Summary: Mr X complained the Council delayed issuing an amended education, health and care (EHC) plan for his daughter Y for over 12 months after an annual review in December 2021, and failed to secure the specialist provision set out in her plan. Mr X also complained the Council has failed to improve its service after it previously upheld a similar complaint. The Council delayed in issuing an amended EHC plan for 14 months which caused Mr X frustration. The Council has already offered Mr X an appropriate remedy.

The complaint

1. Mr X complained the Council delayed issuing an amended education, health and care (EHC) plan for his daughter Y for over 12 months after an annual review in December 2021, and failed to secure the specialist provision set out in her plan. Mr X further complained the Council failed to improve its service after it previously upheld his complaint about its failure to issue amended EHC plans for his daughter in 2018, 2019 and 2020. Mr X states this has caused them both frustration and distress.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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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What I have and have not investigated

7. Mr X complained about matters that began in 2021. Mr X followed this matter up with the Council and believed it was taking action to rectify the issue. He complained to us within 12 months once he realised that the problem was ongoing. So I have investigated the Council’s actions since December 2021.

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How I considered this complaint

8. I read the documents Mr X provided and discussed the complaint with him on the phone.
9. I considered the documents the Council provided in response to my enquiries.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

11. A child with special educational needs 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.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Reviewing an EHC plan

13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
14. 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)
15. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
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. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

Securing the provision in the EHC plan

18. 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.
19. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

20. Y is an autistic young lady who lives at home with her parents and siblings. The Council first issued an EHC plan setting out the specialist provision Y needed in December 2017.
21. In the autumn term of 2021 Y was 14 and in year nine at high school, and attended school A.

Background information

22. Mr X complained to the Council in 2021 about Y’s EHC plan reviews.
23. The Council responded to Mr X at stage two of the complaint procedure in 2021. It upheld his complaints and accepted it had delayed completing the annual reviews for Y’s EHC plan in 2018 and 2019 and had not finalised the EHC plan within statutory timescales, which delayed Mr X’s appeal right to the tribunal. The Council identified poor communication with the school as being partly responsible for the delay. It apologised but did not identify any recommendations for improving its own service as a result of Mr X’s upheld complaint.

2021 onwards

24. The Council issued an amended final EHC plan for Y in June 2021 and told Mr X of his right to appeal to the SEND tribunal if he disagreed with the content of the plan. The plan named school A and set out the support Y needed which included the methods and strategies class teachers should use to support Y’s learning in the classroom. It stated Y should develop her touch-typing skills and have regular opportunities to discuss her feelings with a designated member of staff such as an ELSA (emotional literacy support assistant).
25. The school held an annual review meeting for Y’s EHC plan on 10 December 2021. By this time Y was in year 10.
26. The Council wrote to Mr X at the beginning of January 2022 and said it intended to amend Y’s EHC plan and it would send him a draft plan for his comments.
27. Mr X complained to the Council. He said he had not received Y’s finalised EHC plan following the annual review in December 2021.
28. The Council apologised and issued the draft amended EHC plan for Mr X’s comments. It said it would issue a final amended EHC plan within eight weeks of the date of the letter. Mr X agreed the Council could close his complaint.
29. The Council said it issued a further amended plan in May 2022 for Mr X’s comments.
30. In December 2022 Y was in year 11 and the annual review of her EHC plan was due.
31. School A held the annual review meeting on 3 February 2023.
32. The Council said it issued two draft amended plans for Y following the annual review in February and March 2023.
33. Mr X contacted the Council in March 2023 and asked it to escalate his complaint. He said the Council had not made improvements in its EHC review process since his previous upheld complaint. He said it failed to review and amend Y’s EHC plan in line with the guidance in December 2021 and December 2022. Mr X also stated Y’s EHC plan was not accurate and she was not receiving the provision in her plan. He said Y had not been receiving ELSA support and should have been provided with a personal laptop and specialist software.
34. The Council issued a final amended EHC plan for Y on 31 March 2023 and told Mr X of his right to appeal to the SEND tribunal if he disagreed with the content of the plan.
35. The Council contacted school A and then responded to Mr X’s complaint about the laptop and ELSA. It confirmed Y had access to a laptop in school, but she rarely used it. It also explained that Y was accessing ELSA by seeking the support herself during break times and during the day. It told Mr X if he had any further complaint about those matters he should direct them to the school to consider.
36. The Council responded to Mr X’s other complaints at stage two at the end of April 2023. It said:
• it should have issued a final plan within four weeks of issuing the draft in 2021 but did not do so. It had already apologised;
• the annual review was delayed from December 2022 to February 2023;
• it had not improved its service following Mr X’s upheld complaint about the same matters in 2021;
• it recognised the distress and frustration caused by the delay and Mr X’s delayed appeal rights to the SEND tribunal;
• it apologised and offered him £550 as a symbolic payment for the injustice caused.
37. Dissatisfied with the Council’s response Mr X complained to us.
38. In response to my enquiries the Council said the delay in the review process was caused by a combination of unprecedented demand on the service and some staff vacancies.

My findings

39. The code states that a council should issue a draft amended plan, and then a final plan within 12 weeks of an annual review meeting. When the Council reviewed Y’s plan in December 2021 it should have issued the final amended plan by 3 February 2022. It did not issue the draft until the end of April when Mr X complained, and did not issue a final amended plan at all. That was fault. It caused Mr X frustration and uncertainty about whether the plan was appropriate and denied him his appeal rights to the SEND tribunal.
40. The Council should have completed a further annual review in December 2022. The annual review meeting was not held until February 2023 which was a delay of eight weeks. That was fault and caused Mr X frustration. The Council then issued the draft and final amended plan within the statutory timescales, and in line with the deadline of 31 March for transition EHC plans.
41. I do not find that the delay identified in the two paragraphs above caused Y an injustice. This is because the 2021 and 2023 plan contained broadly the same provision in section F. Mr X did not appeal the content of the 2023 plan to the SEND tribunal. Therefore, Y was not disadvantaged by an out-of-date plan.
42. Mr X complained the provision specified in the plan was not in place for Y. He stated Y had not received a personal laptop and was not receiving the ELSA support. Y’s EHC plan in place at the time did not specify Y should receive a laptop, or how the ELSA support should be provided or structured. The Council made enquiries with school A and established the provision was in place in line with the EHC plan and informed Mr X. There was no fault in the Council’s actions.
43. The Council had upheld Mr X’s complaints about delay in the EHC process in previous years and identified the cause as poor communication with the school and staff shortages, and did not make any service improvement recommendations. In this case the Council stated the delay was caused by unprecedented pressure and staff vacancies. The fault is similar in both cases however whilst the repeated delay is frustrating for Mr X, there is no evidence of additional fault in the Council’s actions as there is no evidence it failed to implement any specific service improvements.
44. The Council has apologised for the injustice caused to Mr X by the delay. It has also offered Mr X a symbolic payment of £550 to recognise that injustice, although Mr X has not yet accepted that payment. That is appropriate and in line with our guidance on remedies.
45. The Council has already taken action to increase its Special Educational Needs Service capacity. This was agreed at a Council Cabinet meeting on 25 July 2023, the details of which are available on its website. I have therefore not made any additional service improvement recommendations on that point.

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Final decision

46. I have completed my investigation. I found fault causing injustice and the Council has already taken action to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman