Summary: Mr and Mrs X complained the Council incurred delays in issuing an Education, Health and Care Plan for their son. They also complained the Council incurred delays in responding to their complaint. Mr and Mrs X say the Council’s actions caused avoidable stress and uncertainty to their son and the family. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy and make service improvements to prevent a re-occurrence.

The complaint

1. Mr and Mrs X complained the Council incurred delays in issuing an Education, Health and Care Plan for their son. They also complained the Council incurred delays in responding to their complaint. Mr and Mrs X say the Council’s actions caused avoidable stress and uncertainty to their son and the family and left their son without appropriate support. Mr and Mrs X say they have also incurred avoidable time and trouble in dealing with the matter. They would like the Council to apologise and make service improvements to avoid the same thing happening again.

Back to top

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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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).

Back to top

How I considered this complaint

7. I discussed the complaint with Mrs X and considered the information she and Mr X provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mr and Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care Plans

10. 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 SEND Tribunal or the council can do this. 
11. 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.
12. 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. 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 SEND Tribunal.
13. The courts have established that if someone has appealed to the SEND 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)
14. For young people transitioning from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan, including specifying the post-16 provision and naming the institution, by 31 March in the calendar year of the transfer.  

The Council’s complaints procedure

15. The Council’s complaints procedure says it aims to respond to complaints within a maximum of 10 working days. It says if this is not possible, the Council will let the complainant know when it anticipates providing a response.
16. The procedure says if a complainant is not happy with the Council's response, they can submit the complaint again for a review by a senior manager. The procedure says the same timescale as previously stated applies to this stage of the complaints process.

What happened

17. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance. This chronology includes key events in this case and does not provide details of everything that happened.
18. Mr and Mrs X’s son, Y, had an EHC Plan issued in March 2022.
19. In April 2023, Y’s school held an annual review of the EHC Plan. Mr and Mrs X attended the annual review meeting. As a result of the meeting, a summary of recommendations for actions noted significant outcome changes in respect of Y’s EHC Plan. Y was in Year 10 at school at this time.
20. On 9 July 2023, Mr and Mrs X complained to the Council. They said the Council had not provided them with its decision regarding Y’s EHC Plan following the review held in April 2023. Mr and Mrs X said the Council was in breach of its duty to provide a decision letter within four weeks of the annual review.
21. On 13 July 2023, the Council issued its decision letter. The letter stated the Council intended to maintain Y’s EHC Plan; however, it also referred to the possibility of Mr and Mrs X receiving an amended EHC Plan if significant changes had been discussed as part of the annual review process.
22. Mr and Mrs X contacted an advice and support team, Team A, for assistance as they considered the Council’s decision letter was not clear. Team A are part of the Council. However, Team A operates as a separate and distinct service from the Council’s other SEND services and teams. Team A asked the Council’s SEND service to clarify its decision letter dated 13 July 2023.
23. Team A emailed Mr and Mrs X on 21 July 2023. It said the Council had indicated the annual review report suggested Y’s EHC Plan required significant changes. It said the Council would therefore amend the EHC Plan.
24. Shortly after, the Council emailed Team A to provide further clarification. The Council said the pressures on its SEND service at that time meant it was focusing on transition years. The Council said it would wait until it received Y’s Year 11 review before amending the EHC Plan.

What happened next

25. On 26 July 2023, Mr and Mrs X complained to the Council stating it had not responded to their previous complaint. Mr and Mrs X also complained about the delays in the EHC Plan process. They disagreed with the Council’s decision not to amend the EHC Plan and complained it had decided not to amend Y’s EHC Plan because it was prioritising students in Year 6 and Year 11. Mr and Mrs X said the Council’s actions had a detrimental impact on Y and his forthcoming transition to post-16 education.
26. Mr and Mrs X contacted the SEND Tribunal in late August 2023. They say the Tribunal declined to register an appeal at this time because it considered the Council had not issued a decision letter. Mr and Mrs X say this is despite them providing the SEND Tribunal with a copy of the Council’s letter dated 13 July 2023. In November 2023, Mr and Mrs X contacted the SEND Tribunal again regarding the Council’s decision to maintain Y’s EHC Plan.
27. In November 2023, Y’s school began a further annual review of the EHC Plan to consider Y’s transition to his next setting in post-16 education.
28. In December 2023, the SEND Tribunal contacted the Council to request clarification regarding its decision letter following the annual review held in April 2023. The Council responded and confirmed its decision was to maintain the EHC Plan without making any amendments.
29. Mr and Mrs X registered their appeal to the SEND Tribunal in January 2024.
30. The SEND Tribunal hearing for Mr and Mrs X’s appeal took place in April 2024. The Tribunal’s decision was for the Council to amend Y’s EHC Plan.
31. The Council issued a final EHC Plan to Mr and Mrs X, with amendments, on 10 May 2024. Mr and Mrs X queried the content of the final plan, and the Council issued a further amended final EHC Plan on 28 May 2024.
32. Mr and Mrs X remained dissatisfied with the Council's actions and brought their complaint to the Ombudsman in June 2024.
33. As part of our initial enquiries, we asked the Council to provide its complaint correspondence regarding Mr and Mrs X’s complaint. The Council issued a complaint response to Mr and Mrs X on 22 August 2024. It apologised for delays in the EHC Plan process and acknowledged the substantial amount of time taken to respond to their complaint.

Analysis

34. Councils must complete a review of EHC Plans within 12 months of the first EHC Plan and within 12 months of any later reviews. The Council issued Y’s EHC Plan on 18 March 2022; however, the annual review meeting for this plan did not take place until late April 2023. This is delay and is fault by the Council.
35. Following on from the annual review meeting, the Council was required to issue its decision letter within four weeks. The evidence shows delay as the Council issued its decision letter on 13 July 2023, more than four weeks after the review. This delay is fault.
36. In addition, the Council’s decision letter did not inform Mr and Mrs X of their right to appeal the decision to the SEND Tribunal. This is fault.
37. As Y was transitioning from secondary school to a post-16 setting in September 2024, the Council was required to review and amend his EHC Plan, including specifying the post-16 provision and naming the institution, by 31 March 2024. The Council did not specify post-16 provision until it issued the final EHC Plan in May 2024, following the SEND Tribunal hearing. This is delay and is fault by the Council.
38. There is evidence of delay in issuing the final EHC Plan following the annual review held in April 2023. This is because the Council did not issue a final EHC Plan until May 2024, more than 12 months after the annual review took place. This delay is fault.

The Council’s complaint handling

39. The Council’s complaints procedure states the Council aims to respond to complaints within 10 working days. Mr and Mrs X initially complained to the Council on 9 July 2023, and again on 26 July 2023. The Council issued its complaint response on 22 August 2024, more than 12 months after receiving Mr and Mrs X’s complaint. This is not in line with the Council’s complaints procedure, and is therefore fault.
40. It is positive the Council has itself acknowledged delays in the EHC Plan process and in its handling of Mr and Mrs X’s complaint. In its response to our enquiries, the Council says its SEND team was previously under resourced and without permanent management in place. It says it has carried out a complete review of its systems and appointed a new Head of SEND in June 2024. The Council says this review has led to several amendments to its procedures to improve its timeliness. Among the measures taken, the Council says it has:

• Commissioned a business analyst review resulting in an action plan to identify improvement priorities;
• Renewed its service action plan, which it will review regularly;
• Created terms of reference for all its decision-making panels;
• Carried out system and process mapping for consistency across the department;
• Increased the number of EHC Plan officers and annual review officers, and
• Provided regular reporting to the SEND boards across the local authority.

The Council says it has also improved the timeliness of its complaint handling.

41. I acknowledge the Council’s comments and the steps it says it has taken to improve its service. I also acknowledge its apology to Mr and Mrs X as part of its complaint response. However, this does not fully address the fault identified, or the impact to Mr and Mrs X and Y. I have therefore made recommendations in the final section of this decision statement.
42. Mr and Mrs X say the Council’s actions have caused avoidable stress and uncertainty to themselves and to Y and their family. I acknowledge their comments, as well as the time and trouble taken in chasing the Council regarding the EHC Plan and in following up on their complaint. The fault identified caused an injustice to Mr and Mrs and to Y.

Back to top

Agreed action

43. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr and Mrs X and to Y for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Make a symbolic payment to Mr and Mrs X of £500 in recognition of the avoidable stress and uncertainty caused;
3. Make a further payment of £200 in recognition of the time and trouble taken by Mr and Mrs X regarding this complaint;
4. Remind officers of the Council’s duty to carry out Education, Health and Care Plan reviews, and to issue decision letters and final plans within the statutory timeframes, and
5. Remind its officers to adhere to the Council’s complaints procedure.
44. The Council has also agreed to take the additional following action within six months of the final decision:
1. Carry out a review of its processes to ensure it is carrying out annual reviews, issuing decision notices and finalising amended Education, Health and Care Plans in line with the statutory guidelines.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman