Summary: Mrs X complained the Council delayed completing reviews of her daughter’s Education, Health and Care Plan (EHC Plan) including a delay in the year she was transferring to secondary school causing frustration and uncertainty. The Council took over a year to issue the final EHC Plan and missed the statutory timescale in the transition year. A suitable remedy is agreed.

The complaint

1. Mrs X complains the Council delayed completing reviews of her daughter’s EHC Plan including delay in the year she was transferring to secondary school.
2. Mrs X says the delays caused serious problems and distress to the whole family as well as meaning her daughter did not receive a suitable education.

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The Ombudsman’s role and powers

3. 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)
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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

7. 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. 

Reviewing EHC Plans

8. 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.
9. 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) 
10. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. 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.
12. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Key transfers pre-16

13. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mrs X’s daughter, Y, has complex health and social care needs. She attended a special school with an EHC Plan for several years. The school held an annual review meeting in March 2022. At around the same time, the Council contacted a residential school about a placement for Y.
16. The Council notified Mrs X of its intention to amend the EHC Plan within the four week statutory timescale. However, the whole process starting from the review meeting to the issuing of the final amended plan should take no more than 12 weeks. The Council did not issue the final EHC Plan within 12 weeks.
17. Y’s school completed an early annual review on 13 September 2022 due to a change in Y’s needs. The Council says it then decided to combine both reviews and notified Mrs X of this decision. It also says that it sent Mrs X the proposed amended EHC Plan on 27 September 2022. Mrs X says she never received it.
18. Mrs X made a formal complaint to the Council on 6 September 2022. The Council’s response dated 30 September upheld Mrs X’s complaint and said that it was in the process of merging the outcomes of the two reviews. It said this would be processed as a matter of urgency and that it would send the amended EHC Plan within 10 working days. Mrs X complained again to the Council in May 2023 saying the amended EHC Plan had not been provided as detailed in the stage one complaint response. In response the Council said its records showed it created the amended EHC Plan on 27 September but it did not provide any comments on when it sent it to Mrs X.
19. In January 2023, the Council’s provision panel considered a request for a residential placement for Y. The request was supported by social care, Y’s psychiatrist and her current school. The panel agreed a request should be considered by a multi-agency panel for a 52-week residential school placement and on 23 May 2023 it approved the placement at the residential school.
20. The Council issued the final EHC Plan on 16 June 2023, over a year later than it should have been issued following the initial annual review meeting in March 2022. Y started at the residential school on 25 September 2023. It is my understanding the EHC Plan was amended and reissued in January 2024 naming the residential school.

Analysis

21. The Council is required to review an EHC Plan annually and if amending the EHC Plan, should complete the whole process in 12 weeks. That did not happen in this case which is fault. It failed to issue the final amended EHC Plan within 12 weeks of the annual review meeting in March 2022 and it had still not issued the final EHC Plan when the school carried out an early annual review in September 2022 because of a change in Y’s needs. The Council is unable to provide any explanation for why it did not act within the statutory timeframes.
22. After the early annual review in September 2022, the Council again failed to issue a final EHC Plan within 12 weeks. It says it sent an amended draft plan to Mrs X in September for her comments. It cannot evidence this was sent and Mrs X says she did not receive it. It is of course possible that both accounts are correct and that it was sent but never delivered. However, as there was fault in this process because again the statutory timescales were not met, I do not consider it necessary to investigate further the issues around the sending of the amended draft EHC Plan.
23. At a panel in May 2023, the Council approved Y’s placement at a residential school. However, Y did not start at the school until 23 September 2023, three weeks after the start of the school year. Mrs X says that the delay by the Council in confirming the placement meant little time to prepare Y for the transition. This is especially critical as this was the year Y moved from primary to secondary education.
24. As stated at paragraph 13 above, there are specific statutory timescales for reviewing and issuing EHC Plans during a transition year. The Council should have completed any review by 15 February 2023 as Y was transferring to secondary school phase. An early annual review began in September 2022 and so there was sufficient time to complete the review and issue the final EHC Plan before 15 February. The failure to do this is fault.
25. Mrs X says that after the Council issued the final EHC Plan in June 2023 it was noted the wrong school was named and it took several months for this to be rectified. Mrs X’s appeal rights engaged when the final EHC Plan was issued and so I consider she should have used those rights of appeal if she disagreed with the what was in the plan, including the name of the school. However, Y started at the residential school in September 2023 even though it was not named in her EHC Plan and so I am not persuaded this error caused any significant injustice.
26. The failure to complete both review processes within the 12 week statutory timescale did cause a significant injustice. Mrs X’s parental preference has been for a residential school since 2021. Y has complex needs and the special school she attended was not able to cope. Mrs X says that although Y attended school everyday, she spent most of her time outside the classroom because of her needs and behaviour, and so was not actually receiving a suitable education. To further support this, Mrs X says that even though she is now at an autism specialist school which has experience with complex needs, Y now has two to one support which the Council is funding.
27. The Council’s failure to issue the final EHC Plan within the statutory timescales caused uncertainty and meant Mrs X’s rights of appeal were frustrated. If Mrs X disagreed with the content of the EHC Plan, including the name and type of institution, then she would have a right of appeal but appeal rights only engage when the final EHC Plan is issued. I cannot say that a place would have been available for Y at the residential school even if the Council had acted without delay. However, the delay was frustrating, caused uncertainty and frustrated Mrs X’s right of appeal. I have suggested a suitable remedy for this injustice below.

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Agreed action

28. To remedy the injustice experienced as a result of the fault identified in this case the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X and Y; and
• Make Mrs X a symbolic payment of £1,500 to recognise her distress and uncertainty. This payment is higher than the amount usually recommended to recognise the prolonged and repeated fault.
29. The Council should provide us with evidence it has complied with the above actions.
30. I am not making any service improvement recommendations in this case as I am aware the Ombudsman has made recommendations in similar cases recently. The Council has taken action including reminding staff of statutory timescales for EHC Plans to ensure compliance and providing evidence of plans to improve the timeliness of annual reviews.

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Final decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman