Summary: Mrs X complained about the Council’s handling of her son, Y’s, annual review. Mrs X also complained the Education, Health and Care (EHC) Plan did not focus on preparation for adulthood. Mrs X said this impacted school consultations, transition, Y’s mental health, and her mental and physical health. There was fault in the way the Council did not include provision to assist preparing for adulthood, delayed issuing the EHC Plan and complaint handling was poor. This distressed Mrs X and frustrated her appeal right to the Tribunal. The Council agreed to apologise, make a financial payment and issue guidance to its staff.

The complaint

1. Mrs X complained about the Council’s handling of her son, Y’s, annual review. Mrs X also complained the Education, Health and Care (EHC) Plan did not focus on preparation for adulthood. Mrs X said this impacted school consultations, transition, Y’s mental health, and her mental and physical health.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
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

Background information

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. 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) 
10. 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.
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.
12. 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.
13. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;

14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
16. The SEND code of practice section 8.62 states “EHC plans must include provision to assist in preparing for adulthood from year 9”.
17. The SEND Regulations 2014 section 39 confirmed a council should consult with schools with the draft plan.
18. The Council complaint policy says it would respond to:
• stage one complaints in 10 working days; and
• stage two complaints in 20 working days.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Y has an EHC Plan. The Council issued the previous plan in July 2023. The Council reviewed the plan in March 2024. The minutes confirmed the meeting discussed preparing for adulthood, including career and living aspirations. Mrs X asked the Council to consult with her preferred school.
21. The Council told Mrs X it would amend the plan 5 weeks later, in April 2024. The Council confirmed it had consulted her preferred school with Y’s previous final EHC plan.
22. The Council issued the draft plan in May 2024. Mrs X said this was late and not finished.
23. The Council sent another draft plan in late June 2024.
24. In July 2024, Mrs X told the Council the draft plan needed amending. The Council issued another draft plan a week later.
25. The Council issued the final EHC Plan in August 2024.
26. Mrs X complained in September 2024. She said the plan lacked information about preparing for adulthood, the Council liaised with the school with an out-of-date plan and delays in the process.
27. The Council issued its complaint response in October 2024. The Council accepted it did not comply with the legal timescales for reviewing the EHC Plan and apologised. It also confirmed the plan should include preparation for adulthood. Mrs X did not agree with the Council response and asked the Council to escalate her complaint.
28. The Council issued its stage two complaint response at the end of November 2024. The Council said it recognised Mrs X didn’t feel the plan met Y’s needs and agreed to work with her to review the plan. The Council agreed to review the plan in six months, rather than 12, because of the delays.
29. The Council issued another final EHC Plan in January 2025.
30. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and pay a financial remedy.
31. In response to my enquiries the Council accepted it delayed the annual review process. The response confirmed the annual review meeting discussed preparing for adulthood.

My findings

Annual review and EHC Plan

32. Mrs X said the Council should not have consulted the school with the July 2023 plan. The Council consulted with the school Mrs X asked it to, with the active final EHC Plan. The Council issued the plan eight months before the consultation. There was no draft document to use at this time and the Council recently issued a final plan. The Council was not at fault.
33. The Council response stated the review meeting discussed preparation for adulthood. The Council has evidenced the meeting discussed preparation for adulthood, including what Y would like to do and where to live as an adult. However, the code referenced in paragraph 16, confirms the EHC Plan must include provision to assist in preparing for adulthood. Y’s August 2024 plan did not have this provision. The Council accepted in its complaint response the plan should include preparing for adulthood provision and has since issued an updated plan including provisions. Not including provisions to assist preparing for adulthood in the August 2024 plan is fault.
34. The Council response accepted delays in issuing the final EHC Plan. The Council should issue its decision to cease, amend or maintain the plan within four weeks of the annual review. If it decides to amend, it should then issue the final EHC Plan within four weeks of the decision, a total of 12 weeks. The Council took 23 weeks, an 11-week delay.
35. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This distressed Mrs X, impacted Y’s transition and frustrated appeal rights to the Tribunal.
36. I would usually make service improvement recommendations about timeliness of issuing plans in a case such as this. However, I can see other Ombudsman investigations made these. The Ombudsman is actively monitoring the Council’s learning from these recommendations.

Complaint handling

37. The Council policy, detailed in paragraph 18, sets out the Council should issue the stage one response in 10 working days. The Council response took 30 days, a 20-day delay. The policy says the Council should issue a stage two response in 20 working days. The Council issued its stage two response after 32 days, a 12-day delay. This is fault, frustrating Mrs X.
38. The Council did not give any escalation right in its stage one response. A council should provide details of how to escalate their complaint to stage two if individuals are not satisfied with the Council response. The Council did not do this. This is fault. As Mrs X did escalate her complaint on the same day, this did not cause any injustice.

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Agreed action

39. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for delays issuing a final EHC plan, not including provisions to assist in preparation for adulthood in the Plan and poor complaint handling. 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 £300 to recognise the distress and frustration caused by the 11-week delay in issuing Y’s EHC Plan.
• Remind relevant staff of the importance of effective complaint handling and giving an escalation right.
• Remind relevant staff of the Council duty to include provisions to assist in preparation for adulthood in EHC Plans from year nine.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman