Summary: Mrs X complained the Council delayed issuing her son (Y’s) amended Education Health and Care (EHC) Plan within timescales following an annual review in March 2023. The Council was at fault because it failed to issue an amended EHC Plan until September 2024. This has caused distress and uncertainty about her son’s education and has delayed her right of appeal to the SEND tribunal. The Council should make payments to recognise this.

The complaint

1. Mrs X complained the Council delayed issuing her son (Y’s) amended Education Health and Care (EHC) Plan within timescales following an annual review in March 2023. The Council did not issue a final plan until September 2024 which caused distress and uncertainty about her son’s education and has delayed her right of appeal to the SEND tribunal.

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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. I spoke to Mrs X about her complaint and considered information she provided.
6. I considered information the Council provided.
7. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans

8. 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.

Annual reviews

9. 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 twelve months of the first EHC Plan and within twelve 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.
10. 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) 
11. When the decision is to amend, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The Council must then issue any final amended plan within eight weeks of this ‘Amendment Notice’ (R (L, M and P) v Devon County Council. Therefore, a final Plan must be issued within 12 weeks of the review meeting.

What happened

12. Mrs X has a son (Y) of primary school age. Y has special educational needs and an EHC Plan which outlines the specialist provision he is entitled to. In March 2023, Y’s school held an annual review of his Plan.
13. Following the annual review meeting the Council proposed to amend Y’s EHC Plan. The Council should have made this decision and issued the amendment notice to Mrs X by mid-April 2023. The Council sent Mrs X the amendment notice in August 2023 outlining the changes it intended to make to the Plan.
14. Mrs X raised a stage one complaint in January 2024 as she had still not received a copy of the amended draft EHC Plan. She should have received this by June 2023.
15. The Council sent a stage one response the same month apologising for the delays and attributing this to capacity issues and annual leave. The Council assured Mrs X it would issue the amended final EHC Plan by March 2024.
16. In February 2024, Mrs X escalated her complaint to stage two because she remained unhappy with the delays since the annual review meeting was held.
17. In March 2024, the Council issued a stage two response apologising again. It said the service is currently under review for its annual review decision making to ensure this does not happen to other families in the future. The Council did not issue the amended final EHC Plan by March as agreed.
18. Mrs X was unhappy with the Council’s handling of the matter and complained to us.
19. Since Mrs X complained to us and we issued a draft decision, the Council issued Y’s amended final EHC Plan in September 2024.

Council’s response to our enquiries

20. The Council has not provided an explanation for the significant delays in issuing an amended final Plan. In its response to our enquiries it said it had an action plan to improve annual reviews in 2022, however that is two years old and no progress appears to have been made.

My Findings

21. Y’s annual review took place in March 2023. Following this, the Council proposed to amend Y’s EHC Plan. The Council should have issued the amendment notice within four weeks of the annual review meeting and the amended final Plan within eight weeks following that. This is a 12-week timescale. The Council issued the amendment notice in August 2023. This was approximately four months outside of timescales and fault.
22. The Council issued an amended final Plan in September 2024 which was 15 months outside of statutory timescales. The delays in issuing the amended final Plan is fault which has caused Mrs X distress and uncertainty about Y’s education. It has also delayed her right of appeal to the SEND tribunal.

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Agreed action

23. Within one month of the final decision the Council should take the following action:
1. pay Mrs X £600 to recognise the distress and uncertainty caused by the delays in progressing Y’s annual review and issuing an amended final plan
2. provide us with an action plan specifically around how the Council intends to reduce annual review backlogs and a further update in three months’ time on its progress with the backlog.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman