Summary: Miss X complained the Council failed to meet statutory timescales for reviewing her daughter, Y’s Education Health and Care Plan. We found the Council took too long to amend Y’s Plan. The Council agreed to apologise and make a payment in recognition of the uncertainty, distress and frustration caused to Miss X.

The complaint

1. Miss X complained the Council failed to meet statutory timescales for reviewing her daughter, Y’s Education Health and Care (EHC) plan. Miss X stated this left Y without the support she requires, which increased her anxiety. Miss X also stated she has been caused distress, frustration and put to avoidable time and trouble in pursuing this matter.

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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. 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

5. As part of my investigation I have:
• considered Miss X’s complaint and discussed it with her;
• made enquiries of the Council and considered its response;
• considered the relevant legislation and guidance;
• considered the Ombudsman’s Guidance on Remedies; and
• set out my thoughts on the complaint in an initial draft decision and revised draft decision statement and I considered comments from Miss X and the Council in response.

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What I found

6. 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.
7. Parents have a right of appeal to the SEND Tribunal if they disagree with:
• the description of a child or young person’s Special Educational Needs (Section B), the special educational provision specified (Section F), and/or the school or placement specified (Section I).
8. The right of appeal is only engaged when the final amended plan is issued.
9. 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).

Annual Reviews

10. 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.
11. 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) 
12. 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.
13. If the council decides 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)

The Council’s complaints procedure

14. This explains how the Council will handle complaints it receives. It says a stage one complaint will be replied to within 20 working days. Stage two complaints will be replied to within 25 working days.

What happened

15. What follows is a chronology of the key events, it is not intended to show everything that has happened.
16. Y has special educational needs and has an EHC plan. Her plan says she needs enhanced support from staff with experience of working with pupils with her needs.
17. On 19 January 2023, an annual review of Y’s EHC plan took place. The review proposed amendments to Y’s EHC plan.
18. In May Miss X complained to the Council because the Council was yet to issue a decision on the annual review of Y’s EHC plan.
19. On 1 August the Council issued a draft amended EHC plan for Y.
20. Miss X asked for an extension to provide comments on the draft amended EHC plan for Y, so she could gather the necessary information once the school holidays were over.
21. In September both Miss X and Y’s school asked for significant amendments to Y’s draft amended EHC plan.
22. In October the Council issued Y with a revised draft EHC plan. The plan was issued by Y’s new keyworker as her previous keyworker had left.
23. Also in October the Council replied to Miss X’s complaint. It said:
• it accepted there was a considerable delay in issuing Y with a final amended EHC plan. It said Y’s keyworker was in communication with her school and issuing her final amended EHC plan was a priority.
• it was arranging training for staff to ensure statutory EHC plan annual review timeframes are met. It was also offering training to improve communication with parents and carers during the annual review process.
24. Miss X was unhappy with the Council’s reply and escalated her complaint to stage two of its complaints process. She said she was still waiting for a suitable amended draft EHC plan to be issued for Y. She also said the Council’s communication with her was poor.
25. In October, November and December Miss X and Y’s school provided further information and comments on the revised draft amended EHC plan for Y.
26. In February 2024 the Council issued a further revised amended EHC plan for Y.
27. In March Miss X and Y’s school provided comments on the further revised draft amended EHC Plan.
28. Y’s school also requested additional funding to meet Y’s needs. The Council agreed.
29. Also in March the Council replied to Miss X’s stage two complaint. It said:
• delays in issuing Y’s final amended EHC plan were due to quality assurance measures. It apologised for not meeting the statutory timeframe for issuing a final EHC plan.
• it had contacted Miss X on 9 occasions since receiving her stage two complaint request.
• it has reminded staff of the importance of meeting statutory EHC plan timeframes and would be checking performance weekly.
30. Unhappy with the Council’s reply Miss X complained to the Ombudsman. In response to our enquiries the Council said:
• it issued a final amended EHC plan for Y in May. The plan said Y needs 25 hours per week of one-to-one support, in addition to an enhanced pupil to staff ratio from staff with the experience to meet her needs.
• it is unclear what action Y’s original keyworker took as she has left and there are few records of the action, she took before leaving.
• Y’s amended plan needed to be quality assured on several occasions because additional reports being provided. Quality assurance is required to ensure the plan is of the highest quality.
• it has communicated with Miss X and provided copies of email exchanges with her.
• it had a high turnover of staff while considering Y’s case. It has now recruited new staff, including senior keyworkers. It has restructured the teams, so staff have a specific area to cover, such as annual reviews. It has also delivered staff training.
31. In response to our initial draft decision on the complaint the Council provided evidence showing it provided funding for Y’s one-to-one support for the period between April 2023 and May 2024. It also provided confirmation from Y’s school that it had provided one-to-one support during this period.

Finding

32. When a council decides to amend an EHC plan following an annual review it should tell the parent of the decision to amend, and what the proposed changes are, within four weeks of the meeting. It should then issue a final amended EHC plan within eight weeks of telling the parent of the decision to amend the Plan. This means a final amended EHC plan should be issued within 12 weeks of the annual review meeting.
33. Miss X did not receive a notification from the Council saying it intended to amend Y’s Plan within four weeks of the annual review meeting in January 2023. It is unclear when the Council notified Miss X of its decision as no notification letter has been provided. However I note that Miss X was still waiting to learn the result of Y’s annual review when she made her stage one complaint in April 2023, some 10 weeks after the review meeting. This is fault by the Council.
34. The Council did not issue Y with a final amended Plan until 1 May 2024. This is around 15 months after the annual review meeting and is significantly longer than the 12 weeks it should take. This is fault.
35. I note that Miss X and Y’s school asked for an extension to the deadline to comment on the first draft amended plan. I accept this contributed to the overall time taken to issue Y’s final amended plan. However this only accounts for a small amount of the total delay and would likely have been avoided had the first draft amended Plan been issued before the summer holidays began.
36. The Council has identified the causes of the delay in issuing Y’s amended plan, and it has taken action to prevent a recurrence of the delays in her case. I am satisfied with the action it has taken and so I do not consider it is necessary to recommend service improvements.
37. Y’s final amended Plan says she should receive 25 hours per week of one-to-one support. Her previous plan did not include this provision. However the Council has provided evidence that it provided funding to Y’s school for one- to -one provision between mid-April 2023, when a final plan should have been issued, and May 2024. Therefore I do not consider Y missed out this provision despite the delay in issuing her with a final amended plan.
38. The failure to meet the statutory timescales meant Miss X’s appeal right was delayed. The delay also caused her uncertainty, avoidable distress and frustration. This is injustice.
39. Miss X was also put to avoidable in pursuing this matter with the Council. Miss X’s efforts were frustrated by a poor communication with the Council. While correspondence provided by the Council shows it was in contact with Miss X, it also shows that Miss X was not receiving updates unless she requested them and followed up a response. This is also injustice.
40. The Council also failed to answer Miss X’s stage one and stage two complaints within its published timescales. Again the delay was significant. This caused Miss X added frustration.

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Agreed action

41. Within one month of my final decision, the Council should:
• apologise to Miss X for the fault I have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings; and
• pay Miss X £500 in recognition of the uncertainty, distress, frustration and avoidable time and trouble caused to her.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. There was fault by the Council in how it reviewed Y’s EHC plan. The Council agreed to apologise and pay Miss X a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman