Summary: Mrs X complained the Council delayed completing her child’s Education, Health and Care Plan outside the statutory timescales. Mrs X also complained the Council failed to communicate with her effectively. The Council accepted its fault for delays and poor communication and the uncertainty and frustration this caused. The Council has produced a Final Education, Health and Care plan for Mrs X’s child and offered Mrs X an apology and payment totalling £1,350 for the uncertainty and frustration its fault has caused. I have ended my investigation because this is suitable action to resolve Mrs X’s complaint and further investigation by the Ombudsman would not add to this.

The complaint

1. Mrs X complained the Council delayed in completing the annual review of her child’s Education, Health and Care Plan outside the statutory timescales.
2. Mrs X also complained the Council failed to provide suitable funding to her child’s school for the Education, Health and Care Plan provision.
3. Mrs X says the Council failed to communicate effectively with her about this matter.

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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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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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How I considered this complaint

8. I have considered all the information Mrs X provided. We have asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had opportunity to provide comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

10. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
11. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
12. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
13. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
14. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
15. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
16. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
18. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
19. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

20. Mrs X’s child, who I shall refer to as Y, has an EHC Plan.
21. On 16 October 2023, Y’s school completed an emergency annual review for Y’s EHC Plan.
22. Y’s school sent the annual review documents to the Council on 13 December 2023.
23. Mrs X complained to the Council on 6 May 2024. Mrs X said the Council had failed to adhere to the statutory timescales for review Y’s EHC Plan and the Council had communicated poorly with her.
24. The Council issued a Stage 1 complaint response on 24 May 2024. The Council said:
• It had delayed in completing the annual review process for Y.
• It understood communication between Mrs X and the SEND Team has not been in line with its communication protocols.
• It apologised for its fault.
• It had set up a Recovery Team to help process the backlog in annual reviews of EHC Plans.
25. Mrs X sought consideration of her complaint at Stage 2 of the Council’s complaint response on the same date the Council issued the Stage 1 response. Mrs X sought for missed provision caused by the delays in completing the EHC Plan annual review process to be appropriately addressed.
26. The Council issued a Stage 2 complaint response on 5 July 2024. The Council said:
• It upheld Mrs X’s complaint about it failing to adhere to the statutory timescales for completing the annual review of Y’s EHC Plan.
• It upheld Mrs X’s complaint about poor communication from the Council’s SEND Team.
• As part of the Stage 2 response process it could not require issuing of a Final EHC Plan for Y.
• Within 10 working days the Council should offer a symbolic payment to acknowledge the frustration and uncertainty caused by delays in the annual review process and for the lack of communication with Mrs X.
27. On 25 July 2024, the Council offered Mrs X £500 for the frustration and uncertainty caused through delays in the annual review process and £150 for the additional frustration caused by lack of communication. Mrs X brought her complaint to the Ombudsman the same day.
28. On 26 July 2024, the Council issued a draft amended EHC Plan for Y.
29. The Council issued a Final EHC Plan for Y on 7 October 2024.
30. In response to the Ombudsman’s initial enquiries, the Council acknowledged its fault. The Council offered an extra £700 to Mrs X for the frustration and uncertainty it caused through the further delays in producing a Final EHC Plan for Y.

Analysis

31. Following the annual review meeting held for Y’s EHC Plan on 16 October 2023, the Council had 12 weeks to issue a Final EHC Plan for Y. This meant the deadline for the Council issuing the Final EHC Plan was 8 January 2024.
32. The Council has acknowledged in its Stage 1 complaint response, Stage 2 complaint response and in response to the Ombudsman’s enquiries that it failed to meet this timescale. The Council has already accepted fault for this.
33. The Council has corrected this fault on 7 October 2024 by producing the Final EHC Plan for Y. There is no ongoing injustice in this part of the complaint.
34. In total, the Council delayed by 10 months outside the statutory timescales in producing this Final EHC Plan for Y. The Council offered a total of £1,200 for the avoidable frustration and uncertainty caused by its delay. Such an offer is suitable to reflect the fault. Further investigation by the Ombudsman would not add to this monetary award.
35. Mrs X requested the Council addresses any missed provision through delays in amending Y’s EHC Plan. A council is only obliged to ensure provision detailed in a child’s current EHC Plan is put in place and not any potential future provision from a potential new EHC Plan until this is produced. While delays in completing the annual review process may delay provision from a new EHC Plan, the Council does not have a duty to provide this retrospectively. The award of £1,200 is suitable to reflect the uncertainty over the potential lost provision caused by the Council’s delays.
36. The Ombudsman cannot investigate the actions of schools as part of our process. The Council has shown it provided funding to Y’s school since September 2023 for Y’s EHC Plan. The Council has put in place appropriate measures for Y to receive their EHC Plan.
37. The Council offered Mrs X £150 for the additional frustration it caused Mrs X through the lack of communication with her. Given the circumstances of Mrs X’s complaint, this award is in line with the Ombudsman’s guidance on remedies. Again, further investigation by the Ombudsman would not lead to a different outcome.
38. There is no public interest to continue an investigation into this complaint because the Council has already taken suitable steps to address the backlog in EHC Plan annual reviews through setting up its Recovery Team. Since the Council is already taking suitable steps to address the identified fault, further investigation by the Ombudsman would not add to this.

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Agreed action

39. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and ensure it has paid Mrs X £1,350, consisting of £650 promised following its Stage 2 response and further £700 offered in response to the Ombudsman’s enquiries. The apology and monetary payment is to address the uncertainty and frustration caused through delays outside the statutory timescales in completing Y’s EHC Plan annual review and poor communication with Mrs X.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have ended my investigation and uphold Mrs X’s complaint. The Council has resolved the underlying complaint issue and offered a suitable remedy to reflect the frustration and inconvenience caused. No further action by the Ombudsman is needed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman