Summary: Ms X complained the Council failed to issue her child’s education, health and care plan within statutory timescales and it failed to communicate with her effectively. The Council is at fault for delay in finalising the EHC Plan, failing to communicate with Ms X effectively and failing to hold an annual review within 12 months of a previous review. This caused avoidable distress to Ms X and to her child. The Council has agreed to provide a payment of £500 to Ms X and a payment of £500 to her child to acknowledge the avoidable distress caused. The Council has also agreed to make service improvements.

The complaint

1. Ms X complains on behalf of her daughter, Y, that the Council:
• Failed to review Y’s education, health and care (EHC) plan in 2023;
• Delayed issuing Y’s final EHC Plan in 2024
• Failed to fully address her points of complaint; and
• Failed to consider support and reasonable adjustments.
2. Ms X says the Council has delayed her appeal rights, caused anxiety due to not knowing which placement Y would be attending and caused avoidable frustration.

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

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What I found

Relevant law and guidance

Education health and care plans

8. 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. 
9. 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 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. 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.
11. 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.

Reasonable adjustments

12. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
13. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. One of the protected characteristics is disability.
14. The reasonable adjustment duty is in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
15. Service providers are under a positive and proactive duty to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
16. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people might reasonably need.
17. We cannot decide if an organisation has breached the Equality Act as only the Courts can decide this. But we can investigate whether an organisation has properly taken account of an individual’s rights in its treatment of them.

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What happened

18. Ms X has a daughter, Y, who has special educational needs. The Council maintains an education, health and care (EHC) Plan for Y.
19. Y was attending a College and this was named on her EHC Plan.
20. An annual review meeting of Y’s EHC Plan was held in February 2024. Ms X requested the College be named on Y’s EHC Plan from September 2024 to enable her to finish the course she had started.
21. Y enjoyed attending the College, she had made good progress in her education and had built a good rapport with the staff there.
22. The Council received the annual review paperwork from the College in March 2024.
23. In May 2024, the Council’s SEND Panel disagreed with Y continuing at the College in the new academic year starting September 2024. The Council decided it would consult with other settings.
24. Ms X complained to the Council that the Council had not notified her of its decision following the annual review and this was a breach of a statutory timescale. The Council said it would respond to her complaint within 15 working days.
25. After 15 working days, Ms X did not receive a response so she instructed an advocate to help her with communicating with the Council. Ms X wanted the Council to issue Y’s final EHC Plan so that she could appeal the placement.
26. In June 2024 Ms X’s advocate, Ms W, contacted the Council. Ms W reminded the Council it had exceeded the timescales to issue the final EHC Plan, that Y was suffering with extreme anxiety due to the uncertainty around the next academic year and that Ms X had not received a response to her complaint within 15 working days. Ms W also included a letter from Y’s GP detailing the anxiety and stress Y was experiencing due to not being able to go back to the college and the uncertainty around what college and course she will be told to attend.
27. The Council sent its Stage 1 response to Ms X on 17 June 2024 and partially upheld her complaint. It said it had not received the paperwork from the College following the annual review until March 2024, this was three weeks and 6 days after the annual review date. The Council said it was due to this it was unable to comply with the statutory timescales. The Council also found that no annual review of Y’s EHC Plan had taken place in 2023.
28. The Council apologised for the complaint it partially upheld and advised Ms X the Council were in the process of amending Y’s EHC Plan and will be sending a Notice of Amendment for her to consider.
29. Ms X was unhappy with the Council’s response. She was concerned the new academic year was approaching and she did not have a final plan for Y. On 1 July 2024, Ms X contacted the Council again to request Y’s EHC Plan so she could appeal the placement. She told the Council she was concerned about Y because she had begun to lose weight due to the stress and anxiety the delay and uncertainty was causing.
30. The Council told Ms X there was nothing to appeal at the moment as no decision about Y’s placement had been made.
31. On 15 July 2024, the Council advised Ms X the Council’s Panel had agreed to one final year at the college in line with her preference. It provided no reasons for the change in decision.
32. On 7 August 2024, the Council issued Y’s final EHC Plan naming the college.
33. On 7 September 2024 the Council sent its Stage 2 response to Ms X’s complaint. The Council reviewed Ms X’s complaint and decided that a full and informative response was provided in response to her concerns. It said it recognised Ms X’s frustration with the delay Y and her family had experienced and that this was not acceptable. It reiterated that part of the delay was caused by the annual review report being submitted beyond statutory timescales and it acknowledged there had been a delay in considering Ms X’s request for an additional year at the College. The Council apologised for the delay.
34. In September 2024, Y began attending College 1 again.
35. Ms X remained unhappy with the Council’s response to her complaint. She brought her complaint to the Ombudsman on 11 September 2024.

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Analysis

Y’s EHC Plan

36. Annual reviews should be completed within 12 months of the previous review. In this case, there was a delay of 10 months. This is fault. The Council’s delay in reviewing Y’s EHC Plan has resulted in uncertainty that her EHC Plan accurately reflected her needs.
37. Following the annual review meeting, the delayed issuing Y’s EHC Plan by 11 weeks. This is also fault.
38. The Council says the delay is due to receiving the review paperwork late by the College. The Council received the annual review report in March 2024. It is accepted this was late and it meant the Council missed the statutory timescale to issue its decision. However, there was no substantive action to move Y’s case along until 21 May 2024 when the case went to Panel. I consider this delay could have been avoided. The Council has accepted it is at fault for the delay in considering Ms X’s request for an additional year for Y at the College.
39. This delay caused a significant amount of anxiety and stress to Y as she did not know which placement she would be attending in September 2024. I have seen evidence of the impact his had on Y, on her physical and mental health. I also acknowledge the avoidable frustration and time and trouble this caused Ms X, who has autism. It is also delayed Ms X’s appeal rights.
40. I acknowledge the Council has apologised to Ms X. I do not consider this is sufficient in addressing the injustice caused to Ms X and to Y.

The Council’s communication with Ms X

41. The Council was aware Ms X had autism and struggled with processing information if it was not broken down and concise. I can see the Council did keep Ms X updated with how things were progressing and regularly responded to her correspondence.
42. However, I do find the Council at fault for not explaining its reasons for deciding in August 2024 that Y can attend the college when it had previously disagreed with naming it. The Council’s failure to explain the reasons for its decisions has caused a great deal of uncertainty to Ms X and to Y. There was uncertainty about the placement that caused anxiety to Y as she wanted to remain at the college. There is also uncertainty that the Council put Ms X and Y through this stressful period unnecessarily because it has not been communicated why the Council had changed its mind.
43. There is also evidence of the Council asking Ms X for information it already had. This includes Y’s NHS number and medical information on Y’s health that Ms X had already sent to the Council, but it appears it had not been passed on to the relevant person. This caused additional avoidable distress when she was already distressed about Y not being able to attend the college, the uncertainty on which placement would be named, the delay in issuing Y’s EHC Plan, the delayed appeal rights and the impact this was having on Y’s physical and mental health.
44. For these reasons I consider there was fault in the way the Council communicated with Ms X. It could have communicated with her better and avoided causing her distress. The Council should have kept council officers aware of Ms X’s disability and avoided causing her unnecessary frustration.

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Agreed Action

45. To remedy the injustice caused by the fault identified above, the Council has agreed that within four weeks of this final decision, it will:
• Pay Y £500 for the avoidable distress caused by the delay in issuing her final amended EHC Plan, the delay in deciding on her placement and the uncertainty that her EHC Plan reflected her needs due the Council’s failure to review her Plan in 2023;
• Pay Ms X £500 for the avoidable distress caused by the delay in issuing Y’s EHC Plan, the delay in deciding Y’s placement, not holding an annual review in 2023 and for the way it communicated with her.
46. The Council has also agreed that within three months of this final decision, it will demonstrate to the Ombudsman it has a mechanism in place to ensure annual reviews of EHC Plans are not missed.
47. The Council will provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman