Summary: Mrs X complains the Council wrongly decided not to amend her child D’s Education, Health, and Care Plan following an annual review, and delayed in making this decision. There was fault by the Council which caused avoidable distress for D and Mrs X, and avoidable time and trouble for Mrs X. The Council agreed to pay a financial remedy and share a copy of our final decision with staff in its Children’s Complaints Team to share learning from the complaint handling faults identified.

The complaint

1. Mrs X complains the Council wrongly decided not to amend her child D’s Education, Health, and Care (EHC) Plan following an annual review meeting in November 2022. She also says it delayed in making this decision for a year and delayed in responding to her complaint about this.
2. Because of this Mrs X says:
• she experienced distress and frustration. This also frustrated her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) about the Council’s decision not to amend the EHC Plan; and
• there has been an impact on D’s education because Mrs X’s view is their EHC Plan is not suitable, and the Council should re-assess their EHC needs. The situation has worsened, and D is now unable to access their school setting.
3. Mrs X wants the Council to recognise the impact its delays had on D, re-assess D’s EHC needs, and update their EHC Plan.

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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 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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)

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How I considered this complaint

7. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation from the Council; and
• relevant law and guidance, and the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
8. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

10. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Reviewing EHC Plans

12. 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.
13. 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) 

EHC Plan appeal rights

14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
15. There is a right of appeal to the SEND Tribunal against a decision not to amend an EHC Plan following a review. If the council decides not to amend an EHC Plan it must inform the child’s parents or the young person of this right to appeal.
16. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
17. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

What happened

18. In September 2022, D started year 7. D had an EHC Plan, and their school held an annual review meeting in November 2022.
19. In June 2023, Mrs X had not heard further about the review of D’s EHC Plan following the meeting seven months earlier. Mrs X complained to the Council about this. The Council’s complaints team passed this back to its SEN service to resolve and respond.
20. In October 2023, D had now started year 8 and Mrs X had not heard further from the Council following her complaint, so she chased this up.
21. In November 2023, one year after the review meeting, the Council issued its decision that it would maintain D’s EHC Plan with no changes. Mrs X disagreed with this decision as she thought the Council should amend the Plan, so she appealed to the SEND Tribunal.
22. In March 2024, Mrs X brought her complaint to the Ombudsman. She said the Council had delayed its decision not to amend the Plan and failed to respond to her complaint about this. We chased the Council and it responded to Mrs X’s complaint. The Council said:
• it accepted it had failed to meet statutory timescales for the EHC Plan review, and had not communicated effectively with Mrs X. The Council apologised for the frustration caused; and
• it could not consider Mrs X’s complaint further because she had now appealed to the SEND Tribunal about its decision not to amend the EHC Plan. It invited Mrs X to come back to the Council to escalate her complaint to Stage 2 once the Tribunal finished its consideration of her appeal.
23. Following the Council’s final response to the complaint, we began our investigation. At the time of this decision the SEND Tribunal has not yet considered Mrs X’s appeal and D’s EHC Plan remains the same.

Parts of the complaint I have not investigated

24. Mrs X disagreed with the Council’s November 2023 decision not to amend the EHC Plan following review.
25. I did not investigate this part of the complaint because Mrs X appealed to the SEND Tribunal about the Council’s decision not to amend the Plan. The law says the Ombudsman cannot investigate any matter which has been appealed to the Tribunal. I only investigated the delays before the Council made this appealable decision.

My findings

EHC Plan review delay

26. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
27. Following the November 2022 review meeting, the Council should have issued a decision about whether it would amend the EHC Plan within four weeks, by 12 December 2022. It did not issue its decision that it would not amend the Plan until November 2023, a year after the review meeting. This was fault.
28. The delay by the Council caused uncertainty for Mrs X and D about what would happen with the EHC Plan, which caused them distress. It also frustrated Mrs X’s right to appeal to the SEND Tribunal as she could only do this once she received the Council’s decision. The Council accepted it was at fault and apologised to Mrs X. It should go further to remedy the injustice caused.
29. Mrs X’s view is the provision in D’s EHC Plan does not meet their needs and the Council should have amended it following the review. She therefore believes the Council’s decision not to update the Plan meant D missed extra SEN provision and led to D declining and being unable to access their school setting. However, I can only recommend a remedy for distress caused by the delay before the November 2023 decision not to amend the EHC Plan. I cannot remedy any potential injustice caused by the provision in the Plan potentially being wrong. I cannot make a finding about this on the balance of probabilities, and it is connected to the issue Mrs X appealed to the SEND Tribunal.

Communication and complaint handling

30. The Council accepted it was at fault because it had not communicated effectively with Mrs X and apologised. It should go further to remedy the injustice caused.
31. The Council delayed in responding to Mrs X’s complaint and she had to come to the Ombudsman for us to chase a response. I also found fault with the information the Council provided in its final complaint response. It told Mrs X it could not consider her complaint further because she had appealed to the SEND Tribunal about its decision not to amend the EHC Plan. It invited Mrs X to come back to the Council to escalate her complaint to Stage 2 once the Tribunal finished its consideration of her appeal. I consider this response was wrong.
32. The Council had nothing further to comment on the part of the complaint Mrs X had appealed to Tribunal, i.e., its decision not to amend the Plan and whether the Plan was therefore unsuitable. However, this does not mean it could not consider her complaint further at Stage 2. It could have considered further if it had suitably remedied the injustice caused by the faults it had accepted, i.e., its failure to meet statutory review timescales and to communicate effectively with Mrs X. If the Council considered an apology was enough to remedy the injustice caused by the fault it had accepted, it should have directed Mrs X to the Ombudsman to consider whether this remedy was suitable. Instead, it told Mrs X to wait until after the Tribunal appeal, when the Tribunal process can take over a year. This was fault.
33. On the balance of probabilities, my view is if the Council had properly considered its final response to Mrs X’s complaint, it could have provided her with a suitable remedy. Its failure to properly consider this caused Mrs X avoidable time and trouble in bringing her complaint to the Ombudsman.
34. The Council failed to communicate properly with Mrs X and to respond to her complaint properly. This caused Mrs X avoidable distress, time, and trouble. The Council should remedy the injustice caused.

Recurrent fault by the Council

35. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services to ensure it:
• meets statutory timescales for EHC Plan reviews; and
• communicates properly with families and responds properly to complaints within the timescales set out in its complaints procedure.
36. Ofsted and the Care Quality Commission (CQC) inspected the Council’s special educational needs and disability (SEND) service in 2019 and identified nine areas of significant weakness, including the quality of the EHC Plan process. In September 2022, Ofsted and CQC inspected again and identified inadequate progress in all areas of weakness. Following this, in March 2023, the Department for Education (DfE) issued a SEND Improvement Notice. In August 2023, the Council published an Improvement Plan (Accelerated Progress Plan). In this document the Council set out specific actions for improvements to its SEND services, some of which we have been monitoring as part of our casework. This included various actions to address issues with statutory timescales for EHC Plans, and poor communication with families, with new processes introduced around the same time Mrs X complained in mid-2023. Therefore, I have not made further recommendations about these areas as I consider this is being suitably addressed and monitored by DfE.
37. I have also not made recommendations to address complaint handling delays. The Council accepted, following recent Ombudsman report 22003403, there were issues with its complaint handling timescales. It has informed the Ombudsman of its plan to clear this backlog and continues to update us on progress.

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Agreed action

38. Within one month of our final decision the Council will:
1. pay Mrs X £600 to recognise the avoidable distress, time, and trouble caused to the family by the Council’s failings; and
2. share a copy of our final decision with staff in its Children’s Complaints Team. It will remind them that where a complainant has appealed to the SEND Tribunal, this does not prevent the Council from considering how it should remedy injustice caused by delays before the appealable decision.
39. The Council will provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. There was fault by the Council which caused avoidable distress for D and Mrs X, and avoidable time and trouble for Mrs X. The Council agreed to our recommendations to pay a financial remedy and share a copy of our final decision with staff in its Children’s Complaints Team to share learning from the complaint handling faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman