Summary: We have found fault with the Council for failing to meet the Educational, Health and Care Plan annual review timescales. This caused Mrs X and her daughter avoidable distress. The Council has agreed to take action to remedy their injustice.

The complaint

1. Mrs X complained the Council failed to issue her daughter’s final amended EHC Plan within the statutory timescale following an annual review.

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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. 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.
4. 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(1), as amended)

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What I have and have not investigated

5. Mrs X said that there have been issues with delays following annual reviews over recent years relating to all of her children. I have just investigated the issues surrounding her daughter’s most recent annual review which took place in June 2024.

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How I considered this complaint

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

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What I found

Law and guidance

EHC Plan

8. 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.
9. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

EHC Plan annual review

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 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)
11. 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.

EHC Plan phased transfer

12. When a child is due to move between key phases of education, councils must review an EHC Plan in sufficient time to allow for planning, and where necessary, commissioning on support and provision at the new institution.
13. For young people moving from secondary school to a post-16 institution, the review and any amendments to the EHC Plan – including specifying the post-16 provision and naming the institution – must be completed by 31 March in the calendar year of the transfer.

What happened

Annual review and Phased transfer review

14. Mrs X’s daughter, Y has SEN and an EHC Plan. In June 2024, Y’s school held an annual review meeting. The school completed the paperwork and sent it to the Council in July. The Council sent the draft amended EHC Plan to Mrs X in September. The Council met with Mrs X, and she sent in comments on the proposed amendments. The Council issued a final amended Plan to Mrs X in November 2024. This took 21 weeks; 9 weeks longer than the statutory timescales.

Complaint handling

15. Mrs X complained to the Council in October 2024 about the delays. The Council did not respond to this so Mrs X escalated her complaint to stage 2. The Council wrote to Mrs X in December 2024. It apologised for the delays she experienced during the annual review and complaints process. It explained the delays were related to staffing resources. It informed Mrs X of the ways the Council was addressing the issues which included staff recruitments and training.
16. Mrs X brought her complaint to the Ombudsman in January 2025.

Update

17. As Y was approaching 16, the school held a phase transfer review in December 2024. The Council issued a proposed amended Plan in January and February 2025. It issued the Final Amended EHC Plan naming a specific college in March 2025.
18. In response to my enquiries, the Council set out the service improvements that it has implemented since Mrs X’s complaint. This included:
• weekly team meetings to provide staff with regular updates in relation to priorities and requirements.
• Annual review training
• Customer communication training
• Weekly drop-in sessions to ensure prompt action in SEND officers require further support to maintain deadlines.
19. In its response, the Council also proposed to offer Mrs X £100 per month for the delay in the EHC Plan statutory process.

My findings

Failure to meet statutory deadline

20. The Council was at fault for failing to meet the statutory deadlines during Mrs X’s daughter’s EHC Plan annual review process. The process took 9 weeks/2 months longer than it should. This caused Mrs X frustration and delayed her appeal rights.
21. Mrs X’s daughter did not miss out on education or SEN provision during the delays. Therefore, I did not consider the Council’s offer of £100 per month as appropriate. The Council agreed to apologise and pay Mrs X a symbolic payment of £300 in recognition of the distress caused.
22. The Council’s service improvements are welcomed. The post-16 phased transfer review met the deadline of 31 March is an indication that the improvements are working.

Complaint handling

23. The Council’s failure to respond to Mrs X’s stage 1 complaint further frustrated the situation. The Council has agreed to apologise and pay Mrs X £150 for the time and trouble it has taken her to complain. The Council also agreed to remind complaint handing staff of the timescales and deadlines set out in the Council’s Customer Feedback Policy.

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Agreed action

24. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for failing to meet the statutory deadline for her daughter’s EHC Plan annual review, and for poor complaint handling.
2. Pay Mrs X £300 in recognition of the avoidable distress caused by the delays.
3. Pay Mrs X £150 for the time and trouble it has taken her to complain.
4. Remind relevant staff of the complaint handling process and timescales.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I have found fault with the Council for failing to meet the EHC Plan annual review timescales. This caused Mrs X avoidable distress and delayed her appeal rights.

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Investigator's decision on behalf of the Ombudsman