Summary: Mrs B complained the Council delayed in issuing a final Education, Health and Care Plan following an annual review. We found the Council at fault. The Council has agreed to review its process and make a payment in acknowledgement of the injustice caused to Mrs B.

The complaint

1. Mrs B complained the Council has delayed in issuing an Education, Health, and Care Plan (EHC plan) for her child, A. She also says the Council failed to correct its incorrect deadline when she brought this to the Council’s attention.
2. At the time of the complaint, Mrs B wanted the Council to issue the EHCP. This has since been done.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I have considered information provided by the Council and Mrs B, alongside the relevant law and guidance.
9. Mrs B and the Council may comment on this draft decision before a final decision is made.

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What I found

Law and Guidance

10. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN. 
11. An EHC plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 
12. The Council has a duty to review all EHC plans at least annually to ensure they are meeting the child’s needs.
13. Following a review meeting, if the Council decides to amend an existing EHC plan, it must notify the parents and the school within four weeks of the meeting.
14. The Courts have found the Council must then issue any final amended plan within 12 weeks of the review meeting. (R (L,M and P) v Devon County Council.

What happened

15. A is a child with special educational needs, who has an EHC plan in place to help support his needs.
16. In December 2023, a meeting was held to review the plan. At the time, A was in full time education where he was accessing some support. The Council decided to amend the plan to support him better and notified Mrs B within four weeks.
17. The Council told Mrs B it would issue its final amended plan in May 2024.
18. The Council issued its draft amended plan in late March.
19. Mrs B complained to the Council that the date it was working to was outside the statutory timescales, and the amended final plan should be issued in March 2024.
20. The Council responded to Mrs B’s complaint and accepted the draft plan had been late, and again confirmed it would issue the final amended plan in May.
21. The final amended plan was issued in late April.

Analysis and Findings

22. The law requires the Council to issue the final plan within 12 weeks of the review meeting. The final amended plan was issued more than 19 weeks after the review meeting. The final plan was issued almost 8 weeks later than it should have been, and this is fault.
23. In addition, the Council confirmed to Mrs B that it would issue the final plan outside of the required timescales. Despite Mrs B’s information and complaint, it did not acknowledge that the date provided was late, nor provide an explanation for this. This was fault as the Council should be aware of the statutory timescales for the EHC plan process.
24. At this stage, I found Mrs B has been caused an injustice by having to wait two months longer than she ought to have for the Council to provide a plan which was suitable for A’s needs. She also had unnecessary time and trouble to pursue her complaint for the Council to understand its statutory duties regarding the timescales for the EHC plan process.
25. I cannot remedy the injustice the Council’s delays may have had on A, as he was in receipt of an education during the Council’s delays and the Council was not under a duty to provide the provision set out in his EHC plan until this was finalised.
26. If Mrs B disputes the provision set out in A’s final EHC plan, she can exercise her right to appeal to the SEND Tribunal.
27. In previous decisions we have asked the Council to produce a plan as to how it will issue final EHC Plans within the statutory timescales, so I have not recommended a service improvement for this area.

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Agreed action

28. Within one month of the decision, the Council will:

• apologise to Mrs B, in accordance with our guidance on apologies; and
• make a payment of £250 in recognition of the avoidable injustice caused by the fault identified.

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Final decision

29. We have concluded our investigation on the basis the Council is at fault and has caused Mrs B an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman