Summary: The Council was at fault for the time taken to carry out an Education, Health and Care needs assessment and for the time it took to provide a final Education, Health and Care Plan following an annual review. This meant Mrs X’s child had to wait longer than they should have to receive the support they were entitled to. To remedy the injustice caused the Council agreed to apologise and pay Mrs X a financial remedy.

The complaint

1. Mrs X complains about the way the Council handled her child’s Education, Health and Care Plan, namely:
1. There was poor communication from the Council when carrying out an Education, Health and Care needs assessment and it took the Council too long to produce a final Education, Health and Care Plan.
2. The Council has never created her child’s Education, Health and Care Plan properly and it contains errors.
3. The Council delayed issuing a final Education, Health and Care Plan following an emergency annual review.
4. Mrs X’s child has not received the correct provision, and the school is not meeting her child’s 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. 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)
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(i), as amended)

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What I have and have not investigated

5. I have not investigated complaint b). This is because we cannot decide what should be included in an Education, Health and Care Plan only the SEND Tribunal can do this.

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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 before making a final decision.
8. 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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What I found

Law and guidance

9. 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. 
10. 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. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

11. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement
12. 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)
13. 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.
14. 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 Council can also call an emergency annual review of an EHC Plan at any time. 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)
15. 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.
16. 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.

What happened

17. On 22 December 2022, Mrs X asked the Council to carry out an EHC needs assessment of her child Y.
18. On 10 February 2023, the Council told Mrs X it agreed to assess Y’s needs.
19. The Council did not receive advice from an Educational Psychologist (EP), until July 2023. Following this the Council issued a draft EHC Plan to Mrs X in early December 2023 and a final EHC Plan on 22 January 2024.
20. In April 2024, Mrs X contacted the Council and raised concerns that Y could not manage their provision at school, Mrs X said she was going to take Y out of school as the school cannot meet Y’s needs. The Council responded to Mrs X on the same day and arranged to hold an emergency annual review on 29 April 2024.
21. At the annual review meeting, the school and Council discussed Y’s provision. Mrs X was asking for changes to Y’s provision. Y’s school sent the Council the completed annual review paperwork on 28 May 2024.
22. In the months that followed the Council gave Y’s school some extra funding to help support Y back into school full time and meet Y’s needs. There was some disagreement between Mrs X and the school about what support should be in place for Y, however this was support outside of Y’s current EHC Plan.
23. In early December 2024, the Council issued a draft EHC Plan for Y following the emergency annual review. Mrs X sent the Council comments on this which included saying Y needed a teaching assistant for all of their tutoring sessions.
24. The Council issued a final EHC Plan on 19 December 2024.

Mrs X’s complaint

25. Mrs X’s initial complaint was sent to the Council over several emails. Mrs X complained about poor communication from the Council and that it had never completed Y’s EHC Plan properly. Mrs X said it issued a final EHC Plan despite some information still being missing. Mrs X also raised concerns that since the emergency annual review the correct provision was not in place for Y.
26. Mrs X asked the Council to escalate her complaint to stage two of its process as she had not received a response at stage one.
27. The Council provided its final response to Mrs X’s complaint on 7 January 2025. The Council said:
• It recognised it had not been good at communicating with Mrs X. The Council said it recognised communication and timeframes were not met when it carried out an assessment of Y’s needs and issued an EHC Plan.
• The Council also recognised it did not complete the updated EHC Plan within the statutory timescales following the emergency annual review.
28. Mrs X remained dissatisfied and complained to the Ombudsman.

Findings

Complaint a) Education, Health and Care needs assessment and communication

29. Mrs X requested an assessment for Y on 22 December 2022. The Council told Mrs X it would assess Y’s needs on 10 February 2023. This was just outside the six week timescale the Council had to make this decision.
30. The Council only obtained EP advice in July 2023. I cannot see what steps the Council attempted to take to get this sooner given the delays with obtaining this advice. Following this it took the Council until 22 January 2024 to issue Y a final EHC Plan. The Council should have issued the final Plan within 20 weeks of 22 December 2022, so by 11 May 2023. Failure to do so was fault. Y had to wait an extra 36 weeks to receive their final EHC Plan.
31. The delays issuing Y’s EHC Plan would have caused the family frustration and uncertainty. The delays issuing Y’s EHC Plan has also had a significant impact on Y. On balance I am satisfied Y has missed out on provision. This is because the Council received the EP advice in July 2023 and most of the provision listed in the advice is in Y’s EHC Plan. We would normally expect a Council to complete an EHC Plan within 6-8 weeks of getting EP advice. Had the Council done this then Y would have likely started receiving their provision by September 2023. Therefore Y has missed out on getting four months of special educational provision.

Complaint c) Delay issuing final EHC Plan after annual review

32. The Council called an emergency annual review on 29 April 2024, after Mrs X contacted it about Y’s school not meeting their needs.
33. As the Council decided to amend Y’s EHC Plan, it should have issued Y with a final EHC Plan within 12 weeks of the review meeting, so by 22 July 2024. Failure to do so was fault. The Council did not issue a final EHC Plan until 19 December 2024, some four months late.
34. The delays issuing the Plan would have caused Mrs X frustration and uncertainty. At this time it was clear there were disagreements between Y’s school and the Council and Mrs X about what provision Y should receive. If the Council had issued the Plan within the correct timescales it would have given Mrs X the option of deciding whether to appeal it in summer 2024. I do not consider Y has missed out on provision by the Council’s failure to issue the EHC Plan. The Section F part of the Plan remains largely the same with only some very minor changes.

Complaint d) Y’s special education provision and school not meeting their needs.

35. The Council first became aware of Mrs X’s concerns around provision provided by Y’s school in April 2024. The Council decided to call an emergency annual review to address these. The notes from the annual review meeting showed that Mrs X was concerned the school could not meet Y’s needs. I am satisfied the Council considered whether Y was getting the provision in their EHC Plan. This is because the Council considered the school were taking steps to offer alternative provision and other education options to Y.
36. While I recognise Mrs X believed Y should be receiving support from a teaching assistant full time, this was not a requirement of Y’s EHC Plan.

Complaint handling

37. The Council was at fault for how it handled Mrs X’s complaint. Mrs X initially raised a complaint in October 2024. After not getting a response at stage one the Council agreed to consider the matter at stage two and sent a final response in January 2025. The Council missed the opportunity to try to resolve things for Mrs X at stage one and at an earlier stage.

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Agreed Action

38. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mrs X for the above faults, and for how it handled her complaint. 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.
• Pay Mrs X £400 to recognise the frustration and uncertainty Y’s family experienced by the delays issuing their final EHC Plan caused as a result of issues getting EP advice. This recommendation is calculated at £100 per month and covers the period between May 2023 (when Y should have received a final EHC Plan within the statutory timescales) until September 2023 (when the Council should have issued a final EHC Plan after getting its EP advice).
• Pay Mrs X £500 to recognise the loss of special educational provision to Y between September 2023 and January 2024.
• Pay Mrs X £500 to recognise the frustration and uncertainty the family experienced as a result of the delays issuing Y’s EHC Plan following the emergency annual review. I have calculated this at £100 per month for 5 months delay.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice. The Council has agreed to the above actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman