Summary: The Council delayed issuing an amendment notice for Mrs X’s child, Y’s, Education, Health and Care Plan following an annual review. This caused Mrs X uncertainty and frustration, but Y did not miss out on any SEN provision. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y’s, amended Education, Health and Care (EHC) Plan following an annual review in January 2024 and failed to communicate with her during the process. She says this delayed Y’s access to the provision in the plan, causing her stress and anxiety. She wants the Council to apologise and review its processes.

Back to top

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).

Back to top

How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care (EHC) Plans

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 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) 
9. 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.

Background

10. The Council issued an EHC Plan for Mrs X’s child, Y, in June 2023. The plan named a mainstream school for Y and a specialist school from September 2023. Y started at the specialist school, as planned, in September 2023.

What happened

11. Y’s school carried out an annual review of Y’s EHC Plan on 26 January 2024. The review noted Y’s transition to the specialist school had gone well but Y’s EHC Plan needed minor amendments.
12. The Council wrote to Mrs X in February 2024. It said it intended to amend Y’s EHC Plan, and it would contact Mrs X again with an amendment notice when it had considered the proposed changes. Over the next six months Mrs X chased the Council for an update. The Council did not reply. Mrs X complained to the Council in September 2024. She said she had not received a draft EHC Plan or amendment notice.
13. The Council issued an amendment notice the next day, but this was for a different child. When Mrs X told the Council this, it apologised and asked Mrs X to delete the information. The Council issued a correct amendment notice and amended EHC Plan on 2 October 2024. Mrs X had 15 days to comment on the amended EHC Plan.
14. The Council responded to Mrs X’s complaint on 4 October 2024. It apologised for the delay and accepted it had not met the statutory timescales for issuing Y’s amended EHC Plan. Mrs X asked the Council to escalate her complaint to stage two of its complaint procedure.
15. The Council issued a draft EHC Plan on 17 October 2024, followed by a final EHC Plan on 4 November 2024. The amended EHC Plan included updated outcomes for Y, however, the SEN provision in the EHC Plan remained unchanged from Y’s previous EHC Plan.
16. The Council responded to Mrs X’s stage two complaint in mid-November. It said the delay in issuing Y’s EHC Plan was due to a staffing shortage. It said it had now funded new staff within its EHC team. It apologised it had not responded to Ms X’s communications between February and September 2024. Mrs X remained unhappy and complained to the Ombudsman.

My findings

17. The Council should have issued an amendment notice within four weeks of Y’s annual review. The Council accepts it failed to do this. It delayed issuing the amendment notice by 31 weeks and failed to communicate with Mrs X during this time. This was fault, causing Mrs X uncertainty and frustration over what SEN provision Y was entitled to.
18. When the Council issued an amendment notice, it sent Mrs X a notice for a different child. This was fault. The Council followed its procedures and asked Mrs X to delete the information. I am satisfied with the Council’s actions. Once the Council issued the correct amendment notice, it issued the final amended EHC Plan within the required eight weeks.
19. While the delay to issuing the amendment notice caused Mrs X uncertainty and frustration, it did not result in Y missing out on any SEN provision. During the delay Y continued to attend school and receive the SEN provision set out in their earlier EHC Plan. While the outcomes in Y’s EHC Plan were updated in the amended Plan, the SEN provision remained the same. I therefore cannot say Y missed out on any provision because of the delay.
20. We found fault with the Council for similar issues in an earlier investigation. The Council provided an action plan to ensure it met the statutory timescales for annual reviews. In response to my enquiries the Council provided an update on its performance against its action plan up to December 2024. While the number of amendment notices issued within four weeks increased, the total percentage issued within four weeks remained below 50%. The percentage of amended EHC Plans finalised within 12 weeks declined to 13.4%.
21. The Council has explained it has increased staffing, and its performance is now improving. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

Back to top

Action

22. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for the uncertainty and distress caused by the delay in issuing Y’s amendment notice, and its poor communication. 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.
2. Pay Mrs X £500 to recognise the uncertainty and distress caused by the delay in issuing Y’s amendment notice, and its poor communication.
23. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

I find fault causing injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman