Summary: Mr X complained the Council delayed in updating his son’s Education, Health and Care Plan following an annual review. Mr X also complains his son did not receive support at school and relevant assessments have not been completed. We find the Council at fault for a delay in issuing an amended, final Education, Health and Care Plan. This caused Mr X distress, frustration and uncertainty. The Council has agreed to apologise and pay Mr X a symbolic payment to remedy the injustice caused by the faults identified.

The complaint

1. Mr X complained the Council delayed in updating his son, Y’s, Education, Health and Care Plan following an annual review. Mr X also complains his son did not receive support at school and relevant assessments have not been completed. Mr X says this has adversely impacted Y’s educational experience and created a false narrative around Y’s needs. Mr X told us he had to remove Y from school and move him to live with his sister where he now receives home tuition. Mr X would like the Council to acknowledge the faults in handling Y’s Education, Health and Care Plan and the impact this has caused.

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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. 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. 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

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr 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

Legal and administrative background

Education Health and Care Plan

7. 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.
8. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135). 
9. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Annual review process 

10. 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. When the Plan is being amended, the process is only complete when the council issues an amended final Plan.
11. 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 Plan is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. 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.

What happened

13. The Council met with Mr X at the end of October 2023 to discuss Y’s EHC Plan. The Council agreed Y’s Plan needed updating to include information from new professional reports. The Council told Mr X it would ask Y’s school to arrange an early annual review. The Council also agreed to send out an amended draft Plan ahead of the annual review.
14. The Council issued an amended draft Plan at the beginning of December 2023. The amendments made were based on the new professional reports.
15. An early annual review took place in mid-December 2023. The information provided by the school said Y was making progress across the curriculum and no concerns were raised about the suitability of the school, Y’s attendance or access to provision. As part of the annual review, it was agreed the Council would provide the school with information on potential dyslexia support for Y, however I have not seen any evidence this support was explored.
16. In accordance with statutory timeframes the Council should have issued its amendment notice by mid-January and it should have issued a final amended EHC Plan by the beginning of March 2024.
17. Mr X submitted a complaint to the Council. The Council responded and acknowledged it had failed to communicate with Mr X following the December 2023 annual review and it had failed to complete the annual review process. In recognition of these faults, the Council met with Mr X at the end of October 2024 to discuss the changes which were needed to update Y’s EHC Plan.
18. The Council issued a final amended Plan in November 2024. This is a delay of approximately eight months.
19. Y moved out of the local area at the end of November 2024. The Council transferred Y’s Plan to his new local authority at the end of November 2024.

My Findings

20. There was an approximately eight month delay in the Council issuing a final amended EHC Plan following the annual review in December 2023. This is fault which caused Y and Mr X distress, frustration and uncertainty.
21. There was a breakdown in the Council’s communication with Mr X following the December 2023 annual review. This was not improved until Mr X submitted a complaint. This is fault which caused Mr X distress, frustration and uncertainty.
22. There is no evidence the school raised concerns about Y’s attendance or access to education between December 2023 and November 2024. Therefore, there is no fault in the Council’s actions in relation to its section 42 duty.
23. I have seen no evidence the Council agreed to complete further assessments as part of the annual review process. The Council agreed to provide the school with information about a local dyslexia support programme however I have seen no evidence this was explored following the annual review meeting. This is fault which caused Mr X frustration and uncertainty.

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Action

24. Within one month of the final decision the Council will:
• Apologise to Mr X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Make a symbolic payment of £800 in recognition of the injustice caused to Y and Mr X by the Council’s failure to amend and issue a final EHC Plan following the annual review in December 2023. This is calculated at approximately £100 per month of delay.
• Make a further symbolic payment of £300 to Mr X in recognition of the injustice caused by the breakdown in communication and the time and trouble Mr X spent pursuing his complaint.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman