Summary: Mrs C complains the Council failed to complete her daughter Miss Y’s annual review and issue her Education, Health and Care Plan within statutory timescales. We find fault with the Council for delay and poor communication. We have agreed a symbolic payment for the frustration and distress caused.

The complaint

1. Mrs C complains the Council:

1. Failed to issue her daughters Education, Health and Care Plan (EHC Plan) in time after the annual review;
2. Did not name the setting she wanted in Section I;
3. Failed to respond to her stage one complaint;
4. Tried to cease Miss Y’s EHC Plan without following due process;
5. Is not clear about post-18 funding options;
6. Had poor communication with her throughout.

2. Mrs C would like to ensure this does not happen to others and for the Council to be clear and transparent about post-18 funding.

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The Ombudsman’s role and powers

3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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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How I considered this complaint

7. I spoke with Mrs C and considered the information she provided.
8. I made enquiries with the Council and considered the information it provided.
9. Mrs C 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

Legal and administrative background

Education, Health and Care Plan

10. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school.

Annual Reviews

13. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
14. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the Annual Review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Appeal right

15. There is a right of appeal to the SEND Tribunal against a decision not to assess, reassess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

Council’s complaints procedure

16. The Council has a two stage complaints procedure:
• Stage one – a response from an appropriate officer within four weeks.
• Stage two – a response from a manager within five weeks.

What happened

17. Miss Y has an EHC Plan and in 2024 she was moving between post-18 establishments.
18. In January 2024 Miss Y had her annual review. The Council sent a decision to amend the EHC Plan in early February.
19. The proposed amended EHC Plan was issued six days late on 13 February and the final EHC Plan should have been issued by 3 April, but was issued on 7 June, after Mrs C made a formal complaint and sent two warnings for judicial review action.

Complaint A delay in issuing EHC Plan

20. The annual review took place on 10 January 2024.
21. In the complaint response the Council said the delays were down to the college Mrs C preferred. She asked for her preferred college to be listed in Section I on 26 February. The Council contacted the college on the same day and sent it the paperwork requested on 25 March.
22. Mrs C says the Council failed to send the relevant paperwork to the college in time as the college had sent the Panel dates to the Council on 26 February, and the Council sent it a month later.
23. The College responded on the 15 April saying it could meet Miss Y’s needs on the provision the Council would fund the placement, just missing the 12 April Panel date.
24. This went to Panel on the 15 May but the result was not to fund the placement so the Council had to find an alternative package to complete the EHC Plan.
25. The Council issued the EHC Plan on 7 June naming a different college in Section I.

Complaint B failure to name parental preferred setting in Section I

26. The Panel reviewed the decision not to name Mrs C’s preferred college on 10 July and said it would be a repetition for Miss Y of the last three years.
27. It said funding a three-year programme after six years of funding would not be an efficient use of resources when a similar result could be achieved with support of 0-25 Services.
28. The Council emailed Mrs C on 12 July to tell her of the Panel decision and Mrs C expressed concerns about the Panel’s application of the relevant legislation.
29. On 8 August the Panel reviewed its decision and the Council agreed a two-year placement at Mrs C’s preferred placement. It told Mrs C on the same day.

Complaint C failure to respond to stage one complaint

30. Mrs C made a complaint to the Council on 22 May and chased up a response on 31 May.
31. Mrs X escalated this to a stage two complaint on 12 July as she had no response or update from the Council.
32. The Council sent a stage two response on 16 August, apologising for the delay, anxiety and distress.
33. The Council upheld complaints a - d and f in paragraph one above. It apologised for the delay and offered the following remedy totalling £1000:
• £400 for the loss of right to appeal;
• £100 for the delay in stage one complaint response;
• £200 for the time and trouble of bringing the complaint;
• £300 for the further failures identified.
34. The Council said the SEND service has faced a significant increase in requests for EHC Plans and this has resulted in delays. It has announced a £7million investment to improve the delivery of SEND by:
• Building capacity in the SEND service to reduce caseloads by 30%;
• Recruiting up to 80 new frontline staff;
• Improving the quality of EHCP’s;
• Developing a strong and consistent approach to decision making about EHCP and placements;
• Developing trusted relationships with families and partners and improve the Council’s communications.
35. Mrs C also complained about documents the Council sent to Panel which were outdated and contentious. She said after examining the documents sent to Panel in July, she had to correct, update, or provide replacements to almost every document. The Council said it asked officers to review the relevance of all documents when filing evidence for panels, and reminded them to ensure documents are up-to-date (within last 3 years) and relevant.
36. Mrs C was not satisfied with the Council’s response so she responded on 17 September raising complaint e (in paragraph one), and seeking for a refund of her legal costs she incurred, along with other issues.
37. The Council responded on 10 October and said it recognised it made errors throughout the annual review process and took steps in the stage two complaint response to provide a suitable remedy. However it does not provide repayment or compensation for costs incurred for appeals to the SEND Tribunal.
38. The Council also said issues arose during Panel which resulted in delays to the placement. It apologised for the confusion and uncertainty and offered a further remedy of £400 for Miss Y’s delayed start of 29 September 2024.

Complaint D cease the EHC Plan

39. At the annual review the Council confirmed it was not considering ending Miss Y’s EHC Plan.
40. It sent the decision to amend letter on 6 February and issued the proposed amended EHC Plan on 13 February.
41. On 20 May the Council emailed Mrs C saying the Panel did not agree to fund the College she wanted and the Council “would look to conclude the EHC Plan at the end of this academic year.”
42. In the stage two complaint response the Council said this was an error in judgement and apologised for the distress caused.

Complaint E post-18 funding options

43. Mrs C asked for a copy of the policy for post-18 funding which the Council provided in June 2024.
44. Mrs C questioned why the Council did not publish it as it is important information for parents to understand post-18 funding decisions.
45. In the stage two complaint response the Council said it was updating the policy for the next academic year and could not confirm if or when it will be published.
46. Mrs C responded to the Council’s stage two response and said it does not matter if the policy is under annual review, it should still be available. She first raised this in 2020. She said the funding choices for under 18’s is published but for over 18’s it is unknown for parents and carers. She feels the Council should be transparent about the process so parents and carers can make informed choices.
47. In response the Council said there is no statutory regulation that requires publication of individual documents. The Local Offer includes information on funding arrangements. However it appreciates feedback and passed Mrs C’s comments to the relevant team for consideration.

Complaint F poor communication

48. Mrs C sought information from the SEND team which it logged as a compliant when it was not. She said the Council did not share information in a timely manner.
49. The Council upheld this complaint saying the SEND team have not always followed the Customer Service standards about communication.

Analysis

Complaint A

50. There was delay issuing Miss Y’s EHC Plan following the annual review in January 2025 (see paragraph 20).
51. This is fault by the Council causing frustration and distress to Mrs C. I agree with the remedy put forward by the Council.

Complaint B

52. Mrs C’s preferred placement went to Panel three times in May, July and August 2025. It was agreed a month before Miss Y’s start date.
53. This delay is fault causing frustration and uncertainty to Mrs C and Miss Y. Miss Y started the course a month late which meant she did not have a smooth transition into her residential placement, and missed the induction period.
54. I cannot question the Panel decision but the delay is fault which the Council accept in its complaint response. I agree with the remedy put forward by the Council.

Compliant C

55. The Council did not reply to Mrs C’s stage one complaint which is fault (see paragraph 17).
56. Mrs C raised a stage two complaint which the Council responded to thoroughly.
57. The delay caused Mrs C frustration and distress and the Council put forward a remedy in its response.

Complaint D

58. An email was sent to Mrs C in error which said the Council would cease Miss Y’s EHC Plan after the school year.
59. This caused Mrs C much distress, frustration and uncertainty as the Council did not deliver the decision to cease as required so Mrs C was left unsure whether the EHC Plan would be sent as promised after the annual review or if Miss Y would no longer have an EHC Plan.
60. Mrs C took legal advice on the matter and incurred legal costs. I acknowledge Mrs C’s reasons and why she believes the Council should pay or contribute towards her legal costs. However, we only consider repayment of legal costs, or contributions towards such costs, in exceptional circumstances. At this stage, I found it was not necessary for Mrs C to incur legal costs.
61. In the complaint response the Council apologised for the error and said it was down to poor training for a new member of staff. It said this has been identified by the SEND team following the SEND pathway review last year which resulted in a restructure of the SEND team, and a £7million investment.

Complaint E

62. While I understand why Mrs C would like to have the information published by the Council, as it has no obligation to do so I cannot find fault but I note the Council have passed this on to the relevant team.

Complaint F

63. The Council acknowledge Mrs C had poor communication from the SEND team and apologised in the complaint response.
64. The Council are addressing this in its SEND improvement investment so I have not added any service improvements as we will monitor the impact of these changes through our complaints.
65. I agree with the Council’s remedy offered to Mrs C.

Remedy

66. I agree with the remedy put forward by the Council.
67. Mrs C accepted this in November 2024 but did not receive payment so in February 2025 so she referred her complaint to the Ombudsman.
68. I have added a further remedy for this delay.

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Agreed Action

69. Within one month of the final decision the Council should:
• apologise to Mrs C and Miss Y for all the delay and fault identified above. This caused distress, frustration, and uncertainty. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Mrs C £1000 to acknowledge the distress, frustration and inconvenience caused to her by the faults identified above;
• pay Mrs X £200 for the time and trouble of bring her complaint to the Ombudsman as the remedy payment was late;
• pay Mrs C on behalf of Miss Y £400 for the distress, frustration and loss of opportunity caused by the delayed start of her post-18 placement. (These are symbolic amounts put forward by the Council based on our Guidance on Remedies.)
• The total payment to Mrs C is £1600.
70. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

71. I find the Council at fault for delay and poor communication after Miss Y’s annual review causing injustice to Mrs C and Miss Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman