Summary: Mrs X complained about the time taken by the Council to issue a final Education, Health and Care Plan for her child following their annual reviews. As a result the child has not received the support they should have. To remedy the injustice caused the Council agreed to apologise, make payments to acknowledge the distress caused to Mrs X and the loss of her child’s special educational provision.

The complaint

1. Mrs X complains the Council delayed issuing her child’s Education, Health and Care Plan following annual reviews in 2021, 2022 and 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. 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)

Back to top

What I have and have not investigated

5. I have not investigated Mrs X’s concerns that the Council has not delivered some of the provision in her child’s latest Education, Health and Care Plan, as Ms X would need to complain to the Council about this in the first instance.
6. I have not investigated Ms X’s complaint that it took the Council 9 months to issue her child’s Education, Health and Care Plan in 2021. This is because too much time has passed since Mrs X became aware about the delays and raised them with the Ombudsman. I can see no reasons why Mrs X could have not complained to us sooner.
7. This investigation focuses on the delays issuing a final Education, Health and Care Plan following the annual reviews in May 2022 and May 2023.

Back to top

How I considered this complaint

8. As part of this investigation I considered the information provided by Mrs X and the Council. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Mrs X and the Council for comments.
9. 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

What I found

Law and guidance

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
11. 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.
12. 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)
13. 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) 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.
14. The council must then issue any final amended EHC Plan within 8 weeks of the amendment notice (R (L, M and P) v Devon County Council. Therefore a council must issue a final EHC plan within 12 weeks of the review meeting.

What happened

15. In this section of the statement I summarise key events but I do not refer to every single contact and communication.
16. Mrs X’s child, Y, has special educational needs and has an EHC plan in place.

Annual review of Y’s EHC Plan 2022

17. In late May 2022, the Council held an annual review of Y’s EHC Plan. The minutes of the meeting showed there were no changes to the provision in section F of Y’s EHC plan but there were changes to the outcomes in section E of the EHC Plan.
18. In the months which followed Mrs X attempted to contact the Council for updates as Y did not have a final EHC Plan. In late September 2022, the Council issued a draft EHC Plan for Y.
19. In early November 2022, Mrs X complained to the Council about the delays finalising Y’s EHC Plan. Mrs X also complained about the level of communication she had received from the Council as her caseworker had not responded to her communication.
20. In mid-November 2022, the Council responded to Mrs X’s complaint. The Council upheld the complaint and apologised for the level of communication she had received from her caseworker. The Council explained a new caseworker was in charge of Y’s case. The Council also apologised for not issuing Y’s EHC Plan within the statutory timeframes and told Mrs X it would issue Y’s final EHC Plan by 2 December 2022.
21. On 20 November 2022, Mrs X wrote to the Council and asked it to consider her complaint at the next stage of its process.
22. In mid-December 2022, the Council issued Y’s final EHC Plan.
23. The Council provided its final response to Mrs X’s complaint on 8 March 2023. The Council apologised for not issuing the final EHC Plan by the date it said it would in the stage one response. The Council said it was working to make improvements following the feedback it had received.

Annual review of Y’s EHC Plan 2023

24. On 16 May 2023, the Council held a review meeting for Y’s EHC Plan. The notes from this meeting showed the Council proposed to make several changes to the special educational provision in section F of the Plan and to add it more provision to section F. The Council proposed to add the following provision:
• Full time adult support of 32.5 hours per week for Y. Y will get a keyworker and receive assistance with all self-care needs.
• Occupational Therapy sessions to work on key skills linked to fine motor development.
• Four one hour sessions from a Physiotherapist.
• A minimum of 12 hours of support per year from a Special Physical Disability teacher.
• Physiotherapy exercises.
• Access to school via ramps etc.
• Access to specialist toilet.
25. On 25 July 2023, the Council sent Mrs X an amendment notice saying it was going to amend Y’s EHC Plan. The Council sent Mrs X an amended draft EHC Plan on 27 July 2023. Mrs X sent her comments back to the Council shortly after receiving this.
26. In late December 2023, Mrs X complained to the Council about the time taken to issue a final EHC Plan for Y after the annual review.
27. The Council responded to Mrs X’s complaint in mid-January 2024 and upheld the complaint. The Council apologised for the delays and said it would issue a final EHC Plan by 19 January 2024.
28. Mrs X asked the Council to consider her complaint at the next stage on 23 January 2024. Mrs X said the Council did not send her a final EHC Plan by 19 January 2024 as it said it would in the stage one response. Mrs X also said the Council had not addressed her concerns about the poor level of communication she experienced. Mrs X said she left messages which the Council did not return.
29. The Council issued Y’s final EHC Plan on 23 January 2024. This contained the provision the Council sought to add to section F in the annual review notes.
30. On 16 February 2024, the Council sent Mrs X its final response to her complaint. The Council apologised it did not issue Y’s EHC Plan sooner. The Council also apologised for the level of communication Mrs X experienced. The Council said there were issues with staff callbacks prior to them leaving the service and apologised if Mrs X was affected by this. The Council also told Mrs X it was investing money into its SEND service to improve its performance.
31. Mrs X remained dissatisfied and complained to the Ombudsman. Mrs X said for the past three years the Council has delayed issuing Y’s EHC Plan following the annual review.

Council’s response to our enquiries

32. The Council explained that during the time period this investigation looked at its SEND team were under resourced and could not meet the demands of the volume of EHC Plans it maintained. The Council explained that due to staff having very high caseloads the SEND team struggled to recruit and retain staff, which caused multiple changes to officers who were working with Mrs X and Y and this contributed to the delays in finalising Y’s EHC Plan. The Council said it also had a SEND area inspection which highlighted the need to improve the timeliness of annual reviews.
33. The Council said it has announced an additional amount of £7 million to improve the SEND service. The Council said this money will enable it to reduce staff caseloads by 30% and recruit over 90 new staff members. The Council also is in the process of establishing the SEND Academy which is designed to provide training to all its incoming and new staff members. The Council has restructured its SEND team and moved from three teams to seven. As part of this restructure it will allocate children and young people in specific circumstances/age groups to dedicated teams with specialist knowledge.

Analysis

34. The Council was at fault for delaying issuing Y’s final EHC Plan after the annual review in May 2022 and May 2023. The Council recognised this in its complaint responses to Mrs X. While this is welcomed the Council did not offer Mrs X or Y a remedy for any injustice this fault caused.
35. As the Council amended the EHC plans it should have issued a final Plan within 12 weeks of the date of the annual review meetings. After the annual review in 2022, the Council did not propose to amend the section F provision Y was receiving but amend the outcomes in the EHC Plan. Therefore I am satisfied Y did not miss out on any extra provision as a result of this delay.
36. The 2023 annual review decided that Y should receive extra section F provision. This included full time adult support, Occupational Therapy sessions, Physiotherapy sessions and support from a Special Physical Disability teacher. If the Council had issued Y’s final Plan within 12 weeks of the annual review meeting it would have finalised the Plan by 8 August 2023. The Council did not finalise the Plan until 23 January 2024. This amounts to a delay of just over a term of education.
37. When the Council issued the final EHC Plan it included the extra provision it had listed in the annual review meeting notes. Therefore I am satisfied on balance that if the Council had issued the final Plan within 12 weeks of the annual review meeting Y would have received this provision sooner. Our guidance on remedies recommends that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In this case Y was attending school and had an existing EHC Plan in place. In light of this I consider the extra provision Y would have received had the Council issued the final Plan within 12 weeks amounts to £1,000 per term.
38. In cases such as this we also would normally recommend service improvements for the Council. Given what the Council has said about the changes it has and is in the process of making to its service, I consider it appropriate to allow the Council the opportunity to implement these, so have not made a service improvement recommendation on this basis.
39. The delays in finalising Y’s EHC Plan following the annual reviews in 2022 and 2023 have caused Mrs X frustration and distress. On each occasion she had to raise a formal complaint due to the extent of the delays.
40. The Council was also at fault with how it communicated with Mrs X. For both annual reviews in 2022 and 2023 there were times when Mrs X chased the Council for updates and was not responded to by her caseworker. This caused her frustration and uncertainty about when her child would receive their EHC Plan and get the support they were entitled to receive. The Council has recognised this was the case in its complaint responses to Mrs X, and this is welcomed, however it did not offer her a remedy for the injustice this caused her.

Back to top

Agreed action

41. Within one month of my final decision the Council agreed to carry out the following:
• Provide a written apology to Mrs X for the delays in finalising Y’s EHC Plan in 2022 and 2023 and for the issues around communication. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet.
• Pay Mrs X £1,250 for the benefit of Y’s education and to recognise the lost special educational provision as a result for the delay in finalising Y’s EHC Plan following the 2023 annual review.
• Pay Mrs X £500 to recognise the distress, and frustration she experienced as a result for the Council’s delays finalising Y’s EHC plan in 2022 and 2023 and as a result of the level of communication she received.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

43. I have completed my investigation and found the Council was at fault and this caused Mrs X and Y injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman