Summary: Mrs X complained the Council delayed telling her it was going to amend her child’s Education, Health and Care Plan following an annual review and has still not sent her a final amended Education, Health and Care Plan. Mrs X said her child is not getting the support they need because of these delays. We found the Council at fault for not telling Mrs X the outcome of the annual review or issuing a final Education, Health and Care Plan within the statutory timescales. To remedy the injustice caused the Council agreed to apologise, make a payment to Mrs X for the distress caused and issue her child with a final Education, Health and Care Plan.

The complaint

1. Mrs X complains the Council:
• Did not issue a decision about whether it would cease, maintain, or amend her child’s Education, Health and Care Plan following their annual review within the statutory timescale.
• Did not issue a final Education, Health and Care Plan for her child following their annual review within the statutory timescale.
• Failed to properly communicate with her about the proposed amendments to her child’s Education, Health and Care Plan.
• Failed to carry out an ICT assessment for her child despite professionals agreeing this was necessary.

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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. 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)

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What I have and have not investigated

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. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN in their EHC Plan, the special educational provision specified, the school or placement or that no school or other placement is specified in the EHC Plan.
6. I have not investigated Mrs X concerns with the content of her child’s Education, Health and Care Plan, or the proposed amendments the Council wanted to make. If Mrs X disagrees with this she can appeal to the SEND Tribunal about the content of her child’s Plan.

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How I considered this complaint

7. As part of this investigation, I considered the information provided by Mrs X and the Council. I discussed the complaint with Mrs X over the telephone. I sent a draft of this decision to Mrs X and the Council for comments.
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 found

Law and guidance

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.
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. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

What happened

14. Mrs X’s child, Y, has special educational needs and an EHC Plan. In early February 2024 the Council held an annual review of Y’s EHC Plan. Professional advice from an educational psychologist recommended Y have an ICT assessment. Mrs X also believed from the outcome of the annual review meeting the Council would arrange this for Y.
15. After the annual review meeting Mrs X contacted the Council, in March 2024, about some proposed amendments to see if the Council had agreed to these. Mrs X did not receive a response so sent follow up emails to the Council in April 2024. Mrs X did not receive a response from the Council which addressed her questions about the amendments to Y’s EHC Plan.
16. In late April 2024, Ms X complained to the Council as she had not received a decision following Y’s annual review about whether the Council would amend, maintain, or cease Y’s Plan.
17. The Council responded to Mrs X’s complaint in early May 2024. The Council explained there was a delay processing Y’s proposed EHC Plan by its business support team. The Council recognised it had not told Mrs X its decision to amend the EHC Plan within the statutory timeframe and said this was caused by increased demand on the service combined with staff sickness. The Council said it would send her a proposed amended EHC Plan by 10 May 2024.
18. On 13 May 2024, Mrs X asked the Council to consider her complaint at stage two of its process. Mrs X said she experienced poor levels of communication from the Council when trying to contact it about what amendments it would include in Y’s EHC Plan. Mrs X said she had experienced delays with annual reviews in previous years so did not accept the Council’s explanation for the delays. Mrs X also said the Council had not issued a proposed amended EHC Plan by 10 May 2024.
19. In late May 2024, the Council sent Mrs X a proposed amended EHC Plan for her to comment on. The Council also replied to Mrs X’s complaint. The Council said:
• It upheld her complaint about not telling Mrs X about its decision to amend Y’s EHC Plan within four weeks of the annual review meeting.
• Mrs X’s caseworker’s assurances at the annual review meeting should have been followed through and apologised for any lapses in their communication.
• It apologised for not issuing the proposed amended EHC Plan by 10 May 2024.
• The Council’s SEND team has a new leadership team in place who are reviewing the service and putting in place new processes to minimise these delays happening in future.
20. Mrs X asked the Council to consider her complaint at stage three of its complaints process in early June 2024. Mrs X said this was the second time she has had to complain about delays following annual reviews as she had to complain a few years ago. Mrs X said she did not receive notice of the Council’s decision to amend until 16 weeks after the annual review meeting. Mrs X said Y had not received an ICT assessment despite her asking for this after the annual review meeting. Mrs X said she had concerns about the wording used in Y’s proposed amended EHC Plan.
21. In early June 2024, Mrs X sent the Council her response to the proposed amended EHC Plan she received.
22. In early July 2024, the Council sent Mrs X its final response to her complaint. The Council:
• Apologised this was the second time Mrs X had to complain about delays following annual reviews. The Council said it was taking steps to improve its service.
• Said it would work with Mrs X to address the concerns she had about the draft EHC Plan. If it could not resolve these she could appeal to the SEND Tribunal.
• Apologised for the poor communication Mrs X received and had asked its head of service to look into this.
• Said it had booked an ICT assessment for Y for mid-July 2024 and recognised this was needed following advice from the educational psychologist.
23. Mrs X remained dissatisfied and complained to the Ombudsman. Mrs X said the Council had still not issued a final EHC Plan for Y. Mrs X said the Council had resolved Y’s ICT assessment as it completed this.

Analysis

24. After Y’s annual review meeting on 7 February 2024, the Council should have issued Mrs X with a decision within four weeks telling her whether it was going to cease, maintain, or amend Y’s EHC Plan. Failure to do so was fault.
25. There are records of Mrs X contacting the Council about the content of the Plan and amendments she wanted, however it does not appear her caseworker responded to her about this. This was fault.
26. As the Council intended to amend Y’s EHC Plan, it should have sent Mrs X details of the amendments along with its decision. This Council should have done this within four weeks of the annual review meeting.
27. The Council should have completed Y’s EHC Plan and sent Mrs X a final amended EHC Plan by 1 May 2024 (within 12 weeks of Y’s annual review meeting). Failure to do so was fault. The Council only sent an amended EHC Plan to Mrs X in late May 2024, and has still not sent Mrs X a final EHC Plan for Y.
28. While it is welcomed the Council recognised these faults it has not offered Mrs X and Y a remedy for the injustice they suffered.
29. The delays in amending and completing Y’s EHC Plan have caused Mrs Y and Y avoidable distress as Y does not have the most up-to-date EHC Plan in place to reflect their needs. Y should have received a final EHC Plan seven months ago so the distress Y and Mrs X suffered was prolonged. Mrs X has also disagreed with the Council about the content of the Plan. Therefore by not issuing a final EHC Plan, Mrs X has not been able to challenge the content of the EHC Plan at the SEND Tribunal.
30. Normally we would recommend a council makes service improvements in a case like this. We recently investigated a similar complaint about this Council where there were delays issuing an EHC Plan following an annual review. As part of this case the Council told us it was making improvements to its SEND Service which included a new streamlined annual review process, recruitment of SEND staff, and a new case management system. In this case we recommended the Council provide us with an update on its actions to improve its SEND service after several months. Therefore it is right I allow the Council the opportunity to put into place the changes it has made.

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Agreed action

31. Within one month of my final decision the Council agreed to carry out the following:
• Issue Mrs X with a written apology for the above faults.
• Issue a final EHC Plan for Y.
• Pay Mrs X £700 to recognise the avoidable distress and anxiety caused to her and Y by the delays completing Y’s final EHC Plan following their annual review.
• Pay Mrs X £200 to acknowledge the loss of opportunity she has experienced from not being able to challenge the content of Y’s EHC Plan at the SEND Tribunal.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation and found the Council was at fault and this caused injustice to Mrs X and Y. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman