Summary: Mr and Mrs X complained the Council has failed to amend their son, Y’s, Education, Health and Care Plan within the statutory timescales. Mr and Mrs X say the Council failed to deliver the provision set out in section F of Y’s Education, Health and Care Plan. Mr and Mrs X also complain the Council failed to communicate with them effectively. Mr and Mrs X say this has caused them and their family distress and for Y to miss out on provision. We have found fault in the actions of the Council for delay in completing the annual review process and failing to provide the provision set out in section F. The Council has agreed to write to Mr and Mrs X to apologise and pay them a symbolic payment.

The complaint

1. Mr and Mrs X complained the Council has failed to amend their son, Y’s, Education, Health and Care (EHC) Plan within the statutory timescales. Mr and Mrs X say the Council failed to deliver the provision set out in section F of Y’s EHC Plan. Mr and Mrs X also complain the Council failed to communicate with them effectively.
2. Mr and Mrs X say this has caused them and their family distress and for Y to miss out on provision.

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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(1), as amended)
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)
6. 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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What I have and have not considered

7. I have considered Mr and Mrs X’s complaint from March 2024 which is when the annual review was due to be completed.
8. I have not considered Mr and Mrs X’s complaint prior to March 2024 as I do not consider there is good reason these issues could not have been raised sooner.

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How I considered this complaint

9. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
10. Mr and Mrs X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

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. 

Maintaining an EHC Plan

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.

Reviewing EHC Plans

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 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 cease to maintain 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. 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

16. The Council issued Y’s EHC Plan in March 2023.
17. Y’s school arranged an annual review for mid-April 2024, but this was cancelled and rescheduled for mid-May 2024.
18. The annual review went ahead in mid-May 2024 and shortly after the Council received communication from the school that Mr and Mrs X had asked for additional time to provide their comments.
19. Mr and Mrs X raised a complaint with the Council in mid-November 2024 and said they had not received any communication or a decision letter following Y’s annual review. The Council emailed Y’s school the following day to say it had not been provided with any paperwork following Y’s annual review.
20. The Council received the annual review and parental comments shortly after this and issued a letter saying it would look to amend Y’s EHC Plan. The Council later said it had issued this prematurely. The Council emailed Mr and Mrs X the following day and said it had not previously received any paperwork from the school.
21. The Council sent a proposed amended EHC Plan to Mr and Mrs X in late November 2024 and consulted with a placement in early December 2024.
22. The Council responded to Mr and Mrs X’s complaint in early December 2024 and said the delay in completing Y’s annual review was due to not receiving paperwork from the school.
23. The Council issued Y’s amended EHC Plan in late January 2025.
24. Mr and Mrs X raised a further complaint in February 2025. They said they were unhappy there had been a delay in completing Y’s annual review and the process had not been completed until January 2025. Mr and Mrs X also said they were unhappy that Y had not been receiving the provision set out in section F including Occupational Therapy (OT) and Speech and Language Therapy (SaLT).
25. The Council responded in early March 2025 and said it accepted there had been a delay in completing Y’s annual review. It also said there had been a gap of between one and one and a half terms in the provision of OT. The Council confirmed it had taken action to remind school staff around the annual review process and delivery of provision. The Council also said it had written a recovery plan for the SEND Assessment Team including training in relation to the monitoring of plans and it had actioned the recruitment of more staff.

Analysis

Maintaining and EHC Plan

26. There was a delay in scheduling the annual review meeting which should have been scheduled for February 2024 to allow enough time to complete the review process. This was not scheduled until April and then further delayed until May.
27. Once the review had taken place Mr and Mrs X asked for additional time to provide their comments which would have further delayed the process. Y’s school informed the Council of this request in June 2024. I have not been able to see the Council took any action to progress the annual review until Mr and Mrs X complained in November 2024 they had not received any outcome. This is fault and would have caused Mr and Mrs X frustration and distress. In addition, Mr and Mrs X’s appeal right have been delayed.
28. The Council has confirmed it has taken action to address this fault with the school and its SEND team. I have therefore not recommended any service improvements.

Section F provision

29. Mr and Mrs X complained the Council failed to put the provision outlined in Section F of Y’s EHC Plan in place. The majority of the provision was to be delivered via Y’s school. In particular, Mr and Mrs X complained Y was not receiving SaLT and OT provision.
30. The Council has shown SaLT provision was in place for Y between March 24 and March 25. The Council has also said that OT provision was in place for some of the period. However, the OT provision which was in place was not always delivered by a professional trained to the level set out in Y’s EHC Plan. This is fault and has caused Y to receive provision not at a level described in his EHC Plan.
31. The Council has confirmed it has taken action to address this fault with the school and its SEND team. I have therefore not recommended any service improvements.

Communication

32. Mr and Mrs X complained the Council had failed to communicate effectively with them. While I can see that most of the correspondence has been responded to. There is a large gap between June and November 2024 where the Council did not communicate about Y’s annual review. The gap in communication for such a lengthy period is not reasonable and is fault and would have caused Mr and Mrs X frustration and distress.

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Action

33. Within four weeks of a final decision, the Council should:

• Write to Mr and Mrs X and apologise for the distress and frustration caused by the faults identified. 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 Mr and Mrs X £400 for the distress, frustration and delay in receiving appeal rights caused by the delay to the annual review process.
• Pay Mr and Mrs X £450 for the impact of the missed OT provision between March 2024 and March 2025. This is based on roughly £150 per term.

34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman