Summary: We found fault on Mrs Y’s complaint about the Council failing to follow statutory timescales with her son’s Education, Health and Care plan as well as its own timescales with its complaints procedure. These failings caused her injustice as it delayed her ability to appeal as well as causing some frustration. The Council agreed to send a written apology, pay £200 for failing to follow statutory timescales, and review why these failures happened along with the delay with it responding to her formal complaint.

The complaint

1. Mrs Y complains about the Council:
1. giving her and her son’s school the wrong Education, Health and Care plan following a tribunal hearing in November 2022;
2. failing to follow timescales for reviews of the plan;
3. ignoring her views; and
4. failing to investigate her complaint.
2. As a result, her son did not receive the provision he should have received, she suffered financially as she paid privately for a speech and language assessment for example, all of which has caused a great deal of stress and frustration.

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The Ombudsman’s role and powers

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. 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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. When considering complaints, we make findings based on the balance of probabilities. This means we look at the relevant available evidence and decide what was more likely to have happened.
9. 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

10. I have not investigated any complaint Mrs Y had about:

• her son failing to receive education before January 2023 when he returned to school. This was because she complained to us in October 2024. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) She needed to have complained to us about it by January 2024;
• actions of the school as these are outside of our jurisdiction. This means we cannot investigate any complaint about: the school writing reports for the annual review based on 2021 documents; the conduct of the annual reviews; any failure by the school to make provision because it followed the incorrect EHC plan; and.
• issues she could raise during an appeal to the Tribunal. This includes her complaints about the Council sending two schools the wrong EHC plan and educational psychologist’s reports. Mrs Y’s current appeal to the Tribunal is about the named placement.

11. I investigated her complaint about:

• the Council sending the school the 2021 Education, Health and Care plan in November 2022. This was because she only became aware of it in October 2023. She complained to us within 12 months of becoming aware of it; and
• the Council up to October 2024 only, which is when she complained to us. This means any complaint she may have about the Council after this date was not investigated.

Education, Health and Care Plans

12. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
13. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the Tribunal can do this.

Reviews of EHC Plans

14. 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.
15. 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)
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) EHC 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.
17. The Council must then issue any final amended EHC plan within eight weeks of the amendment notice. This means a final EHC plan must be issued within twelve weeks of the review meeting. (R (L, M and P) v Devon County Council)

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How I considered this complaint

18. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I also considered relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

19. Mrs Y’s son, Z, was issued with an EHC plan (plan 1) in 2021 which she appealed to the SEND Tribunal. In 2022, after the Tribunal decision, two versions of his final amended EHC plan were issued. One was issued on 20 December, and the other two days later (plan 2). The Council apologised for sending two different versions of the EHC plan.
20. Under stage 1 of its complaints procedure, the Council confirmed plan 2 was sent to the school but due to the passage of time, it could not verify if this was actually sent. It noted no evidence of either the school or Mrs Y complaining about receiving plan 1 at the time.
21. Mrs Y claimed:

• the school told her it never received plan 2;

I have seen an email from the Council to the school enclosing plan 2 following the appeal. Plan 2, dated 20 December, was attached to the email. The Council did not accept it wrongly re-issued plan 1 after the appeal. It noted the school had a copy of plan 1 as it was consulted on it during the appeal; and

• she never received plan 2: I have seen emails from December 2022 between her and the Council following the appeal. These showed the Council sent her plan 2 after the appeal and in response, she pointed out errors in it and raised a query.

22. Z returned to school in January 2023 after he could not attend for several months because of an anxiety school condition.
23. In October, the school carried out an annual review. During it, the school claimed the Council had not sent it plan 2. She believed this explained why Z struggled at school as he was not receiving provision he needed because the school worked to plan 1.
24. The following month, Mrs Y complained to the Council about the transition review taking place with the annual review. The Council told her it was expected a phased transfer review would happen in the summer term. As Z would have his review in the same academic year, many schools do a ‘light touch’ review to confirm changes made earlier in the school year were still correct. It was also used to discuss parental preference for secondary school.
25. Mrs Y got an independent speech and language therapy (SALT) report at a cost of £1,000 to get an objective view of Z’s needs. The Council explained this was unnecessary as the school had a speech and language therapist who worked closely and regularly with Z. The school’s therapist provided updates and reports. The Council also had its own SALT reports.
26. The Council explained this annual review was done by the school. As such, any complaint she has about its handling was against the school, not the Council. It had not received any paperwork following it and had to contact the school. The school confirmed the annual review included a transition review. As well as reviewing the EHC plan, the school also focused on the plan for September. The Council also confirmed Mrs Y disagreed with the minutes and asked the school not to send any paperwork to the Council. I have seen a copy of an email from the school to the Council explaining this. The school complied with her request not to send any paperwork to the Council.
27. The annual review was rescheduled to May 2024 (the review meeting), again at Mrs Y’s request. This was why it was not held within 12 months of December 2022.
28. Mrs Y was unhappy as she said she waited more than six weeks for the Council to tell her whether it intended to amend the EHC plan following the review meeting. Mrs Y claimed Z had no annual review in Year 5, but the Council confirmed the May review meeting was for Year 5. She complained there were no draft amendments set out in the annual review outcome letter.
29. It told Mrs Y in June of its intention to make amendments to Z’s EHC plan and apologised for the delay. The notice of proposed changes to the EHC plan was sent on 21 June. I have seen Mrs Y’s acknowledgement of the Amendment Notice (the Notice).
30. The proposed amended plan was issued early in July, within two weeks of the outcome letter. It accepted the proposed amendments were not sent at the same time of the outcome letter but, considered this was sufficient and did not unduly delay the process.
31. Mrs Y sent her views on the proposed amended plan. The Council reviewed the proposed amended plan and at the end of July, sent version two of the proposed plan.
32. In August, Mrs Y sent further emails with proposed changes and details about what she disagreed with of the proposed plan. An officer replied saying it was difficult to identify what she wanted changing and asked for another copy with her annotations in a different colour.
33. The same month, the Council sent her its stage 2 response and apologised for the delay sending it. It considered it already addressed her complaints about the wrong plan being sent to the school, along with her decision to get her own SALT report. The Council also explained it had to start the process of amendment ‘without delay’ when an EHC plan needed amending. It apologised for the delay with her receiving the outcome letter and proposed amendments, along with the delay in dealing with her complaint.
34. At the end of the month, the Council told her it was difficult to work through what she sent and while changes would be made, it would be issued by February 2025 because of phase transfer deadlines.
35. In September, the Council contacted Mrs Y saying it would be helpful if she could annotate the outcomes on the EHC plan she did not agree with, and what she was proposing. A few days later, it issued the third version of the proposed amended plan. The Council had also told her as her son was a phase transfer student, it would not finalise his plan until it named his secondary setting which would be by 15 February 2025.
36. Two weeks later, Mrs Y sent further comments as she disagreed with parts of the third version of the proposed plan. The Council issued the final amended plan the following month.
37. The Council confirmed the proposed amended plan was issued within the 12 week period for reviews.

My findings

Complaint a): wrong EHC plan

38. On balance, I am satisfied the Council sent the school plan 2 in December 2023 following the appeal. I reached this conclusion because the evidence showed this was sent to the school by the Council. I found no fault on this complaint.
39. I am also satisfied the Council sent Mrs Y plan 2 in December. I reached this conclusion because I have seen emails between her and the Council about it at the time. I found no fault on this complaint.

Complaint b): failing to follow timescales

40. The annual review meeting was held on 24 May 2024. When the Council decided to amend the EHC plan, it had to tell Mrs Y of the decision and what the proposed changes were within 4 weeks of the review meeting by way of an Amendment Notice (the Notice). The four week deadline was 21 June.
41. I am satisfied the Council sent her notice on 21 June. While I have not seen a copy of the actual Notice, I have seen Mrs Y’s email acknowledging its receipt.
42. On balance, I am not satisfied the Notice to Mrs Y contained the amendments the Council intended to make to the EHC plan. I say this because I saw the complaint she made shortly after receiving the decision. This said she had not received any information about intended amendments. I consider this was fault.
43. When considering the injustice this caused her, I took account of the fact the Council sent her a proposed amended plan in early July which alerted her to intended amendments. I have seen the response to this proposed amended plan she sent in mid-July. I am satisfied the initial failure caused her an injustice as she was unaware of what amendments the Council intended to make. It also caused her some frustration. I am also satisfied the injustice lasted about ten days until she received the first version of the proposed amended plan.
44. The Council had to issue a final amended plan within eight weeks of the Notice (16 August). Overall, this meant the Council had to issue the final plan within 12 weeks of the review meeting. The Council issued the proposed amended EHC plan on 5 July, and then two later versions after communication with Mrs Y. It issued the final EHC plan on 4 October.
45. While I acknowledge the attempts the Council made to accommodate the responses from Mrs Y to the drafts it sent her, I am satisfied the Council failed to issue the final amended plan within the statutory deadline. The Council delayed issuing the final EHC plan by about two months. This was fault.
46. I am also satisfied this caused her some injustice as it delayed her ability to use her right of appeal. Until the Council issued the final EHC plan, Mrs Y had no formal means to challenge its contents if she disagreed with what it said. She could only appeal to the Tribunal after the Council issued the final EHC plan. When the Council issued the final EHC plan, Mrs Y exercised her right of appeal.

Complaint c): ignored views

47. I considered Mrs Y’s complaint about the Council ignoring her claims such as it sending the school plan 1 following the appeal instead of plan 2, as well as it blaming her for telling the school not to send the documents on to it following the review. She was unhappy with the school arguing Z had only mild/moderate language problems while the secondary school was saying there were severe problems.
48. I found no fault on this complaint about the Council failing to take her views into account. I am satisfied the Council took them into account. This was because of records showed, for example, the Council responded in November 2023 to her about her concerns the review included a transition review. It also explained the handling of this review was the responsibility of the school, not the Council. The Council also explained the timescales for reviews and why one was not done within 12 months of the issuing of the final amended plan.

Complaint d): complaint procedure

49. Mrs Y was unhappy with the whole complaint process and the time taken to progress through it.
50. I note Mrs Y made the complaints about the following:

• 24 May 2024: her receiving plan 1 after the tribunal hearing;
• 5 June: the annual review process. The Council wrote to her several days later saying it had started a stage 1 response to her previous complaint. It added her new complaint to the previous one;
• 19 June: the annual review process;
• 20 June: not receiving the written decision after the May annual review; and
• 24 June: not receiving draft amendments the Council intended to make.

51. On 19 June, the Council sent her its stage 1 response. This was in response to her complaint dated 24 May.
52. On 4 July, the Council told her it had merged the complaints received on 20 and 24 June with her original one which it would now deal with under stage 2. It explained it needed more time to respond due to the complex nature of her complaints and workloads. It aimed to do so by 14 August.
53. On 5 August, the Council sent her its stage 2 response. The Council accepted this stage of the complaint process took longer than anticipated. It apologised for the extensions made to the complaint deadline.
54. The Council’s complaints process stated:

• Stage 1: it would provide a written response within twenty working days, but where possible, would try to respond within ten working days; and
• Stage 2: it aimed to provide a response within twenty working days. If this was not possible, it would provide a new timescale.

55. I am satisfied there was some delay with the complaint process, which the Council accepted. The stage 1 response was a few days over the timeframe and its stage 2 response to her initial complaint was about 10 working days late. This caused her some frustration.

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Action

56. I considered our guidance on remedies. I also took account of the apologies the Council already gave Mrs Y during the complaints process.
57. The Council agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for failing to: follow the statutory timescales for sending her the intended amendments; issue the final plan within the statutory timescales.
2. Pay £200 to Mrs Y for the failure to follow the statutory timescales during the EHC plan process.
3. Review why there was a failure to send the intended amendments to her son’s EHC plan within the statutory timescales and act to ensure this is not repeated on future cases.
4. Review why there were delays issuing the final plan and act to ensure this is not repeated on future cases.
5. Review why her complaints were delayed and act to ensure these are not repeated on future complaints.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I found the following on Mrs Y’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman