Summary: Mrs C complained about delays following an annual review of her son’s Education, Health and Care Plan. We found the Council was at fault. This caused Mrs C unnecessary distress and frustrated a possible appeal about the content of the plan. Mrs C was also put to unnecessary time and trouble in chasing the Council for a response to her complaint. The Council has accepted our recommendations for the action it should take to remedy this injustice.

The complaint

1. I have called the complainant ‘Mrs C’. Her son, ‘D’, has special educational needs and has an Education, Health and Care Plan (EHC) Plan which should be reviewed annually. Mrs C complains that since October 2022 the Council has been responsible for a series of delays around the annual review of D’s EHC Plan. In particular in failing to finalise an amended EHC Plan following the annual review.
2. Mrs C says as a result D’s EHC Plan is significantly out of date. The delays have caused her distress and had an impact on both her and D’s mental and emotional health. Mrs C also couldn’t pursue any grievance with the content of the EHC Plan by way of an appeal to a Special Educational Needs and Disability Tribunal (SEND Tribunal) until the Council finalised it.
3. Mrs C also complains about the lack of the Council’s response to her complaints about the delays in the process. This caused her additional distress and meant she had to chase the Council for answers to her complaint which she did not get.

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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 an injustice, 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted in advance of publication on our website.

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How I considered this complaint

7. While investigation this complaint, I considered:

• Mrs C’s written complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone conversation with her;
• any relevant law or guidance as referred to in the text below;
• the Ombudsman’s published guidance on remedies.

8. Mrs C and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan annual reviews

9. 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.
10. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. An EHC Plan must be reviewed at least once every twelve months.
11. 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)
12. 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194) Recent caselaw has held the proposed amendments must also be sent out within four weeks of the review. (see R (L, M & P) v Devon County Council [2022] EWHC 493 (Admin))
13. A council must give parents opportunity to comment on the proposed amendments, allowing a minimum of 15 days for this. If, following comments from the child’s parent or the young person, the council decides to continue with amendments, it must issue the amended EHC plan as soon as practicable. In all cases this should be within eight weeks “of the original amendment notice”. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
14. 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 after the council issues the final amended plan.

What happened

15. The Council held an annual review of D’s EHC Plan in mid-October 2022.
16. Mrs C complained to the Council in late January 2023 about the time it was taking to finalise D’s EHC Plan following the annual review.
17. The Council issued D’s final amended EHC Plan in the first week of March 2023. This plan did not name a specific school, it only named a type of placement.
18. Mrs C was unhappy with the EHC Plan, and she appealed to the SEND Tribunal. Between March and April, she also chased the Council for a response to the complaint she made to it in January 2023.
19. In mid-April the Council told her that it closed her complaint because:
• it had already issued D’s final amended EHC Plan; and
• it was already considering her complaint about the delivery of specialist educational provision for D.
20. The Council sent this email to Mrs C’s previous email address and she was not aware of this until August.
21. At the end of the month Mrs C told the Council it had been 12 weeks since she made her complaint, and she now wanted it to move to stage two and be allowed to go to the Ombudsman. She said she was also complaining about the Council’s lack of response to her complaint.
22. Mrs C chased the Council again in early May and mid-July 2023. It was only in August that the Council contacted her again and told her it had closed her complaint about this earlier in the year.
23. Mrs C was unhappy about the Council’s lack of response to her complaint and its actions in relation to D’s EHC Plan annual review from October 2022 and in January 2024 she asked the Ombudsman to consider her complaint.

Analysis

EHC Plan annual review October 2022

24. The Council is at fault for a series of delays associated with the review of D’s EHC Plan.
25. The law and guidance are clear. When a Council has decided to amend an EHC Plan following an annual review it must issue any draft amended Plan within four weeks of the annual review. The Council must then issue the final amended plan within 12 weeks of the annual review.
26. This means that by mid-November 2022 the Council should have sent D’s draft amended EHC Plan to Mrs C, but it did not. This is fault. This caused Mrs D avoidable distress as she was unsure of what the Council intended to do with D’s EHC Plan following another annual review.
27. It also meant that the Council should have issued D’s final amended EHC Plan by mid-December 2022, but it did not do this until early March 2023. This is fault. This caused Mrs C further avoidable distress and uncertainty. It also delayed her appeal rights which she exercised promptly after the Council issued D’s final amended EHC Plan.

Council’s complaint handling

28. The records suggest Mrs C was chasing officers in the SEN team many times for updates, that she did not always get substantive replies and any replies did not give meaningful updates. The failure to keep Mrs C updated of the progress of D’s EHC Plan following an annual review was poor communication and is fault.
29. This caused Mrs C avoidable distress and meant she spent additional time in chasing officers for updates and the Council for a response to her corporate complaint.
30. The Council also failed to respond to Mrs C’s complaint from January 2023. The records show that it did not properly record the complaint, for which it apologised to Mrs C, but then it told her it closed the complaint because it had already issued D’s final EHC Plan without ever addressing the delay in the annual review process. This is fault that has further contributed to Mrs C’s avoidable frustration.

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Agreed action

31. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs C and D for its failure to finalise his EHC Plan within 12 weeks from the October 2022 annual review and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mrs C £200 to recognise the avoidable distress and her delayed appeal rights; and
• pay Mrs C £150 to recognise the avoidable time and trouble she went to in chasing the answer to her complaint.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. The Council was at fault for the delay in finalising D’s EHC Plan following an annual review in October 2022. This caused Mrs C and D injustice and we recommended what the Council should do to put things right. The Council agreed to our recommendations on what is should do to address the injustice its actions caused to Mrs C and D.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman