Summary: Ms X complained the Council caused delays in the Education Health and Care Needs assessment and planning for her child, C. This has caused C to miss education and distress to C and the whole family. The Council is at fault and has agreed to a package of remedies.

The complaint

1. Ms X complained about delays in the Education, Health and Care (EHC) annual review process for her child, C and poor communication. She says the delays have affected C’s education, mental health and caused the family distress.
2. She wants the Council to fund extra tutoring because of lost provision, provide a financial remedy for the distress caused and improve its service.

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The Ombudsman’s role and powers

3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. 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)

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What I have and have not investigated

6. I have only investigated the delay in the Education, Health and Care (EHC) assessment and planning process. I have not investigated the contents of the EHC Plan. If Ms X is not happy with this, she has a right of appeal to the Special Education Needs Tribunal.
7. I have investigated the period ending with the date the Council issued the final EHC Plan in September 2024. I have not considered anything that has happened since this time. If Ms X has any further complaints about matters arising from this date, she should bring a new complaint to the Council in the first instance.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

What I found

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. 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.
14. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

What happened

16. I have summarised below the key events; this is not intended to be a detailed account.
17. C attended mainstream school and received support from an EHC Plan. The Council held an Annual Review in January 2023 and issued a new Plan in February 2023.
18. Ms X told me C’s attendance at secondary school was 100%.
19. In September 2023, C moved from the secondary school to the sixth form.
20. Ms X told me C lost her support when she moved to sixth form, she could not cope and her attendance dropped.
21. The sixth form called an Emergency Annual Review. This took place in November 2023. The sixth form asked the Council for increased funding to support C. The Council agreed.
22. The Council told me the sixth form put extra support in place for C from when she started to struggle, this was before it received increased funding. It provided a teaching assistant that met C at the car and stayed with her as a chaperone throughout the day.
23. C had two maths tutors at sixth form. She enjoyed and engaged with one tutor but refused to attend classes with the other tutor. Ms X paid for a private maths tutor for her daughter during this time, to make up for this.
24. In March 2024, the Council told Ms X the EHC Plan Coordinator was leaving the role and it introduced her to a new Coordinator. The new Coordinator said they would issue the Final EHC Plan.
25. The Council issued the proposed amended EHC Plan in early March 2024. The Plan increased the funding. Once the sixth form received the new funding, it funded the maths tutoring provision that Ms X had been paying for.
26. Ms X told me once the sixth form received the increase in funding, it provided increased support and paid for an extra maths tutor. Ms X told me the situation is much better since the sixth form received the extra funding. She said this is something that should have been in place much sooner.
27. The Council issued the final version of the EHC Plan in September 2024.
28. The Council confirmed it backdated the increased funding for C’s support to the date the sixth form requested at the annual review. This means the sixth form received funding for the period from November 2023 onwards.
29. The Council held a further annual review in the middle of October 2024. This is beyond the timeframe of my investigation.

The complaint

30. Ms X complained to the Council. The Council issued a response. It apologised for the delay sending Ms X the annual review paperwork and delay issuing the proposed amended EHC plan, which fell outside the statutory timeframe. It also accepted communication from the Council was below standard and said there was a miscommunication with the new Coordinator.
31. The Council offered Ms X a financial remedy of £600. This was £400 to recognise the delays in the annual review process and failing to meet statutory deadlines, £100 for delay issuing the complaint response and £100 for distress bringing the complaint.
32. Ms X complained to the Ombudsman in December 2024. She said the Council failed to issue an amended EHC Plan and failed to communicate which has caused stress and frustration for the whole family. It also caused D to drop an A-Level because she was not receiving the right support and Ms X has funded a tutor to fill in the gaps of her education. Ms X wanted the Council to issue the updated EHC Plan and put measures in place to stop this happening in the future.

Analysis

33. The Emergency Annual Review took place in late November 2023. The Council should have issued the updated EHC Plan within 12 weeks of the review, around the middle of February 2024. The Council issued the final EHC Plan in late September. This is a ten-month delay, this is fault. Considering the plan was following an Emergency Annual Review, I would consider C’s case to be a high priority. The lack of a plan caused distress to Ms X and C and the family as they did not know what extra support C would receive until they had seen the updated Plan. The Council accepted this was fault in its complaint response and offered a remedy of £400. This amount is insufficient to remedy the distress caused to C over a period of ten months particularly during the transitional phase from secondary school to sixth form. I have made an appropriate recommendation below.
34. While it was necessary to hold an Emergency Annual Review which resulted in a request for an increase in funding, the sixth form provided some support to C during this time. Classes were available to C and the sixth form provided a teaching assistant to support her on site; this was before the Council provided the extra funding. Ms X told me there was an improvement in the support C received once the funding was received by the sixth form, including paying for the maths tuition which she had paid for until that time.
35. While the Council was at fault for delay providing the increased funding to C’s sixth form, it has now backdated this funding to the correct date. The sixth form did not pay for the additional tutoring for C until the Council provided the funding; Ms X instead paid for this. Since the sixth form has now received backdated funds from the Council for C’s tutoring, Ms X would need to seek reimbursement from the sixth form for any tutoring she arranged in the interim from this backdated funding. This is a matter Ms X will need to discuss with the sixth form. The action of schools and sixth forms are not within the Ombudsman’s jurisdiction.

Action already taken by the Council

36. The Council issued the updated EHC Plan and provided the extra funding to the sixth form. The Council backdated the funding to the date of the Annual Review. This limits any further injustice to C.
37. The Council has begun to carry out measures outlined in its SEND improvement plan. This has included expanding the workforce and the Council has recruited 138 new staff members into EHC Planning services. It has also addressed issues within communication. I do not consider I need to make any further recommendations for service improvements.
38. The Council has apologised and offered Ms X a financial remedy of £600. This is comprised of £400 for failing to meet statutory deadlines, £100 for delay issuing the complaint response and £100 for distress bringing the complaint.

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Action

39. Within four weeks of the Final Decision, the Council agreed to:
• Pay Ms X £800 for the distress caused by failing to meet statutory deadlines. (This replaces the payment of £400 as offered by the Council in its complaint response).
40. Pay Ms X the remedy the Council offered in its original complaint response of £100 for delay issuing the complaint response and £100 for distress bringing the complaint remain valid.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman