Summary: Mr B complained the Council delayed in issuing a final Education, Health and Care Plan following an annual review and failed to communicate throughout the process. We have found the Council at fault for a delay in issuing the final amended Education, Health and Care Plan and for its poor communication. These faults caused distress, frustration and uncertainty to Mr B. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Mr B complained the Council delayed in issuing a final Education, Health and Care Plan following an annual review in October 2023. He also complains the Council failed to communicate effectively throughout the process and failed to secure a suitable school placement for his child, X. Mr B says X has been out of school since July 2024 and prior to this was on a part-time timetable. This has impacted both parent’s mental health and jobs. Mr B would like the Council to take ownership of any failings and correctly manage X’s case.

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The Ombudsman’s role and powers

2. 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)
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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

6. I have not investigated Mr B’s complaint the Council failed to secure a suitable placement for X. The law says we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter. When X’s final Plan was issued, Mr B had a right to appeal the placement named in section I and I have seen no reason Mr B could not have used this appeal right.

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How I considered this complaint

7. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
8. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

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. 

Annual reviews

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. 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.

What happened

13. An annual review meeting took place in October 2023. The Council wrote to X’s parents at the beginning of December 2023 to tell them it was going to amend X’s EHC Plan. The Council agreed to name a specialist placement in X’s Plan. The Council should have issued the final amended Plan within 12 weeks of the annual review meeting, by the end of December 2023.
14. The Council issued X’s final amended EHC Plan in August 2024, naming a mainstream placement which had repeatedly told the Council it could not meet X’s needs. This is approximately an eight month delay in issuing the final amended Plan. This delay caused X and his family distress, uncertainty and frustration and significantly delayed Mr B’s appeal rights.
15. As part of our investigation the Council was asked to provide evidence of correspondence between its SEND team and Mr B between October 2023 and September 2024. Other than issuing its decision to amend X’s EHC Plan, the Council has not provided any evidence it communicated with Mr B following the annual review, between October 2023 and March 2024. This is fault which caused Mr B distress, frustration and uncertainty.
16. From March 2024 onwards the Council was in regular contact with X’s parents to update them of its progress with school consultations.
17. In response to our enquiries the Council explained the lack of communication with X’s parents’ and the delay in finalising X’s EHC Plan was due to staff absences.

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Agreed action

18. Within one month of the final decision the Council will:
• Apologise to Mr B for the faults identified. 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 its apology.
• Make a symbolic payment of £1,200 in recognition of the distress, uncertainty and frustration caused to X and Mr B by the Council’s delay in issuing the final EHC Plan.
• Make a symbolic payment of £300 to Mr B in recognition of the distress, frustration and uncertainty caused by the Council’s failure to communicate effectively with Mr B between October 2023 and March 2024.
19. Within three months of the final decision the Council will put a process in place to ensure communication with parent’s is not impacted by staff absences.
20. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman