Summary: Mrs X complained about delay in the annual review process for her daughter’s Education Health and Care Plan. We found the Council’s delay was fault. The Council agreed to apologise and make a symbolic payment to acknowledge the distress caused to Mrs X and her daughter and the additional frustration caused by the delayed right of appeal.

The complaint

1. The complainant, Mrs X, complains about delay in the annual review process for her daughter’s Education Health and Care (EHC) Plan. Mrs X says this frustrated her right of appeal and delayed her daughter receiving a plan that properly reflected her needs.

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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. 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.
4. 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)
5. 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.
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 considered evidence provided by Mrs X and 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

Relevant law and guidance

Education, Health, and Care (EHC) plans

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.

Reviewing EHC Plans

11. 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) 
12. 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.
13. 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.

Application of the Ombudsman’s jurisdiction

14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

What happened

16. The following is a summary of key events. It does not include everything that happened.
17. Mrs X’s daughter (B) had an EHC plan dated 31 May 2023.
18. The annual review meeting for B’s EHC plan was held on 2 February 2024.
19. Mrs X complained to the Council on 3 March about the delay in receiving the outcome from the above review meeting. Mrs X sent a further complaint to the Council on 24 March as she had not received a reply.
20. A summary from the above annual review meeting was sent to Mrs X on 27 March with the recommendation that B’s EHC plan should be amended.
21. Mrs X complained to the Council on 16 April, 21 April and 22 April about the ongoing delay.
22. The Council responded to Mrs X’s complaint on 10 May. The Council apologised for breaching the annual review timescales and for not keeping her informed. The Council confirmed it was to send a final amended EHC plan shortly.
23. Mrs X remained unhappy with the Council’s response and escalated the matter to Stage 2 of its complaint procedure on 17 May. The Council responded on 17 June and apologised for the lack of contact and further delay. This acknowledged the delay was unacceptable and confirmed an updated plan would be provided by the end of June.
24. The Council issued an amended draft plan on 19 July. The Council has explained that the relevant officer was absent from work between the end of March and June and the case was not reallocated due to work capacity issues. A virtual discussion took place including with Mrs X on 29 July about the proposed changes.
25. The Council issued further draft plans during the period July to October.
26. Mrs X complained to the Ombudsman in October.
27. The final amended EHC plan was issued to Mrs X on 18 November 2024.
28. Mrs X has appealed to the Tribunal.

Analysis

29. The Council failed to complete the annual review within statutory time limits. The Council should have decided whether to amend or cease the Plan within four weeks of the review meeting. As the eventual decision was to amend the Plan, this process should have been completed within twelve weeks of the review meeting, so by the end of April 2024. The final plan was not issued until 18 November 2024 a delay of over six months. This is fault which will have caused avoidable uncertainty and distress and the frustration of a delayed right of appeal. It has also caused B the lost opportunity of having up-to-date suitable educational provision detailed in their EHC plan.
30. Mrs X highlighted two particular impacts on B from the delay. Firstly, a significant delay in her daughter having access to a learning support assistant (PA). In addition, the delay in agreeing nearer equine therapy provision led to a deterioration in B’s condition such that she could no longer access the therapy.
31. The Council has acknowledged the delay in issuing a final amended plan for B and apologised. The Council has explained this was partly due to a lack of capacity within its SEND service to respond to all Annual Reviews within the statutory timescales. The Council has confirmed it has introduced a recovery programme including the recruitment of additional staff to improve its ability to respond to annual reviews within statutory timescales and improve communication with families and a rolling programme of staff training. The Council also acknowledges that amendments were made during the annual review process with working documents being issued to obtain consensus at the expense of statutory timescales. The Council has revisited its working practices in this area.
32. The Council has further acknowledged that if the final EHC plan had been issued within the statutory timescale the commissioning of a learning support assistant (PA) to support B in community access and to learn skills aimed at her interest and physical activities (10 hours weekly) would have begun in May 2024. I am satisfied this loss of provision has caused B an injustice for the period May 2024 to November 2024 (when the appeal right became available).
33. In relation to the delay in changing the equine therapy provider, the picture is less clear. The Council notes the medical advice received at the time of the review about B’s ability to go horse riding and that any new provider needed to be on its approved list for quality assurance or undergo the Council’s quality assurance process. On balance, I cannot say B would have been able to access a closer equine therapy provider but for the avoidable delay. I do consider Mrs X will have suffered avoidable uncertainty about this.
34. Any dispute about the content of the EHC plan is for the SEND Tribunal and is caught by the restriction outlined at paragraphs 4 and 5 above.
35. The Council has already agreed to undertake work on improving the EHC plan process after the Ombudsman upheld other cases. For this reason, I have not made further service improvement recommendations here as we will monitor the impact of these changes through our complaints.

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Action

36. The Council has agreed within one month of my final decision to:
1. apologise to Mrs X for the fault identified in this decision statement;
2. pay Mrs X £600 to acknowledge the avoidable distress, uncertainty and frustration caused by the delay in the annual review process;
3. pay Mrs X £1,000 to acknowledge the loss of B’s special educational provision for the period May 2024 to November 2024.
37. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman