Summary: Mr X complained the Council delayed amending and finalising his child, Y’s Education, Health and Care (EHC) plan in March 2022 and again in November 2022 after an interim review. The Council was at fault for failing to finalise Y’s EHC plans in line with statutory timescales. The Council agreed to apologise and pay Mr X £600 to recognise the frustration and uncertainty caused.

The complaint

1. Mr X complained the Council delayed amending and finalising Y’s Education, Health, and Care (EHC) plan following an annual review in March 2022, and again in November 2022 after an interim review. Mr X says this caused uncertainty about what provision Y would be provided and delayed his right of appeal to the SEND Tribunal about the content of the EHC plan and the named educational placement.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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. 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)
6. 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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How I considered this complaint

7. I spoke to Mr X about the complaint and considered information he provided.
8. I considered information provided by the Council.
9. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Background Information

Education, Health and Care plans

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
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.

Annual reviews

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a 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)
15. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Case Law

18. Recent caselaw says 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

What happened

19. Y is a child with SEN and an EHC plan. In March 2022, Y’s school arranged an annual review of the EHC plan. Following the review, the school sent the Council a report of Y’s needs and proposed changes to the EHC plan.
20. In August 2022 Mr X contacted the Council and said he had not received a draft or final copy of Y’s EHC Plan. The Council sent a draft copy of Y’s EHC plan in September 2022.
21. Mr X wrote to the Council and complained it had failed to follow the annual review process. He raised concerns about the school’s ability to deliver the content of Y’s EHC plan, and said no caseworker was assigned from the Council to Y. He requested the Council urgently review the situation.
22. The Council responded in mid-October 2022 and:
• Apologised to Mr X for failing to finalise Y’s EHC plan and the subsequent delay this caused for his right of appeal to the SEND tribunal.
• Told him it would instruct a duty case officer to issue a final EHC plan.
• Provided a named contact of a senior casework officer.
• Said it would request the casework officer contact the school to review how it was delivering the content of Y’s EHC plan.
23. On the same day, Mr X wrote to the Council and requested a stage 2 response. He repeated his concerns and said the Council had not sent an accurate draft EHC plan. He requested the Council review the matter again.
24. The Council responded in mid-November 2022. It told Mr X:
• It accepted it was at fault for failing to inform him of the change in casework officer for Y and apologised.
• The school had not raised any concerns about Y’s education with the Council.
• An emergency interim review would take place in November 2022, and if Mr X still had concerns about the content and provision outlined in the EHC plan he could appeal to the SEND tribunal.
• It had made changes to its processes and would ensure that it would notify parents when there is a change in casework officer.
25. The school held an interim review in November 2022 to discuss the change in needs. Mr X said Y’s needs had changed. The review recommended a dual roll, with some of Y’s education being provided at the school and some of his needs being met at home. The school sent the information to the Council to consider.
26. In January 2022 the Council reviewed the recommendation for Y to be provided a dual roll. The Council decided Y required education delivered full time at the school to meet his needs and did not agree to Y receiving education at home.
27. Mr X remained unhappy and brought his complaint to us. Mr X told us the Council had still not sent the final EHC plan for either March 2022 or November 2022. He says the EHC review in March 2022 recommended 20 hours of additional funding for a Teaching Assistant to provide 1:1 support to Y, but the draft EHC plan following the November 2022 interim review does not include this provision. Mr X said he intends to appeal both the named educational provider and the content of the plan to the SEND tribunal.
28. In response to our enquiries, the Council said it would issue the draft EHC plan in early February 2023 and it was still considering how to support Y with his education.

Analysis

March 2022 annual review

29. The Council should have sent Y’s final plan to Mr X within 12 weeks of the March 2022 review, by early June 2022. It did not do so, and this is fault. The Council apologised for the delay, but this does not go far enough to remedy the injustice caused.

November 2022 interim review

30. The Council should have sent Y’s final plan to Mr X within 12 weeks of the November 2022 review, by early February 2023. It did not do so, and this is fault.
31. The above faults delayed Mr X’s right of appeal to the SEND tribunal about the content of the plan, including the provision provided and the named school. It also caused Mr X uncertainty about the provision Y would be entitled. It is now 12 months since the original review in March 2022 and Y’s plan has not been amended to reflect his current needs. The Council should now issue Y’s final EHC plan to enable Mr X to take the matter to the SEND Tribunal.

Casework officer

32. The Council accepted it was at fault for failing to notify Mr X that Y’s casework officer had left the organisation. It has already apologised and explained service improvements it had implemented to prevent recurrence of the fault. These are appropriate actions, and I will not investigate the matter further.

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Agreed action

33. Within one month of the final decision the Council will:
• Finalise Y’s EHC plan and send a copy to Mr X along with a decision letter setting out his right of appeal to the SEND tribunal.
• Write to Mr X and apologise for the frustration and uncertainty caused when it failed to issue a final EHC plan for Y following both the March 2022 and November 2022 reviews.
• Pay Mr X £600 to acknowledge the frustration and uncertainty caused by the delay in issuing Y’s draft EHC plan and consequent delay in issuing a final plan between March 2022 and March 2023.
• Write to all SEND officers and remind them of recent caselaw R (L, M, and P) v Devon County Council [2022] EWHC 493 which says Councils must, from March 2022, 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.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I completed my investigation. I found evidence of fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman