrs X’s complaint. It will identify any changes needed to its complaint handling process to prevent similar issues in future.
35. The Council will provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault by the Council which caused D to miss some support for their special educational needs. The fault also caused avoidable distress, time, and trouble for Mrs X. The Council agreed to our recommendations to remedy this injustice, and identify any changes needed to its complaint handling process so it does not fail to respond to complaints in future.

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Investigator's decision on behalf of the Ombudsman