Summary: Mrs X complained that the Council did not complete the review of her child’s education, health and care plan properly or in a timely fashion causing distress, frustration and uncertainty. We found the Council was at fault in failing to comply with statutory timescales. In recognition of the injustice caused the Council has agreed to make a payment to Mrs X.

The complaint

1. Mrs X complains that the Council did not complete the EHC plan review process properly or in a timely fashion causing distress, frustration and uncertainty.

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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. 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.
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 have considered all the information provided by Mrs X and the Council. I also considered the relevant law and guidance and our Guidance on Remedies.
7. Mrs 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

Legal and administrative background

EHC Plan

8. A child or young person with special educational needs 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. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
9. 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. 

Annual reviews

10. EHC plans must be reviewed at least every twelve months.
11. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• within four weeks of the annual review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting;
• if the plan needs amending, councils should start the process of amendment without delay;
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes;
• councils must issue the amended EHC plan as quickly as possible after receiving comments and within 8 weeks of the original amendment notice.

Appeal rights

12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Key facts

13. Mrs X’s son, C, has special educational needs and an EHC plan which was issued in December 2022.
14. On 13 July 2023 an annual review meeting was held to review the EHC plan.
15. The Council received the annual review paperwork from the school on 20 September.
16. On 25 September Mrs X told the Council C was struggling to attend school. It replied on 28 September explaining the annual review was being processed and the school had been contacted.
17. On 19 October the Council updated Mrs X about its contact with the school and said an amended EHC plan would be issued soon.
18. On 25 October the Council sent the draft amended EHC plan to Mrs X. She responded saying the Council had not sent her a letter confirming its decision on whether to maintain, amend or cease the plan as it should have done. The Council sent a letter the same day confirming its decision to amend the plan.
19. Mrs X also raised concerns that section F of the EHC plan was blank and that the Council had only allowed her 15 days to respond when the Code states she should have a minimum of 15 days.
20. On 27 October the Council wrote to Mrs X apologising for the distress caused by the error in the plan and said it had attached a corrected draft plan with the provision in section F reinstated. However, the attached plan was still missing all the provision from Section F. Mrs X informed the Council and it sent the corrected document.
21. The Council issued a final amended plan in January 2024. Mrs X appealed against section B and section F.

Analysis

Failure to comply with statutory deadlines

22. In accordance with the Code, the Council should have notified Mrs X of its decision to maintain, amend or cease the EHC plan and what the proposed changes were within four weeks of the annual review meeting. It should have issued the amended final EHC plan within eight weeks of this.
23. The annual review meeting was held on 13 July 2023. The amended EHC plan was issued on 25 October 2023. It therefore took the Council 15 weeks to send a draft amended plan for Mrs X’s comments following the July 2023 annual review. This was a delay of 11 weeks. In addition, the Council did not send Mrs X a letter confirming its intention to amend the EHC plan until 26 October 2023. The Council did not finalise the EHC plan until January 2024.
24. This failure to comply with statutory deadlines was fault. As a result, C was without an up-to-date record of his SEN and what provision he needed to meet them causing Mrs X distress and frustration. This also delayed the appeal process as Mrs X was unable to appeal the content of the new plan until the final plan was issued. However, I do not consider the delay caused C to lose out on educational provision. This is because the provision outlined in his previous plan is comparable to the provision detailed in the new plan.
25. In its response to Mrs X’s complaint, the Council accepted it had not met its statutory duty to respond to C’s annual review within four weeks of the meeting and apologised. While this goes some way towards remedying the injustice caused, I have made further recommendations below. I have not recommended service improvements as, in a previous case, we recommended the Council complete staff training on the annual review process. It completed this in November 2023. The events of this complaint took place before the training.

Removal of provision from Section F

26. The Council accepted in response to Mrs X’s complaint that the draft amended EHC plan sent to her on 25 October was incomplete and provision that C continued to require had been removed from Section F in error. It apologised for this. It also explained that it had reinforced with staff the need for all amendments to be based on relevant evidence and for documentation to be checked and proofread and quality assurance procedures to be followed at all times to ensure documentation containing errors was not shared with families.
27. I find the Council was at fault in sending an incomplete document to Mrs X causing her uncertainty and frustration and putting her to the inconvenience of raising the matter with the Council. However, I am satisfied the matter was rectified quickly and the Council’s apology represents a satisfactory remedy for the injustice caused.

Timescale for responding to the draft EHC plan

28. Mrs X says the Council incorrectly informed her that she had 15 days to respond to the draft EHC plan rather than a minimum of 15 days as set out in the Code.
29. The Council says there is no requirement for it to provide more than 15 days and it has chosen to allow 15 days as standard. It says it recognises that, in some cases, this timeframe is not achievable and staff are prepared to discuss extensions as necessary.
30. I find no fault on the Council’s part. The Code states that parents must have “at least 15 days” to make representations on the draft EHC plan. As long as the parent is given 15 days to respond this complies with the Code.

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Agreed action

31. The Council has already apologised for its failings, so I have not recommended a further apology here.
32. The Council has agreed that, within one month of the Ombudsman’s final decision, it will pay Mrs X £300 in recognition of the distress and frustration she suffered because of the delay.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I find fault by the Council causing injustice.
35. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman