Summary: Mrs X complains the Council did not provide her with any documentation or communication after the annual review of her child’s education, health and care plan. The Council acknowledges it has missed statutory timescales and it has agreed to our recommendations to adequately remedy the significant injustice to the family.

The complaint

1. Mrs X complains on behalf of her son, Mr Y, that the Council failed to provide any documentation following an annual review of his Education, Health and Care Plan in March 2023.

Back to top

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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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.
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).

Back to top

How I considered this complaint

8. I considered Mr Y’s complaint and the information provided by Mrs X.
9. I considered the information I received from the Council in response to my enquiries.
10. Mrs X, on Mr Y’s behalf, and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

Back to top

What I found

Relevant law and guidance

EHC Plan process

11. A child with special educational needs may have an 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. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
12. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. The Council must review the EHC Plan annually, but it can call an early review if it is necessary to change the Plan sooner, for example, where the school placement has broken down.
14. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
15. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. 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.
19. The SEN regulations require councils to carry out an Annual Review of a child’s EHC Plan every 12 months. The deadlines during key transitions in education have specific dates.
20. The regulations specify that councils must issue a draft Amended EHC Plan within 4 weeks of the annual review meeting and issue a Final Amended EHC Plan within 12 weeks.

What happened

21. What follows is not a comprehensive list of every event that happened. It is a summarised chronology of some of the events that are relevant to my investigation.
22. Mrs X, has a child, Mr Y, who has an Education, Health and Care (EHC) Plan maintained by the Council.
23. In February 2023 Mrs X attended a meeting with a council officer where the intention was to include an annual review as part of the meeting. There was insufficient time to do this, so the annual review went ahead on the original date that was set, 8 March 2023. The annual review meeting went ahead on this day.
24. On 30 June 2023, Mrs X complained to the Council that she had not received any communication from it since the annual review and she needed Mr Y’s Plan because he was due to turn 18 soon.
25. The Council responded to Mrs X’s complaint at Stage 1 of its complaint process in September 2023. The Council apologised for the delay in responding to her complaint. The Council found that a ‘no amendments’ decision letter was sent to Mrs X on 1 February 2023 which was over a month before the annual review meeting had taken place, no EHC Plan in draft form was sent to her and it had not corresponded with her at all since the meeting. The Council upheld Mrs X’s complaints and said the SEND Department had significant staffing issues which had impacted upon the processing of annual reviews and also on the level of communication that caseworkers were able to provide. The Council apologised to Mrs X and said it would send Mr Y’s draft EHC Plan within the next fortnight so she can review it and respond with her comments. The Council said it would also arrange a transition meeting for Mr Y within six weeks so that post-college transition planning can be progressed.
26. The Council offered Mrs X £200 for the avoidable distress due to the delay in the EHC Plan being sent following the annual review and for the ‘no amendments’ decision letter being sent prior to the annual review meeting. It also offered £100 for the time and trouble in raising her complaint and the delay in responding.
27. In October 2023, Mr Y’s college arranged a transition review meting and it invited Mr Y’s caseworker from the Council, Mr W, but he did not attend. Mrs X felt this limited the effectiveness of the meeting.
28. Following the Stage 1 response, Mrs X did not receive any communication from the Council. Mrs X was worried because Mr Y was due to leave college at the end of the academic year and she was unable to plan his next steps due to no one from the SEND Team attending important transition planning meetings and not having an up-to-date EHC Plan that reflected his needs.
29. In November 2023, Mrs X requested her complaint be escalated to Stage 2 of the Council’s complaint process. The Council had not sent any documentation or communicated with her as promised at Stage 1 and Mr W was invited to Mr Y’s transition review meeting but he had not attended. Mrs X had significant concerns because Mr Y’s final meeting with his college was pending but they still did not have any up-to-date paperwork reflecting his needs.
30. The Council investigated Mrs X’s complaint at Stage 2 and sent the report to her in December 2023. The Stage 2 investigation found:
• Mr W was sent a copy of the Stage 1 action plan but he was unable to complete the actions because of staffing and capacity issues within the service;
• An additional member of staff was being recruited to address the capacity issues;
• Mr W was sorry that the necessary paperwork was not sent to Mrs X within the statutory timeframes; and
• Mr W said he will contact Mrs X before the next review meeting which is planned for 12 January 2024 and he will prioritise attending this meeting.
31. Mrs X’s complaints were upheld by the Council and recommendations were made. These recommendations were:
• Mr W to send the draft EHCP to parents by no later than 15th December 2023
• Mr W to attend the EHCP review meeting on 12th January 2024. The Head of SEND to ensure that Mr W is able to prioritise this.
• Mr W to make contact with parents prior to the meeting on 12th January 2024, to discuss and prepare for the meeting, to ensure the meeting can be as effective as possible.
• Mr W to prioritise attending meetings that are arranged with the college, Mr Y and his parents between now and the end of this academic year, to ensure that everyone is working together to develop appropriate plans for Mr Y post-19.
• Mr W to confirm his attendance or provide apologies if he cannot attend directly to parents.
• Apology to parents from the Assistant Director on behalf of the Local Authority.
• Head of SEND to continue training and development around EHCP process, statutory timescales and expectations around communications, in particular around key transitions.
• Head of SEND to ensure appropriate systems are in place to monitor and track complaints, including progress on complaint action plans and learning points.
32. On 21 December 2023, Mrs X contacted the Council because she had not received the draft EHC Plan. The Council’s SEN Department said the completion date of 15 December 2023 had not been communicated to them. It said it had now received the Stage 2 Action Plan and it was now aware of the overdue action.
33. On 22 December 2023 Mrs X brought her complaint to the Ombudsman.
34. On 3 January 2024, the Council issued a draft EHC Plan.
35. An interim review meeting was held on 12 January 2024. Mr W attended this meeting as promised.
36. On 23 January 2024 the Council issued a final EHC Plan for Mr Y.
37. In April 2024, the Council began consulting with Mrs X and Mr Y about its proposal to cease Mr Y’s EHC Plan because he had begun paid employment. Mrs X has advised me she is unhappy with the Council’s proposal, and she has sent her views for the Council to consider. Mrs X is concerned about Mr Y’s care needs without the support of an EHC Plan.

Back to top

Analysis

Annual review meeting on 8 March 2023

38. The Council sent a ‘no amendments’ decision letter for Mr Y’s EHC Plan over a month before the annual review had taken place. This is fault. The Code states that reviews must be undertaken in partnership with the child and their parent and must take account of their views, wishes and feelings. For the Council to make its decision before the review meeting had taken place demonstrates a lack of regard for Mr Y’s needs and the support he requires to meet those needs.
39. Mrs X did not hear from the Council after the annual review meeting in March 2023. The Council failed to issue its decision following the annual review meeting within four weeks. This is fault. I have seen no evidence, at any point, that the Council issued a decision following the annual review meeting and there is no evidence Mrs X was notified of her appeal rights. This is fault and it has resulted in a lost opportunity.
40. It appears the Council’s decision would have been to amend Mr Y’s EHC Plan because it issued a draft EHC Plan followed by a final EHC Plan, albeit 10 months after the annual review meeting. The Council issued Mr Y’s final EHC Plan eight and a half months later than it should. This is fault. This is a significant period of uncertainty at a time when Mr Y is going through a key transition period in his education and into adulthood. This significant delay caused frustration and distress and delayed Mrs X’s right to appeal to the SEND Tribunal if she disagreed with the content of the Plan.
41. Mrs X complained the Council had sent the draft Plan only one week before the review meeting on 12 January 2024 which meant she had very little time to make any amendments. Mrs X says she notified the Council she wanted to make amendments, but it failed to discuss these with her and it went on to issue a final Plan on 24 January 2024.
42. The evidence shows the Council issued the draft EHC Plan on 3 January 2024 and Mrs X had 15 days (this is a statutory timescale) to submit any amendments. Mrs X did have at least 15 days to submit her amendments as the Council issued the final Plan 20 days later. It appears the confusion arose because an interim review meeting was held during this period. Had the Council issued the draft Plan when it should have (by May 2023), this confusion could have been avoided. However, Mrs X could have used her right to appeal the final EHC Plan if she was unhappy with contents of it.

Review meeting held on 12 January 2024

43. The Council has notified Mr Y that it is proposing to cease his EHC Plan because he has begun paid employment. Mrs X is of the view Mr Y requires an EHC Plan for his care needs. If after this consultation the Council decides to cease the Plan, it must notify Mrs X or Mr Y of this decision and notify them of their right to appeal the decision. If Mrs X or Mr Y are unhappy with the Council’s decision, they can use their right to appeal.
44. I understand Mrs X is extremely worried about the lack of support for Mr Y without an EHC Plan. The Code states that under no circumstances should young people find themselves suddenly without support and care as they make the transition to adult services. For the most part, transition to adult services for those with EHC Plans should begin at an appropriate annual review and in many cases should be a staged process over several months or years. I consider the faults identified in relation to Mr Y’s annual reviews, the lack of action and the Council not doing what it said it would, has fuelled these genuine concerns Mrs X has about Mr Y’s future if the Council decides to cease the EHC Plan.
45. When a young person’s EHC plan is due to come to an end, local authorities should put in place effective plans for the support the young person will be receiving across adult services.

The Council’s response to Mrs X’s complaints

46. The Council delayed responding to Mrs X’s Stage 1 complaint by 8 weeks. This is fault that added to the uncertainty about Y’s education, caused Mrs X frustration and time and trouble.
47. The Council made several promises in its Stage 1 and 2 responses, but they did not come to fruition. Following its Stage 1 complaint response, it promised to provide Mrs X with a draft EHC Plan by 7 August 2023 but the Council failed to do this. Following its Stage 2 complaint response it said it would provide her with the draft plan by 15 December 2023 and it failed to do this again. This is fault and it has caused immense frustration to Mrs X, she has spent a considerable amount of time chasing the Council for responses and submitting complaints. In addition to this, Mr Y has not had an up to date EHC Plan and he has not been provided the suitable provision to meet his needs.
48. The Council has accepted it was at fault for sending its decision before the annual review meeting, failing to issue a draft EHC Plan and the delay in sending the Stage 1 complaint response. It has offered Mrs X £300 for the injustice caused by the faults. These remedy payments adequately reflect the injustice caused.
49. The faults I have identified above have caused significant injustice to Mr Y and his family.

Back to top

Agreed action

50. To remedy the injustice caused by the identified faults, that Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X and Mr Y for the faults identified above;
• Pays Mrs X £500 for the avoidable distress caused;
• Pays Mrs X £500 to reflect time and trouble;
• Pays Mr Y £1800 for loss of provision caused by not having an EHC Plan that reflected his needs from 1 June 2023 to 23 January 2024.
51. To address Mrs X’s concerns about Mr Y’s care needs, within four weeks of this final decision, the Council will arrange a meeting for the family to meet with its adult care department to discuss the family’s concerns and for the Council to provide the family with information on what options are available for Mr Y including information on an assessment to identify his individual needs and if he requires a care and support plan.
52. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. The Council is at fault, and it has agreed to remedy the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman