Summary: Mrs X complained the Council did not properly complete the 2022 annual review of her daughter, Y’s Education, Health and Care Plan, named an inappropriate placement and delayed issuing an amended plan after the 2023 annual review. She also complained about the Council’s complaint handling. Mrs X said this caused unnecessary distress and uncertainty. There was fault in the way the Council did not issue a decision after the 2023 annual review, delayed issuing an amended plan and delayed completing its complaint process. This frustrated Mrs X’s right of appeal to the Tribunal and she was put to time and trouble to complain. The Council should apologise, make a financial payment and issue guidance to its staff.

The complaint

1. Mrs X complained the Council did not properly complete the 2022 annual review of her daughter, Y’s Education, Health and Care (EHC) Plan, named an inappropriate placement and delayed issuing an amended EHC Plan after the 2023 annual review. She also complained about the Council’s complaint handling. Mrs X said this caused unnecessary distress and uncertainty.

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I have and have not investigated

6. I have investigated Mrs X’s complaint about how the Council delayed issuing the amended EHC Plan following the 2023 annual review.
7. I have not investigated any reference to the 2022 annual review. This is a late complaint and there is not enough reason to accept this part of the complaint for investigation now.
8. I have not investigated the naming of what Mrs X considers an inappropriate school as this is appealable to the SEND Tribunal and the Ombudsman does not have jurisdiction to consider this matter.

Back to top

How I considered this complaint

9. I read Mrs X’s complaint.
10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

12. 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. 
13. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. 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.
15. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

17. The Council complaint policy sets out the Council will respond in 20 working days at both stage one and two of the process.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Y has additional needs and has an EHC Plan. Y’s school held the annual review in April 2023. The meeting notes recommended a change to the outcome or provisions.
20. The school sent the annual review paperwork to the Council in June 2023.
21. Y started attending an educational placement in September 2023. Mrs X chased the Council for the outcome of the annual review.
22. Mrs X complained to the Council in December 2023. She complained the Council delayed processing the 2023 annual review.
23. The Council issued a draft EHC Plan in January 2024.
24. The education placement held another annual review at the end of January 2024.
25. The Council responded to Mrs X’s complaint in February 2024. The response accepted the Council did not process the 2023 annual review within the statutory timescales and apologised. The Council noted it issued the draft plan in January 2024 and while amendments were made to section B, there were no significant amendments to section F.
26. Mrs X asked the Council to consider her complaint at stage two in March 2024.
27. The Council agreed to amend the Plan again in March 2024. It issued another draft EHC Plan in April 2024.
28. The Council issued its stage two response in April 2024. The Council accepted the 2024 annual review agreed evidence was missing from the Plan. The Council stated the stage one response accepted the significant delay and apologised. The Council did it did not consider this delay caused a significant impact as the amendments would not have impacted provision.
29. The Council issued the final EHC Plan in May 2024.
30. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to follow the law, train its staff and provide a financial remedy.
31. In response to my enquiries the Council accepted the delays in this case. It said there were no updates needed to the Plan as the updated information was about health and social care. The Council also said it only issued the amended draft Plan in January 2024 because a previous manager asked for the information on a new template.

My findings

32. The law set out in paragraphs 14 and 16, states the Council must issue its decision to amend, maintain or discontinue the EHC Plan. The Council did not issue a decision following the April 2023 annual review. In response to my enquiries the Council said it did not need to amend the plan. It noted the annual review documentation did not recommend amending the educational part of the plan. This is correct, but the documentation did recommend amending the health and social care parts of the plan. Regardless, the Council should have issued a decision confirming if it intended to maintain or amend the Plan. Its failure to do so was fault and frustrated Mrs X’s right of appeal to the Tribunal.
33. The law also sets out if a Council amends the plan, it must issue the notice to amend, draft and final amended EHC plan within 12 weeks of the annual review meeting. The Council did not issue a draft amended Plan for nine months. The Council then almost immediately held another annual review meeting where it decided to further amend the Plan. It issued the amended final Plan in May 2024.
34. In response to my enquiries, the Council said it issued the draft in January 2024 to place the Plan on a new template in advance of the next annual review meeting scheduled later that month. It said this was at the request of a manager. The Council did not mention this in its complaint response. I have not seen any communications about this, and I have seen no evidence of a manager asking this. The explanation for the draft being issued is at odds with the view given in the Council’s complaint responses. Those said because there were no changes required to the educational provision, there was no need to issue a revised Plan. The contradictory responses are additional fault. Mrs X was still denied any ability to challenge the contents of the EHC Plan while it remained at draft.
35. The Council also accepted in the stage two complaint response, following the 2024 annual review the Plan “missed evidence” so the Council accepted the Plan was not accurate. If the Council had either issued the decision not to amend, or amended the plan, within timescales, Mrs X could have appealed to the Tribunal.
36. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. 
37. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
38. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

Complaint handling

39. The Council policy mentioned in paragraph 18, sets out a 20-day timescale for stage one and two complaints. The Council issued its stage one response after 49 days. This delay is fault and Mrs X was put to time and trouble to complain.

Back to top

Agreed action

40. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not issuing a decision following the 2023 annual review, delaying issuing the final EHC Plan and delays in the complaint handling. 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.
• Pay Mrs X £300 as an acknowledgement of the frustration the Council fault caused.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the Council’s statutory duties in issue decision notices within four weeks of the annual review and ensure the final amended Plans are issued within the relevant timescale.
41. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

42. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman