Summary: We found fault by the Council on Mrs Y’s complaint about its failings when dealing with her request for her son, Z, to have an Education, Health and Care plan. It failed to follow statutory timescales for issuing draft and final plans, failed to do what it agreed at mediation, and failed to issue Amendment Notices on time. There was little communication with her after mediation and it failed to follow its own complaints procedure. The faults caused lost provision as well as distress to Mrs Y. The Council agreed to send her an apology, pay £1,000 for missed provision, £500 for her distress, review procedures, and send relevant staff a reminder about correspondence.

The complaint

1. Mrs Y complains about the Council failing, when dealing with her request for her son, Z, to have an Education, Health and Care plan, to follow statutory timescales for:
1. completing the Education, Health and Care needs assessment;
2. issuing the plan;
3. issuing an amended plan;
4. holding an annual review; and
5. providing a decision following the November 2023 review.
2. As a result, this caused them all a great deal of stress, meant her son lost provision, her right of appeal was delayed, and she suffered financially.

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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. 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. 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

7. I have investigated this complaint:

• from February 2023. As she complained to us in October 2024, we would usually say any complaint about the Council’s actions before October 2023 was late. This is because 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). I decided to exercise discretion to investigate from February 2023 because: in October, a referral for mediation was made; the complaint procedure ended in October 2024; her son has health problems.
• to October 2024. This is because this was when she received the Council’s stage 2 response to her complaint request. This means I cannot investigate any complaint she may have about the Council’s actions after this date.

8. I have not investigated any complaint she may have about the Education, Health and Care plan issued, or its provisions. This was because she had the right of appeal to a Tribunal after mediation ended in November 2023. I saw no good reason why I should exercise discretion to investigate any such complaint.

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How I considered this complaint

9. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, and the Council’s response to my enquiries. 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

Law and guidance

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. 

11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent, or young person, information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to issue an EHC plan, the whole process from the point when an assessment was requested, until the final EHC plan was issued, must take no more than 20 weeks (unless certain specific circumstances apply).

12. 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.
13. 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)
14. 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 (Amendment 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.
15. 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 12 weeks of the review meeting. (R (L, M and P) v Devon County Council)
16. The Code states there are ‘exceptional circumstances’ where it may not be reasonable to expect councils to comply with the 20 week time limit. This would include: appointments missed by the child; the child is absent from the area for a period of at least 4 weeks; exceptional personal circumstances affecting the child or parents; the closure of the educational institution for at least four weeks which may delay the submission of information from the school.

What happened

2023

17. The Council received an EHC needs assessment referral in January for Mrs Y’s son, Z. In March, it agreed to do the assessment.
18. In June, it issued the draft EHC plan and issued the final in August. The Council accepted it took more than 20 weeks to complete the statutory process and so breached its statutory duty. The Council explained the delay was with getting advice back from the Child and Adolescent Mental Health Service (CAMHS) who it consulted.
19. When the Council issued the final EHC plan, it told Mrs Y of her right to ask for mediation or to ask for a certificate from the mediation service to pursue a Tribunal appeal. She needed the certificate to appeal.
20. There was a mediation referral in October and mediation took place in November. The ‘Outcomes from Mediation’ document set out what had to be done and by when. This, and the mediation certificate, was sent to Mrs Y. The mediation certificate now meant she had rights of appeal. Under the agreement reached at mediation, the Council would tell Mrs Y the outcome of the panel consideration of the review notes by way of a letter of notification. The Council accepted this was not sent.
21. The Council confirmed there was an annual review at Z’s school in December. It also confirmed it was responsible for the annual review as Z attended a mainstream school. It asked the school to arrange and hold the meetings on its behalf.
22. The Council accepted it should have issued her with fresh appeal rights within 4 weeks of the annual review. It also accepted it failed to issue an Amendment Notice within 4 weeks or an amended plan within a further eight weeks.
23. The Council accepted:

• following mediation, there was very little communication by officers in response to Mrs Y’s communication for which it apologised;
• there was some uncertainty caused by the agreement made at mediation because of a lack of communication;
• it failed to keep the agreement reached at mediation for which it apologised; and
• there were failures in the casework and management of Z’s case for which it apologised but stated there was no delay holding Z’s annual reviews.

2024

24. Mrs Y wanted an early review as she wished to change Z’s educational setting. The school arranged the early review for July.
25. Mrs Y also complained there was no decision from the Council following the July annual review. She claimed she received no notification of its decision or a draft of the proposed amendments, if it had decided to make them.
26. The Council confirmed she received the proposed amendments issued to her. It accepted this was ten weeks overdue. It issued the final amended EHC plan four weeks after the Amendment Notice.
27. In August, the Council responded to her stage 1 complaint. Mrs Y was unhappy the Council failed to meet its own 20 working days timeframe for stage 1 complaints under its complaints procedure. The response was sent 19 days after the deadline. The Council apologised for this delay. She asked for her complaint to go to stage 2 of its complaints process.
28. In October, the Council also told Mrs Y it received a copy of Z’s annual review meeting documents which recommended a change to his EHC plan. It sent her a copy of the plan showing proposed amendments. She was invited to tell the Council whether she accepted them or not. The Council accepted this was ten weeks overdue.
29. The same month, the Council responded to her stage 2 request and apologised for the delay. It rejected her request because under its complaints procedure, she failed to provide reasons for wanting to proceed further. The Council signposted her to the Ombudsman instead.
30. In November, the Council issued the final amended EHC plan.

My findings

31. I found the following on this complaint:
1. The Council had to make a decision within six weeks of receiving the request asking it to carry out the EHC needs assessment. The Council received the request on 25 January 2023. It told Mrs Y of its decision to carry out an assessment on 21 February. There was no fault with this part of the process as the decision was made and issued within the six-week period.
2. From receiving the request, the Council had a maximum of 20 weeks to issue a final EHC plan.
3. The final EHC plan was issued on 14 August. It should have been issued within the 20-week deadline which was 17 May. Instead, it was issued just over 12 weeks later. While I appreciate the Council chased CAMHS, for example, for its response, the statutory deadline was not met and the delay with CAMHS was not one of the exceptional circumstances set out in the Code.
4. As the Council issued Z’s EHC plan in August 2023, this meant an annual review had to be done within 12 months of this date. This was because councils must review EHC plans at least annually. Following mediation, the Council carried out a review of his plan in December.
5. The Council failed to provide Mrs Y with the outcome of the panel by way of a Letter of Notification by the deadline agreed at mediation of 29 December 2023. The Council accepted it failed to keep to the agreement made at mediation.
6. The Council accepted it failed to issue an Amendment Notice telling Mrs Y of its intention to amend the EHC plan within four weeks of this review and its decision to make amendments. As the annual review was held on 11 December 2023, the deadline for this four-week period was 8 January 2024.
7. The Council also had eight weeks from the Amendment Notice to issue the final EHC plan. Put simply, it had to issue the final EHC plan within 12 weeks of the annual review which was by 4 March 2024. It was issued on 14 June, about 13 weeks later.
8. As the Council also accepted, there was little communication with Mrs Y following mediation.
9. The Council had to hold the next annual review by December 2024. It held the next annual review on 11 July, which was early at Mrs Y’s request.
10. Following this, the Amendment Notice should have been sent to Mrs Y by 8 August. It sent to her the proposed amendments on 16 October. This was delayed by ten weeks. It had to issue the final EHC plan within 8 weeks of the Amendment Notice. Again, put simply it had to issue the final within 12 weeks of the review meeting. This deadline was 3 October. It was issued on 11 November, nearly six weeks after it.
11. I am also satisfied there was fault in the complaints process. The Council missed its own deadline for sending its stage 1 response of 20 working days as it was sent 19 days after it had passed. It also delayed responding to her request to go to stage 2.
12. I am satisfied the identified fault caused Mrs Y and Z an injustice. It caused her distress (anxiety and frustration) along with the time and trouble she spent chasing the Council about the delays. It also caused some uncertainty. She also had her right to appeal to the Tribunal delayed. Her son missed some provision because of the delay in issuing the final EHC plan in 2023 and 2024.

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Action

32. I considered our guidance on remedies as well as the apologies the Council has already made to Mrs Y.
33. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send a written apology to Mrs Y for failing to: follow the statutory timescales for issuing Amendment Notices, appeal rights, and draft and final EHC plans; communicate properly with her.
2. Pay £500 for the injustice caused to Mrs Y because of the fault found.
3. Pay £1,000 for about a term’s missed provision because of the delays with the issuing of the EHC plans.
4. Review procedures to ensure the delays with missed deadlines cannot be repeated on future cases involving applications for EHC plans and annual reviews.
5. Review why there was a failure to keep to the agreement reached at mediation and act to ensure future agreements are kept.
6. Remind all relevant staff of the importance of responding to correspondence from parents/carers about the EHC process.
7. Review why the complaint procedure was not followed at stage 1 and why there was a delay responding to her stage 2 request.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I found fault causing injustice on Mrs Y complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman