Summary: The Council was at fault because of a significant delay in reviewing and amending an education, health and care plan. This delay caused frustration and distress to the complainant and her son, and the Council has agreed to offer a financial remedy and write a letter of apology to reflect this.

The complaint

1. I will refer to the complainant as Mrs J.
2. Mrs J complains the Council did not complete an annual review of the education, health and care (EHC) plan for her son, G, by the statutory deadline. She also complains the Council did not implement provision set out in the EHC plan, and that the Council did not invite a representative from the Child and Adolescent Mental Health Service (CAMHS), or properly consider reports, when carrying out the annual review. Mrs J says this caused anxiety and distress, and left without the support he needed.

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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. 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. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.

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What I have and have not investigated

6. I have investigated Mrs J’s complaint about the delay in completing the annual review.
7. I have not investigated Mrs J’s complaint about the lack of provision. This is because it did not form part of Mrs J’s substantive complaint to the Council. The law requires us to give a council the opportunity to address a complaint through its own process before we investigate, and as the Council has not had that opportunity in this case, we are unable to accept this matter for investigation now.
8. I have also not investigated Mrs J’s complaint about the way the Council carried out the annual review. There is a right of appeal to the SEND Tribunal about the content of an EHC plan, once issued, and this is generally the proper way to address any concerns about the way a plan has been compiled. In any case, Mrs J has confirmed she is satisfied with the content of the plan, and so there is no potential injustice to her or G in this element of the complaint.

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How I considered this complaint

9. I reviewed Mrs J’s correspondence with the Council, and a copy of G’s EHC plan.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

11. G has learning and development difficulties and is subject to an EHC plan. The Council issued a final plan for him in October 2022, meaning it was due for an annual review in October 2023. However, the Council did not complete the review until 19 April 2024, approximately seven months late.
12. During the review meeting, all parties agreed that G’s plan needed to be amended. The Council then had four weeks to issue a formal amendment notice, and a list of the proposed amendments, but did not do so until 18 June, more than twice the permitted length of time.
13. Mrs J had submitted a formal complaint about the delay to the Council on 2 June. She said the review meeting had originally been set for 14 November, but was postponed by the Council because it had not yet completed the necessary paperwork. Mrs J explained what had been discussed when the review meeting was eventually held in April, and that the Council had promised to send a draft copy of the amended plan to allow for her comments, but said she was yet to receive anything.
14. Mrs J also complained the Council had not invited a representative from CAMHS to the meeting, and had failed to obtain some necessary reports. She asked the Council to start adhering to the SEND Code of Practice and to issue G’s amended EHC plan.
15. The Council responded on 24 June. The Council acknowledged it had failed to arrange the annual review on time, and, although it said it had obtained the necessary reports before the meeting, had not shared these with the relevant parties in advance as required. It accepted it had not contacted CAMHS as part of the review.
16. The Council also acknowledged it had not sent the amendment letter within four weeks of the meeting, although it confirmed it had now done this. The Council assured Mrs J it would contact the educational placement which had been proposed for G and that it would provide her with updates. The Council apologised for the faults in how it had handled G’s case, but said it was working to issue his amended EHC plan within the prescribed 12 weeks of the annual review meeting.
17. Mrs J made a complaint to the Ombudsman on 14 July. The Council then issued a final amended copy of G’s EHC plan on 16 August, naming the educational placement Mrs J had been seeking, to begin in the new academic year.

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Legislative background

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 council can do this.
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 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.
20. 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.
21. The council must then issue an amended EHC plan within a further eight weeks of the amendment notice.

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Analysis

22. The annual review of G’s EHC plan was due in October 2023. Had this taken place by the end of October (and assuming it would have decided to amend the plan), the Council would then have had until the end of November to issue an amendment notice, and then until approximately late January to issue his amended final plan.
23. However, the review did not take place until 19 April, approximately seven months late; and the Council did not issue the amendment until 18 June, another four weeks late.
24. The Council then had a further eight weeks to issue the final plan. It also missed this deadline, albeit only by three days. In isolation I do not consider this significant. However, taking the whole process together, G should have had an amended EHC plan some eight months before he did. This is a significant fault, which the Council appears to recognise.
25. Fortunately it appears this delay did not have any major substantive impact on G’s education. When she approached the Ombudsman in July, Mrs J expressed concern that G did not have a confirmed educational placement for the next academic year, but this was resolved when the Council issued the final plan on 16 August, in time for the beginning of the year.
26. Another problem which can arise from a significant delay in issuing a final plan is the consequent delay in the right of appeal, which is only triggered when the plan is issued. However, as I have already noted, Mrs J confirms she is satisfied with the amended plan and has not sought to appeal it. Again, therefore, this was not a consequence of the delay in this case.
27. Despite this, I am satisfied the fault in this case caused significant frustration and distress to Mrs J, both in the sense she was kept waiting for such a length of time, and because of the uncertainty it created about G’s placement for the coming year. This, in itself, is an injustice, which I consider the Council should remedy.
28. Taking account of our published guidance on remedies, I consider the Council should offer Mrs J and G each £150, to reflect the injustice caused to them by the fault in this case. For the avoidance of doubt, this means I consider the Council should offer a total of £300 in remedy.
29. I also consider the Council should write a letter of apology to Mrs J. While I am conscious the Council included an apology in its complaint response, I do not consider this carries the same weight as a separate, formal letter of apology.

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Agreed action

30. Within one month of the date of my final decision, the Council has agreed to:

• offer Mrs J and G each £150, to reflect the frustration and distress they suffered because of the serious delay in reviewing and amending G’s EHC plan; and
• write a formal letter of apology to Mrs J for the same reason. 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 in my findings.

31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman