Summary: Ms X complained about the Council’s actions in relation to her child, Y’s, Education, Health and Care (EHC) Plan. The Council was at fault. It delayed issuing a draft amended EHC Plan following an annual review meeting and failed to issue a final amended EHC Plan. The Council has already apologised. The Council has agreed it will pay Ms X £200 to acknowledge the distress and frustration it caused her.

The complaint

1. Ms X complained the Council failed to issue a final amended Education, Health and Care (EHC) Plan for her child, Y, following an annual review meeting in December 2023. Ms X said this caused her distress and frustration. She said as a result, she pursued legal advice which affected her financially. She wants the Council to apologise to her and provide her with a financial remedy. She also wants the Council to make changes to its service to prevent a recurrence of fault.

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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)
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 Tribunal in this decision statement.
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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How I considered this complaint

6. I spoke with Ms X and considered information she provided.
7. I considered information provided by the Council.
8. Ms X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

9. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Annual reviews of EHC Plans

10. The council must arrange for an 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.
11. After the review meeting, the council must make one of the following three decisions: to keep the EHC Plan as it is, to amend it or to cease it. All three decisions carry a right of appeal to SEND Tribunal.
12. Where the council has decided to amend the EHC Plan, the law states the council must notify the parent of its decision to amend it and what the proposed changes are within four weeks of the annual review meeting. The council must then issue the final amended EHC Plan within eight weeks of this amendment notice. Therefore, the council must issue a final amended EHC Plan within 12 weeks of the annual review meeting.

What happened

13. Ms X’s child, Y, has special educational needs and an EHC Plan. Y currently attends a specialist primary school full time.
14. In early-December 2023, the Council in addition to other professionals involved with Y’s education, carried out an annual review meeting. Ms X said the Council agreed to amend Y’s EHC Plan however, it did not officially notify her in writing or inform her what changes it proposed to make.
15. Ms X said the Council’s communication with her was poor following the annual review meeting. As a result, she sought legal advice via a solicitor. In early June 2024, Ms X’s solicitor wrote to the Council and said the Council:
• had agreed to amend Y’s EHC Plan at the annual review meeting however, it had not confirmed this in writing;
• had still not issued a draft amended EHC Plan; and
• should have issued a final amended EHC Plan by the end of February 2024 and it had not done so.
16. Ms X’s solicitor said they had contacted the Council on six occasions between February and May 2024 in relation to the Council taking no action following the annual review meeting.
17. Ms X’s solicitor continued and said the Council had breached its statutory duties. They asked the Council to issue a decision that it would amend the EHC Plan and issue a draft amended EHC Plan clearly marked with the proposed changes within the next 14 days.
18. Later in June 2024, the Council responded to Ms X’s solicitor and:
• apologised for the delay. It said the delay was due to staff sickness; and
• said it would issue a draft amended EHC Plan seven days later than the solicitor’s requested date. The Council sent Ms X a letter confirming it would amend the EHC Plan.
19. Ms X said the Council issued a draft amended EHC Plan over the Summer however, it did not issue a final amended EHC Plan.
20. Ms X remained unhappy and complained to us. During our discussion with Ms X, she said:
• she would not have appealed the Council’s decision if it had issued a final amended EHC Plan because she wanted to focus on the next annual review meeting as it was related to Y transferring to a secondary school; and
• although the Council did not issue a final amended EHC Plan, Y continued to receive an education.

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Findings

21. The annual review meeting took place in early-December 2023. The Council said it had agreed to amend Y’s EHC Plan. Following the annual review meeting, in line with statutory timescales, the Council should have issued Ms X with a notification of proposed changes and an amended EHC Plan by early January 2024. The Council delayed informing Ms X it would amend the EHC Plan and delayed issuing a draft amended EHC Plan. The Council was at fault.
22. The Council should have issued a final amended EHC Plan towards the end of February 2024 in line with statutory timescales. However, it did not issue a final amended EHC Plan at all. The Council was at fault.
23. Although Ms X said she would not have appealed and Y continued to receive an education, the Council’s delay caused Ms X distress, uncertainty over whether Y’s education remained appropriate and frustration. The Council had apologised to Ms X in its response to her solicitor which was appropriate. However, I have recommended a further remedy for the injustice caused to Ms X.
24. The Council said the delay in issuing Y’s EHC Plan following the annual review meeting was caused by staff sickness. In September 2024, Ofsted completed an inspection of the Council’s services in relation to children and young people with special educational needs and/or disabilities. The inspection report highlighted the Council’s quality assurance of EHC Plans and annual reviews was not robust.
25. In addition, earlier this year, we investigated a separate complaint under this Council about similar issues. The Council agreed to review its procedures for monitoring and ensuring timely annual reviews to prevent similar delays in future.
26. As Ofsted already identified the issue related to this case as an overall area of improvement and the Council agreed to take action in a similar case we investigated, I have not recommended service improvements.

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Agreed Action

27. Within one month of the final decision, Council has agreed it will pay Ms X a symbolic payment of £200 for the distress and frustration it caused her by the faults identified above.
28. The Council should provide us with evidence it has complied with the above action.

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Final Decision

29. I have now completed my investigation. The Council was at fault. It has agreed to the recommendation to remedy the injustice caused to Ms X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman