Summary: Mrs X complained the Council delayed completing two annual reviews of her daughter’s (Y) Education, Health and Care (EHC) plan. The Council failed to decide whether to maintain, amend or discontinue Y’s EHC plan within timescales following the annual review meeting. The Council agreed to make payments to Mrs X to recognise the distress, frustration and uncertainty caused.

The complaint

1. Mrs X complained the Council delayed completing two annual reviews in 2023 and 2024 of her daughter’s (Y) Education, Health and Care (EHC) plan. Mrs X says the Council failed to decide whether to maintain, amend or discontinue the EHC plan within timescales following the annual review meeting. She also complained it delayed responded to her complaint about this.
2. This caused them distress, frustration and uncertainty about the provision her daughter would receive.

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

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What I found

Relevant Law and Guidance

EHC Plans

9. 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

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. 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.
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. 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.
13. 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.

Council’s complaint policy

14. The Council’s complaints policy states it will acknowledge the complaint within three working days and provide a full response within 20 working days.

What happened

15. Mrs X has a daughter Y who is a young adult in education. Y has special educational needs and an EHC plan. In June 2023 the Council held an annual review of Y’s EHC plan.
16. Mrs X raised a stage one complaint with the Council in July 2023 as it had not issued a decision to maintain, amend or discontinue the plan within the 4-week timescale.
17. In August 2023, the Council sent Mrs X an amendment notice which set out the Council’s proposed changes to the plan. The final amended plan was issued the same month.
18. In February 2024, the Council held another annual review of Y’s EHC plan.
19. The Council sent Mrs X a stage 1 complaint response in March 2024 apologising for not providing her with the outcome of the annual review meeting held in June 2023 within the statutory timeframe. It also apologised for the delay in issuing its stage 1 response.
20. Mrs X raised a stage two complaint in April 2024. This was because the Council had not issued a decision to maintain, amend or discontinue the plan within four weeks following the annual review meeting held in February 2024. Mrs X also complained about the delayed stage one response which she received eight months after her initial complaint.
21. The Council provided a stage two response in May 2024 apologising again for the delays following the February annual review and in sending the stage one complaint. It attributed this to backlogs.
22. In May 2023, the Council decided to maintain the current EHC plan following the annual review meeting in February. It sent Mrs X a letter confirming this which included information about how she could ask for mediation or appeal the decision to the SEND tribunal.
23. Mrs X was unhappy with the Council’s handling of the matter and complained to us. Mrs X told us she has still not received a copy of the final EHC plan after receiving the decision to maintain letter in May 2024. Mrs X says she cannot decide whether to appeal the decision until she receives this.

My findings

Annual review June 2023

24. Y’s annual review took place in June 2023, however the Council did not issue an amendment notice until August 2023. This was a delay of approximately four weeks outside statutory timescales which was fault. This caused Mrs X some frustration. However, the Council still issued the final amended plan within timescales.
25. The Council has already apologised for the four week delay which is an appropriate remedy for any injustice caused.

Annual review February 2024

26. Y’s second annual review took place in February 2024, however the Council did not decide to decide to maintain the plan until May 2024. This was a delay of approximately 11 weeks which was fault. This caused Mrs X distress, frustration and uncertainty about the provision her daughter would receive and delayed her right of appeal to the SEND tribunal.
27. Mrs X believes she should have received a copy of the EHC plan after receiving the decision to maintain letter. However, the Special Education Needs and Disability Regulations 2014 states the Council only needs to send a copy of the EHC plan to the parent when it proposes to amend the plan. The decision letter included information about Mrs X’s appeal rights so she could have appealed the decision if she wanted to. The Council was not at fault for not sending Mrs X a copy of the plan.
28. We have found similar fault with the Council on a separate case. Following that case the Council agreed to set up a process to manage annual reviews for EHC plans. Therefore, it does not require a further service improvement.

Complaint handling

29. Mrs X raised a stage one complaint in July 2023 and should have received a response from the Council within 20 working days. There was a delay of approximately eight months which was fault. This caused Mrs X distress and uncertainty.

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Agreed actions

30. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £150 to recognise the distress, frustration and uncertainty caused by the delay in deciding to maintain the EHC plan and issuing a stage one complaint response.
2. Remind complaint handling staff to ensure they provide complaint responses within timescales.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. 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