Summary: Mrs X complained the Council delayed issuing her son (Y’s) amended Education, Health and Care (EHC) Plan within statutory timescales following an annual review in December 2023. She also complained the Council has failed to provide a laptop for her son to access the provision set out in his Plan. The Council was at fault because it failed to issue an amended EHC Plan until December 2024 and it provided delayed and inaccurate complaint responses. The Council was not at fault for failing to provide a laptop but it took too long to consider Mrs X’s request which was fault. This caused Mrs X distress, frustration and uncertainty about her son’s education and delayed her right of appeal to the SEND tribunal. The Council has agreed to apologise and make a payment 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 December 2023. The Council failed to issue an amended EHC Plan until December 2024. She also complained the Council has failed to provide a laptop for her son to access the provision set out in his Plan. Mrs X says the Council failed to provide accurate or timely complaint responses to her concerns.
2. This has caused Mrs X distress, frustration and uncertainty about her son’s education and delayed her right of appeal to the SEND tribunal.
3. Mrs X has also complained about the following:
• Safeguarding concerns in the schools Y attended between 2013-2021;
• After an annual review meeting in September 2022, the Council sent Mrs X a poorly written amended EHC Plan;
• Y is only receiving 6 hours a week tuition despite requests by his tutor to increase this;
• Mrs X says she found out in November 2023 that Y’s education provider was fraudulently invoicing the Council for the education Y was receiving. For example, the provider was charging the Council an increased hourly rate which it had not agreed to.
• Since receiving the amended final EHC Plan in December 2024, Mrs X is dissatisfied with the contents of it.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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.
7. 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)
8. 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 have and have not investigated

9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. I have not investigated the concerns raised about the schools Y attended or the poorly written EHC Plan sent to Mrs X following the annual review. The concerns occurred between 2013-2022. Mrs X did not complaint to us until June 2024, over twelve months later. Therefore, this period of time is late. It was reasonable for Mrs X to have complained to us much earlier, so I have not exercised my choice (discretion) to investigate.
11. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
12. I have not investigated Mrs X’s concern regarding Y only receiving 6 hours of tuition a week despite requests by his tutor to increase this. This is because it is a new complaint which the Council has not had the opportunity to consider and respond to. I have signposted Mrs X to the Council’s complaints procedure should she choose to raise a complaint about this.
13. I have not investigated Mrs X’s concern about the contents of the EHC Plan issued in December 2024. This is because it is a new complaint which the Council has not had the opportunity to consider and respond to. Also, Mrs X has a right of appeal to the SEND tribunal about section B, F and I of the EHC Plan.
14. I have not investigated Mrs X’s concerns about the education provider fraudulently invoicing the Council for Y’s education. This is because there is no injustice to either Mrs X or Y. There is no evidence or complaints made to suggest Y did not receive the provision set out in his EHC Plan as a result of this. If the Council believes it has overpaid for Y’s education, it will need to take this up with the education provider.

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How I considered this complaint

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

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What I found

EHC Plans

18. 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

19. 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.
20. 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) 
21. 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.

Council’s complaint policy

22. The Council’s complaint policy states it will investigate and respond to a stage one complaint within 20 working days. If a person escalates their complaint, the Council will investigate and respond to a stage two complaint within another 20 working days.

What happened

23. Mrs X has a son (Y) of secondary school age. Y has special educational needs and an EHC Plan in place which outlines the specialist provision he is entitled to. Y has pain in his hand when he writes. Therefore, section F says consideration should be given to alternative methods of recording his written work, for example using alternative technologies.
24. Between 2021 and 2023, Y received tuition from an alternative education provider (A). During this period, provider A invoiced the Council for a laptop for Y to record his work on which Mrs X has provided evidence of. Y never received this. However, the Council says he did have access to a computer he could use which was property of provider A. Since early 2024, Y has received tuition through a different provider (B).
25. In November 2023, Mrs X’s MP complained on her behalf that Y’s annual review was overdue. She also complained that provider A had not issued Y with the laptop it had invoiced the Council for and instead Y’s teacher scribes his answers.
26. In December 2023, the Council held an annual review of Y’s Plan. 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 early January 2024. The Council sent Mrs X the amendment notice in February 2024 outlining the changes it intended to make to the Plan. Ultimately, the Council should have issued the amended final EHC Plan by early March 2024.
27. In January 2024, the Council responded to the MP’s complaint saying that it had now sent Mrs X a copy of Y’s amended EHC Plan. However, this was incorrect as the Council did not send the amendment notice until February 2024. It also did not address the concern around provider A not issuing the laptop to Y.
28. In February 2024, a SEND officer emailed the Council on Mrs X’s behalf asking whether it had resolved the issue regarding Y’s laptop. The officer also asked whether the Council could consider the laptop as part of the costing for Y’s education package. The reason for this was Y did not have access to a laptop or computer to record his work since moving to education provider B. The Council advised it had not yet rectified the laptop issue, but it would have an answer after February half-term.
29. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.
30. Since Mrs X has complained to us, the Council issued Y’s amended final EHC in December 2024. However, the Council is yet to resolve or consider providing Y with a laptop.

Council’s response to our enquiries

31. In response to the annual review delays, the Council says due to challenges it was facing it instructed the service to prioritise tribunal cases and those pupils in transitional years. However, the expectation was for officers to continue to process annual reviews within statutory timescales. It acknowledges and regrets on occasions it has not responded to annual reviews within this timeline.
32. The Council has attributed annual review delays to capacity issues. In recognition of this, the Council says it is working through a programme of recovery including increasing staff. It says it is in the process of recruiting an additional three Team Managers, 20 Assistant Case Managers and six Case Workers. It says the additional capacity will improve the Council’s ability to respond to annual reviews within statutory timescales and improve communication with families.
33. In response to complaint response delays, the Council also acknowledges and regrets that it did not respond to all complaints from Mrs X within its timeframes.
34. In response to the issues about Y not receiving a laptop, the Council says no formal agreement or funding has been given for a laptop. The Council says the EHC Plan does not state Y requires a laptop but that alternative methods of recording his work should be considered. The Council acknowledges that due to pressures on the system, the decision about the request for a laptop was not communicated by February half-term 2024 as promised. The Council says this will be considered at Y’s next annual review which it has scheduled for late January 2025.

My findings

Annual reviews

35. Y’s annual review took place in December 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 February 2024. This was approximately four weeks outside of timescales and fault.
36. The Council issued the amended final Plan in December 2024 which was approximately 39 weeks outside of statutory timescales. The delays in issuing the amended final Plan was fault and caused Mrs X distress, frustration and uncertainty about Y’s education. It has also delayed her right of appeal to the SEND tribunal.
37. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to create and provide us with an action plan setting out the efforts it is making to reduce delays in the Education Health and Care Plan process. It has also explained it is working through a programme of recovery including increasing staff to improve the Council’s ability to respond to annual reviews. Therefore, a service improvement is not required.

Complaint handling

38. Mrs X’s MP made a complaint on her behalf Mid-November 2023 but she did not receive a formal complaint response until end of January 2024. The Council should have issued the complaint response within 20 working days. It was issued 7 weeks out of timescale which was fault. The Council has already apologised for this which is an appropriate remedy for any injustice caused.
39. However, the complaint response issued by the Council was inaccurate. The Council’s complaint response says it issued Mrs X with Y’s amended EHC Plan in January 2024 which is incorrect as the Council did not send Mrs X the amendment notice until February 2024 and did not issue the amended EHC Plan until December 2024. The Council’s inaccurate complaint response was fault which caused Mrs X confusion and uncertainty about Y education.
40. We have found similar fault with the Council on a separate case. Following that case, the Council has sent a reminder to complaint handling staff to ensure they provide complaint responses within timescales. Therefore, a service improvement in relation to delays is not required.

Laptop for Y

41. Between 2021 and 2023, Y received tuition from education provider A. During this period, provider A invoiced the Council for a laptop for Y to record his work on. However, Y never received the laptop. Whilst there is evidence provider A invoiced the Council, there is no evidence the Council paid this and it says it did not approve funding for the laptop. There is also no evidence the purchase of the laptop was to give it to Y permanently. Y’s EHC Plan says consideration should be given to alternative methods of recording his work such as using alternative technologies. Whilst Y was receiving tuition from provider A, he had a scribe and access to a computer, so he was able to record his work. Y’s EHC Plan does not state that he requires a laptop and so the decision to issue him with one is discretionary. Therefore, there was no fault in the Council not issuing Y with a personal laptop.
42. However, Y then moved to education provider B in 2024 and did not have access to a laptop or computer to record his work. It is clear in the correspondence from the SEND officer to the Council in February 2024 that Mrs X would like for the Council to consider a laptop as part of Y’s education package. The Council said it would consider Mrs X’s request and have an answer about the laptop after February half-term 2024. However, it did not meet this deadline, and it is now considering this as a part of Y’s annual review in January 2025. This is a significant delay of 11 months which has caused matter to drift without meaningful progression. This was fault. This has caused Mrs X distress, frustration and uncertainty about whether the Council is meeting Y’s educational needs.

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Agreed action

43. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by the delays with Y’s annual review and considering Mrs X’s request for a laptop. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £500 to recognise the distress, frustration and uncertainty caused by the delays with Y’s annual review and considering her request for a laptop.
3. Ensure Mrs X’s request for a laptop is considered at the annual review in January 2025 and if agreed, issue the laptop with no further delays.
4. Remind complaints officers that complaint responses must contain accurate and factual information pertaining to the complaint.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. 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