Summary: Ms X complained the Council failed to complete an annual review of her child’s Education, Health and Care Plan. We found a sixteen-month delay by the Council in updating the Plan. This caused unnecessary time, trouble, inconvenience and distress. The Council will apologise, make a symbolic payment and service improvements.

The complaint

1. Ms X complains the Council failed to complete an annual review of her child’s Education, Health and Care (EHC) Plan between 2023 and 2025.
2. Ms X complains the Council admitted fault in early 2024 and promised to provide an amended final EHC Plan by Spring 2024 but then did not do so until early 2025.

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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. 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 investigated the complaint about delay in reviewing the EHC Plan up to January 2025.

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How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
7. I have considered independent stage two complaint reports and the Council’s response to the findings and recommendations.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. 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

Review of EHC Plan

Relevant law and guidance

10. The law says EHC plans must be reviewed at least once a year but recommends for children age 2 to 5 they are reviewed every 3 to 6 months to ensure the provision continues to be appropriate (The Code, 9.178).
11. The council must complete the annual 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) 
12. 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 (SEND) 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.
13. There is a right of appeal to the SEND 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;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

What happened

14. Ms X’s child had an EHC Plan issued by the Council in 2022 when they were in early years education. The Code recommends Plans for under 5’s are informally reviewed every 3 to 6 months. This did not happen.
15. An annual review meeting was held in late Spring 2023, when Ms X’s child was aged 4. The Council had to decide whether to amend, maintain or discontinue the EHC Plan within four weeks of this meeting. The Council says it took two months to decide, and its decision was to amend.
16. The Council should have provided a draft plan at the time of this decision, but did not do so until December, a delay of several months. By this time the school had arranged another review, with the draft plan arriving eleven days before the next review meeting. Ms X declined to respond to the draft given another review meeting was imminent and the outcome of this may alter the Council’s decision.
17. Ms X complained about delay in early 2024. The Council accepted fault and promised it would issue the finalised Plan by Spring 2024. The Council said Ms X had a good relationship with school and despite the Plan not being updated on time it was satisfied Ms X’s child had their special educational needs met. The Council said the delay was due to staff shortages which it was struggling to address. It said the increased funding based on the draft EHC Plan was backdated so the school had the funding needed.
18. The Council issued the amended final Plan in early 2025, thirteen months after the 2024 review meeting.

Fault and injustice

19. The Council should have provided a final amended Plan within twelve weeks of the Spring 2023 review meeting. It did not do so until early 2025, a delay of sixteen months, ten months of which was after the Council’s complaint response acknowledging it had failed to issue the final Plan on time.
20. This was excessive delay and was fault.
21. Ms X was put to additional time and trouble due to the Council’s fault. Her child’s Plan was not kept up to date at an age when the Code expects more frequent reviews to be held to ensure the Plan remains current.
22. The Council says the school had the necessary resources and was able to meet Ms X’s child’s needs throughout the period. The complaint investigator at stage two found the timescale breach was a ‘technicality’. This ignores that Ms X had no appeal right until the final EHC Plan was issued and could not challenge the provision in the Plan for nearly two years. This was an injustice, particularly given the age of Ms X’s child and the expectation their provision would be reviewed more frequently than annually for some of the period complained of.

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Agreed Action

Within four weeks of my final decision:

23. The Council will apologise to Ms X for the continued delay after it upheld fault in its complaint response, which was a repeat of the previous fault.
24. The Council will pay Ms X £500 for the time, trouble and distress caused by the excessive and repeated delay.
25. The Council will ensure it has robust procedures to ensure it complies with actions to remedy a complaint and tracks actions until they are complete.
26. The Council will provide us with evidence it has complied with the above actions.

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Decision

27. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman