Summary: Ms X complained the Council has not updated her child’s Education, Health and Care Plan for years meaning she cannot be sure her child is getting the support they need. We have found the Council at fault for not updating the Education, Health and Care Plan and for the way it handled Ms X’s complaints about this. The Council agreed to apologise to Ms X and make payments to recognise the distress, loss of opportunity and time and trouble she experienced.

The complaint

1. Ms X complains the Council has not updated her child’s Education, Health and Care Plan since 2018.

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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 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)
3. 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)
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 not investigated matters before March 2022. Ms X initially contacted the Ombudsman in April 2023 as the Council had not responded to her complaints. We cannot investigate complaints where someone takes more than 12 months to complain to us about something the Council has done. In this case, I am satisfied Ms X could have complained to us sooner about the events from 2018 onwards.

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How I considered this complaint

6. As part of this investigation, I considered the information provided by Ms X and the Council. I spoke with Ms X over the telephone about the complaint. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
7. 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

Law and guidance

8. 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.
9. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement. 
10. 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 take place. The process is only complete when the council issues a decision about the review.
11. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (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 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.
13. The Council must then issue any final amended Plan within eight weeks of the amendment notice, therefore a final Pan must be issued within twelve weeks of the review meeting. (R (L, M and P) v Devon County Council)
14. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

The Council’s complaints procedure

15. The Council operates a three stage complaints procedure.
• At stage one the Council will provide a full response within 10 working days.
• At stage two the Council will provide a response within 15 working days.
• At stage three the Council will provide a response within 20 working days.

What happened

16. In this section of the statement I summarise key events but I do not refer to every single contact and communication between Ms X and the Council.
17. Ms X’s child, Y, has special educational needs and has an EHC Plan. Y received their EHC Plan in March 2018 when they were nearing the end of primary school.
18. In March 2022, Ms X contacted the Council, and asked it to update Y’s EHC Plan as the Plan had not been updated since 2018, despite annual reviews and draft EHC Plan’s being issued previously.
19. The Council decided in July 2022 that Y’s current placement and provision should continue and it would look at the provision Y was receiving in their next annual review.
20. In late February 2023, the Council held an annual review of Y’s EHC Plan. The Council decided it would amend Y’s EHC Plan and told Ms X this in July 2023.
21. In early August 2023, the Council sent Ms X an amended EHC Plan for Y. The Council also asked all the agencies involved with Y for updated advice on Y.
22. The Council received updated advice from the agencies working with Y and issued a further draft EHC Plan on 14 November 2023. This draft Plan reflected Y’s transfer into post 16 education from September 2024 and contained some new section F provision.
23. After issuing this draft EHC Plan to Ms X the Council did not get back in contact with her until March 2024, following a change in Ms X’s caseworker.
24. During March and April 2024, the Council was in discussions with Ms X and Y’s school and other agencies about the content of the latest draft EHC Plan. On 26 April 2024, the Council issued a further draft EHC Plan for Y.
25. In May 2024, Ms X and the Council met to discuss her concerns with the draft EHC Plan. Ms X did not believe the provision listed in section F was specific or quantified.
26. In late July 2024, the Council issued a final EHC Plan for Y.

Ms X’s complaint

27. Ms X initially complained to the Council in April 2022 about its failure to update Y’s EHC Plan but did not receive a response to this.
28. In April 2023, Ms X contacted the Ombudsman who contacted the Council. The Council said it would put Ms X’s complaint through its complaints process and issue Ms X with a response by 23 May 2023.
29. On 7 August 2023, the Council provided Ms X with its stage one response. The Council acknowledged it had not adequately updated Y’s EHC Plan since it issued this and apologised for its lack of response to her communication. The Council said it had now issued a draft EHC Plan for Y.
30. On 16 August 2023, Ms X responded and said the Council had failed to review her child’s EHC Plan and their current EHC Plan was dated March 2018.
31. The Council provided its response at stage two on 1 September 2023. The Council said it had been in contact with Ms X to ensure Y’s EHC Plan was fully updated. The Council said it sought advice from agencies involved with Y and would meet with Ms X to discuss any gaps in the draft EHC Plan. After it received the information back from agencies involved with Y it would issue a revised draft EHC Plan.
32. Ms remained dissatisfied and asked the Council to consider her complaint at the final stage of its procedure on 25 September 2023.
33. The Council provided its final response on 4 October 2023. The Council said it had previously provided an explanation for not updating Y’s EHC Plan. The Council acknowledged it had not told Ms X how to progress her complaint if she was unhappy with the stage one response.

Analysis

34. As stated above I have only investigated matters from March 2022 onwards.
35. Ms X contacted the Council in March 2022 and asked it to update Y’s EHC Plan. The Council did not do anything until July 2023 when it decided to keep Y’s current provision and review this at the next annual review. This was fault. The Council had in previous years agreed to amend Y’s EHC Plan and did not complete the amendments, so it would have been appropriate for the Council to urgently review Y’s EHC Plan at this stage.
36. When the Council did carry out an annual review in February 2023, it did not write to Ms X to tell her it was going to amend Y’s EHC Plan until July 2023, some five months later. This was fault. The law is clear that when a Council proposes to amend an EHC Plan it must send the parent an amendment notice within four weeks of the annual review meeting and the final Plan within 12 weeks.
37. After telling Ms X it was going to amend Y’s EHC Plan in July 2023, the Council sent a draft Plan in August 2023 but then also sought advice from agencies involved with Y for advice. It is not clear why the Council did not do this previously as part of the annual review.
38. In November 2023, the Council decided to issue a further draft EHC Plan for Y given Y was due to start post 16 education the following September. After issuing this draft Plan there were further delays which ultimately resulted in a final Plan not being issued until July 2024, four months after a post 16 phase transfer EHCP should have been issued.
39. Overall there has been significant fault by the Council as it has not updated Y’s EHC Plan for a long time. There has also been large gaps in the Council’s communication with Ms X. This has caused significant injustice. Ms X has experienced severe distress and uncertainty for a prolonged period of time as she considered her child’s EHC Plan was out of date. She also could not be sure whether her child would have received additional support had the Council properly reviewed and updated their EHC Plan.
40. Ms X has not been able to challenge the content of the Plan through the SEND Tribunal as the Council had not provided her with a final EHC Plan to appeal. This is a significant injustice to Ms X as she clearly did not think the current EHC Plan was fit for purpose and could not appeal any of the draft Plans the Council issued. By not issuing a final EHC Plan, Ms X could not effectively challenge the content of this.
41. The Council was also at fault for its complaint handling. Ms X tried to complain in April 2022 but did not receive a response. This was fault. After Ms X contacted the Ombudsman, the Council told the Ombudsman it would provide a stage one response by 23 May 2023, however it did not do so until 7 August 2023. This was fault. The Council also did not properly explain to Ms X how to progress her complaint at stage one.
42. This has caused injustice to Ms X. Ms X felt she had no alternative but to complain to the Ombudsman and did not feel her concerns about her child’s EHC Plan were being listen to or addressed. Had the Council processed her complaint in 2022, it could have tried to resolve things for Ms X. This was a missed opportunity by the Council.

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Agreed action

43. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for not updating Y’s EHC Plan over a significant period of time and for its failures in complaint handling. The Council should have regard to our guidance on making an effective apology.
• Pay Ms X £1,000 to recognise the unavoidable distress and uncertainty caused to her as a result of the faults by the Council in failing to update her child’s EHC Plan.
• Pay Ms X £500 to recognise the loss of opportunity and frustration caused to her as a result of not being able to exercise her appeal right to challenge the content of her child’s EHC Plan.
• Pay Ms X £500 to recognise the time and trouble she experienced in bringing her complaint to the Council.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation and found the Council was at fault and this caused significant injustice. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman