Summary: Mrs X complained that the Council delayed in its decision to refuse to reassess her son, Y’s, special educational needs, and delayed in issuing an amended Education, Health and Care Plan following an annual review. We found fault on the part of the Council which caused injustice to Mrs X and Y in the form of distress and delayed access to suitable educational provision. The Council has agreed to make symbolic payments to remedy the injustice caused.

The complaint

1. Mrs X complained that, when she submitted a request for a reassessment of her son, Y’s, special educational needs, in January 2024, the Council delayed in its decision to refuse her request. When the Council issued the refusal to reassess, it suggested Mrs X and Y’s school should instead hold an annual review meeting. This was carried out immediately, in April 2024, but the Council but Mrs X said the Council did not issue an amended EHC Plan until December 2024.
2. Mrs X said the Council’s delays caused injustice in that Y’s educational provision did not meet his changed needs in the interim, and this caused distress, uncertainty, and frustration to all members of the family. The delays also frustrated Mrs X’s rights to appeal the refusal to reassess, and the content of the amended Plan, at Tribunal.

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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 future, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. 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)
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 discussed the complaint with Mrs X and considered the information she provided. I have also considered information provided by the Council, as well as relevant law, policy and guidance.
9. Mrs 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

Law, guidance and policy

EHC Plan 

10. 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. 

Content of an EHC Plan

11. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name or type of educational placement 

Reassessments of EHC Plans

12. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
13. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
14. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Reviewing EHC Plans

15. 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) 
16. 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.

Appeal rights

17. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment or reassessment.

What happened

18. The following is not intended to be a full account of everything that happened in this period, nor does it refer to all the documents I have considered. It is a summary of the key events and facts relevant to this complaint.
19. An EHC Plan for Y was issued in May 2023.
20. Mrs X requested a reassessment in late January 2024. She said that section B and section F of the EHC Plan were no longer correct, as they were from before Y had diagnoses of ASD, ADHD and Dyspraxia.
21. Mrs X submitted a complaint on 18 March about the lack of response to her reassessment request.
22. The Council refused the request for a reassessment on 20 March. It said it did not think Y’s needs had changed significantly following his recent diagnoses, and therefore a reassessment was not necessary. Instead, it recommended that Y’s school use the information gathered from relevant health professionals to inform his provision, and for an annual review of the EHC Plan to be held.
23. An annual review meeting was held on 24 April. The resultant annual review form included additional clinical advice including a report from Child and Adolescent Mental Health Services and a full neurodevelopmental assessment report dated December 2023.
24. The Council responded to Mrs X at stage 1 of its complaints procedure on 26 April, reiterating the refusal to reassess.
25. On 9 July, Mrs X submitted a new complaint about the lack of a decision to amend, maintain or discontinue the EHC Plan following the annual review meeting.
26. The Council responded to Mrs X at stage 2 of its complaints procedure on 29 August. It apologised for the delay in making a decision and said it would do so, and issue a draft Plan, by 20 September.
27. The draft EHC Plan was issued to Mrs X on 3 October.
28. Mrs X submitted her comments on the draft on 25 October, naming a special school as her parental preference.
29. The draft EHC Plan was issued to three schools for consultation on 29 October. The schools consulted included the mainstream primary school that Y was attending, and the special school of parental preference.
30. The mainstream primary school responded to the consultation that it did not agree to be named in section I of the Plan. The special school responded offering Y a place there.
31. The final amended EHC Plan was issued on 10 December, naming the school of parental preference.
32. Y started at the new special school on 3 February 2025.

Mrs X’s account

33. Mrs X told me that Y’s anxiety had peaked whilst waiting for his EHC Plan to be amended. His mainstream primary school was, despite its best efforts, unable to meet his special needs any longer. Y had some time off school and his anxiety had affected both his physical and mental health.
34. Mrs X said if the amended Plan had been issued on time, Y could have started at his new special school at the start of the academic year in September 2024. In terms of the impact on the family, Mrs X felt she had constantly had to chase the Council for responses to her communications, and her husband had been forced to leave his job because he had frequently been required to collect Y from the mainstream provision that wasn’t able to meet his needs.

Analysis

Delay in refusal to reassess

35. Mrs X made a request for Y’s needs to be reassessed on 30 January 2024. The Council should have decided whether or not to reassess by 14 February. The Council issued its decision to refuse the request on 20 March, which is five weeks late. I cannot comment on the substance of the decision, as Mrs X could have appealed that to the Tribunal, but the delay is fault. The fault caused the injustice of uncertainty and frustrated appeal rights.

Delay in issuing decision to amend

36. There was a lengthy delay in issuing the amendment decision and, as a result, the amended EHC Plan, following the annual review.
37. As the annual review meeting was held on 24 April 2024, the Council should have issued its decision to amend the EHC Plan, and the amendment notice, by 22 May. The final amended Plan should have been issued by 17 July. That the amendment notice wasn’t issued until 3 October, and the final amended Plan until 10 December, is a delay of five months, which is fault.
38. I find the avoidable delay was frustrating for Mrs X and put her to avoidable time and trouble in chasing an outcome and pursuing a complaint. The delay also caused ongoing uncertainty and distress for both Mrs X and Y. So, I find the fault caused them injustice. The anxiety that Y suffered during the period of the delay was a particularly significant injustice.
39. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. The evidence that informed the changes to sections B and F of the amended EHC Plan, including a full neurodevelopment assessment, was available to the Council immediately following the annual review meeting in April 2024. I therefore find, on the balance of probabilities, that, had the Council issued the amendment notice promptly in May, the special school that was ultimately named in section I could have been identified and consulted at that time, and named in the amended EHC Plan for issue in July. It follows that Y would likely have been able to start at his new school in September 2024. This would have been a more natural transition point, and would have meant that he was attending a provision which could meet his assessed needs some five months sooner than February 2025. Although Y continued to attend his mainstream primary in the interim, I nevertheless find that the delay in accessing a suitable setting caused injustice to Y in terms of lost educational provision between September 2024 and February 2025.
40. I have decided not to make a recommendation that the Council should review how it deals with annual reviews of EHC Plans (and implement actions to ensure that statutory timescales are met when arranging reviews and finalising amended EHC Plans). That is because we have made similar recommendations to the Council in relation to several recent cases, and issued a public report. I do not consider that there would be any additional value in repeating this recommendation.

Complaint handling

41. Mrs X’s March 2024 complaint was about the Council’s failure to respond to her reassessment request. The formal complaint response was sent 10 days late, which is fault, but this didn’t cause an injustice as Mrs X was aware of the Council’s refusal to reassess Y by that time. She did not pursue this complaint to stage 2.
42. Mrs X’s July 2024 complaint was about the delay in receiving the amendment decision. This was a separate matter, and so should have been responded to at stage 1. Instead, the Council responded at stage 2, which is fault. The fault did not cause Mrs X significant injustice as she was then able to escalate her complaint to us.

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Action

43. Within one month of the final decision, the Council should make Mrs X payments of:
• £100 in recognition of the fact that Mrs X’s right of appeal to the Tribunal, regarding the refusal to reassess, was delayed by five weeks because of the Council’s fault;
• £500 in recognition of the avoidable distress Mrs X and Y experienced because of the Council’s faults in delaying finalising the amended EHC Plan for Y. I have considered the LGSCO’s Guidance on Remedies when making this recommendation, which defines distress as stress, uncertainty, frustration and loss of opportunity.
• £1200, for Y’s benefit, for the impact on him of the delay in accessing appropriate educational provision between September 2024 and February 2025. This amount reflects the fact that Y continued to receive educational provision at his mainstream school during that period. Although that school could no longer meet all of Y’s assessed needs, it was recognised as being a supportive and adaptive educational environment.
44. These payments are symbolic amounts in line with our published guidance on remedies.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed to implement the recommended actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman