Summary: We will not investigate this complaint about delay by the Council in completing Ms X and Mr Y’s child’s Education, Health and Care Plan annual review. This is because the Council has agreed to pay Ms X and Mr Y £400 and this provides a suitable remedy for the impact of its delay.

The complaint

1. Ms X and Mr Y complain about delay by the Council in completing the annual review of their child’s Education, Health and Care (EHC) Plan. As a result their right of appeal against the amended EHC Plan was delayed, they suffered distress and went to the expense of instructing solicitors to deal with their complaint.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

3. I considered information provided by Ms X and Mr Y’s representative (Miss Z) and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Councils should review EHC Plans at least every 12 months. Once an annual review meeting has taken place, the council should circulate the report of the meeting within two weeks, issue a decision not to amend the EHC Plan or an amendment notice confirming they will amend the Plan within four weeks, and issue the final amended Plan within eight weeks.
6. The Council failed to meet the relevant timescales in this case. The annual review meeting took place in April 2024 and the deadline for issuing the final amended EHC Plan was in June 2024.
7. When the deadline passed Ms X and Mr Y instructed solicitors who raised a Stage 1 complaint with the Council on 27 August 2024. The Council responded to the complaint on 23 September acknowledging fault, apologising and confirming it had now issued the amended draft EHC Plan. The Council’s response offered escalation to Stage 2 of its complaints process if Ms X and Mr Y remained unhappy.
8. Ms X and Mr Y’s solicitors issued the Council a ‘pre-action protocol’ letter on 27 September 2024 which confirmed they intended to apply for Judicial Review in the event the Council did not issue the final amended EHC Plan without further delay. They then sent another letter of complaint to the Council asking to escalate the matter to Stage 2 on 2 October 2024.
9. The Council issued the final amended EHC Plan on 7 October 2024 and responded to Ms X and Mr Y’s solicitors on 9 October. The solicitors confirmed the issue of the amended EHC Plan resolved the ongoing issues, but sought reimbursement for Ms X and Mr Y’s legal fees of £1,680. The Council refused this request, noting the issue had been resolved through the complaints process and did not require any formal legal action. It did however agree to pay Ms X and Mr Y £300 in recognition of the delay in issuing the final EHC Plan.
10. We would not normally suggest a council should reimburse legal fees for raising a complaint or referring that complaint to us. This is because people do not usually need professional help to make or pursue a complaint. Complaints processes are generally easy to follow and anyone may complain to us within the need for legal representation.
11. I have considered the points raised by Ms X and Mr Y’s solicitors but I do not find any basis to say the Council should reimburse the legal fees incurred in this case. Ms X and Mr Y could have raised their own complaint with the Council and the pre-action protocol letter dated 27 September 2024 was, in my view, entirely avoidable and unnecessary. The Council had issued a Stage 1 response upholding the complaint and had progressed the case by issuing a draft amended EHC Plan. It also offered escalation to Stage 2 if Ms X and Mr Y remained unhappy. It was of course entirely Ms X and Mr Y’s decision how to progress their complaint but I cannot say the legal fees were the direct and unavoidable result of the Council’s delays and I do not consider it would be proportionate to expect the Council to reimburse them.
12. I note however that the Council’s offer of £300 falls below what we would normally recommend for delay of four months in the issue of an EHC Plan. I have therefore invited the Council to increase its offer to £400 and, to its credit, it has agreed to this proposal.

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Agreed action

13. The Council will pay Ms X and Mr Y £400 between them for the impact of its delay. This amount is in-line with our Guidance on Remedies and provides a suitable remedy for the injustice claimed by Ms X and Mr Y. It is therefore unlikely further investigation would achieve anything more for Ms X and Mr Y.

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Final decision

14. We will not investigate this complaint. This is because the Council’s agreement to pay Ms X and Mr Y £400 provides a suitable remedy for the injustice caused by the Council’s delay.

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Investigator's decision on behalf of the Ombudsman