Summary: Mr X complained the Council failed to amend his daughter, Y’s, Education, Health and Care (EHC) Plan after the 2023 annual review. He also complained the Council delayed completion of the 2024 annual review and EHC Plan reassessment. Mr X also complained about poor complaint handling. Mr X said this distressed him and frustrated his appeal right to the Tribunal. There was fault as the Council did not issue the final EHC Plan within statutory timescales and its complaint handling was poor. This frustrated Mr X and frustrated his right of appeal to the Tribunal. The Council will apologise, issue the final EHC Plan, make a financial payment and issue guidance to its staff.

The complaint

1. Mr X complained the Council failed to amend his daughter, Y’s, Education, Health and Care (EHC) Plan after the 2023 annual review. He also complained the Council delayed completion of the 2024 annual review and EHC Plan reassessment. Mr X also complained about poor complaint handling. Mr X said this distressed him and frustrated his appeal right to the Tribunal.

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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.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

6. I have investigated that part of Mr X’s complaint about Council’s actions after the 2024 annual review and complaint handling.
7. I have not investigated any reference to the 2023 annual review as Mr X could have complained about them earlier. This is a late complaint and there is not enough reason to investigate this matter now.

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How I considered this complaint

8. I read Mr X’s complaint and spoke to him about it on the phone.
9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on a draft decision. All comments were considered before making a final decision.

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What I found

Background information

11. 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. 
12. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
13. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
14. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
15. 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; and
• amendment to these elements of an EHC Plan;

16. 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)
17. The Council’s complaint policy said it would:
• Acknowledge a stage one complaint within five working days and respond within 10 working days.
• Acknowledge a stage two complaint within five working days and respond within 20 working days.
18. The Council should offer an escalation right at all points of its complaint process. This includes offering the right of escalation to the Ombudsman when the complaint has completed the Council process.

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. Her school reviewed the plan in June 2024. The meeting recorded the Council should amend the plan. Mr X asked the Council to complete a reassessment for Y.
21. Mr X complained to the Council in September 2024. He complained about the delays in responding to the request to complete a reassessment.
22. The Council responded in October 2024. The response confirmed the Council did not make a timely decision on Mr X’s request for a reassessment of Y’s needs. The Council upheld the complaint and apologised. It did not offer a right of escalation to stage two.
23. The day after the complaint response, the Council agreed to complete a needs reassessment.
24. Mr X asked the Council to escalate his complaint to stage two the following day.
25. Mr X chased the Council for its response in December 2024. He said he should have had a response within 20 days but has not. The Council apologised for the delays the following week.
26. The Councill issued its stage two complaint response in January 2025. The response set out capacity pressures in the service. The Council confirmed it would try to meet the 14-week timescale. The response did not offer any right of escalation to the Ombudsman.
27. The Council issued the draft EHC Plan in March 2025.
28. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to issue the EHC Plan with appeal rights.
29. In response to my enquiries the Council stated it had not issued the final EHC Plan following the request in June 2024. It accepted the delays and accepted it did not use the correct templates when responding to complaints.

My findings

Needs reassessment

30. Mr X asked the Council to complete a reassessment in June 2024. The Council must tell Mr X if it will complete an EHC needs reassessment within 15 calendar days of receiving the request. The Council did not tell Mr X it would complete the reassessment until October 2024, after his complaint. This is a three-month delay. This is fault, frustrating Mr X.
31. The Council must then issue the final EHC Plan within 14 weeks of the date it agreed to complete the reassessment. The Council should have issued the final EHC Plan by the middle of January 2025. The Council has still not issued the final plan.
32. 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 fault frustrated Mr X’s appeal right to the Tribunal.

Complaint handling

33. The Council complaint policy allows 25 working days for a stage two response. The Council should have responded by the middle of November 2024. The Council did not respond until early January 2025, a delay of two months. This delay is fault, frustrating Mr X.
34. The Council did not provide any escalation rights. The Council should set out an individuals right to a stage two escalation in its stage one response. It should also detail the individuals rights to approach the Ombudsman in its stage two response. The Council accepted in its response to my enquiries it used the wrong templates. The Council should offer escalation rights at each stage of the process. It did not. This is fault. However, Mr X did not suffer any significant injustice from this, as this did not hinder him escalating his concerns.

Wider impact

35. The details of the case raised concerns about the Council stopping annual reviews. Given these concerns, under Section 26D of the Local Government Act 1974, we have started a new investigation to consider the wider impact on others in the Council area. This investigation will consider concerns with the Council’s position and if there is any indication of a potential widespread injustice to members of the public served by this Council.

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Recommended action

36. To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council will take the following action within 4 weeks of this final decision:
• Apologise to Mr X for not issuing the EHC Plan within statutory timescales and not responding to the complaints within the timescales in its policy. 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.
• Issue the final EHC Plan without further delay, giving Mr X an appeal right.
• Pay Mr X £300 to recognise the frustration the Council fault caused.
• Remind relevant staff of the importance of effective complaint handling, adhering to timescales and offering correct escalation rights.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman