Summary: Mr X complained about the Council’s delay when reviewing his Education, Health and Care Plan. We found the Council to be at fault. It did not circulate information before the scheduled review meeting and took too long to tell Mr X his Plan would be amended. This caused Mr X avoidable distress and anxiety. To remedy this injustice, the Council has agreed to apologise, make a symbolic payment and take action to improve its timeliness.

The complaint

1. Mr X complains about delay in issuing a notice of amendment and draft Education, Health and Care Plan following an annual review in April 2023.
2. This caused distress and uncertainty.
3. Mr X is represented by his mother, Mrs Q in making this complaint.

Back to top

The Ombudsman’s role and powers

4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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)

Back to top

How I considered this complaint

7. I spoke to Mrs Q about the complaint and considered the written information she provided.
8. I considered the Council’s response to my enquiry letter, including its case records.
9. I considered the relevant law and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before I made a final decision.

Back to top

What I found

Special educational needs (SEN)

Education, Health and Care Plans

11. A child or young person with SEN 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.

Annual reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. A review meeting must take place. The process is only complete when the council issues a decision about the review.

13. 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) 

14. 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)
15. Councils must seek advice and information prior to the meeting and send any advice and information gathered to all those invited at least two weeks before the meeting. (SEN Code, paragraph 9.177)

What happened

16. Mr X is a young adult with SEN. He has an EHC Plan. An annual review (“the Review”) was due to take place in March 2023.
17. The Council did not circulate any information two weeks prior to the Review, as it was required to do.
18. Mrs Q felt the Review should not go ahead without having the opportunity to consider any reports, so she asked the Council to postpone it. The case worker apologised for not sending information before the Review. She accepted it was an oversight on her part.
19. The Review took place a month later.
20. Mr X’s physiotherapist did not provide a report, as she had been asked by the Council to do.
21. After the Review, the case worker contacted the physiotherapist. In response, she said there had been no changes to Mr X’s provision and so the current service would continue. She explained she would not produce a new report if there were no changes to be made. This had already been explained to Mrs Q verbally.
22. The Council told Mr X it intended to amend his EHC Plan in August 2023. The final Plan was issued shortly afterwards.
23. Mrs Q complained to the Council about this delay. The Council accepted there was fault and apologised. It explained the delay was caused by the lack of physiotherapy report, despite the Council having requested it three times.
24. Mrs Q did not feel it was appropriate for the Council to attribute the delay to the physiotherapist because she has responded the day after the Review.
25. This prompted her complaint to the Ombudsman.
26. Mrs Q wanted some reassurance that the Council had robust procedures in place to ensure statutory timescales were complied with in future and the Council took accountability for its actions, without trying to unfairly blame another service. She also felt the Council failed to acknowledge the avoidable distress and anxiety the delay caused Mr X.
27. In its response to the Ombudsman, the Council explained the delay following the Review was caused by high volumes of casework.

Analysis

28. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance.
29. The law says information should be circulated to attendees at least two weeks before the review. The caseworker has accepted she was at fault for not doing so. The postponement of this Review impacted on the EHC Plan review timetable.
30. I accept the Council was not responsible for the delayed physiotherapy report. The case records show the Council requested this in advance of the Review and sent two reminders.
31. But this did not impact on the delay that happened after the Review. The Council should not have claimed it did in its complaint response to Mrs Q. The Council should have told Mrs Q the real reason for the delay. This failure to be transparent about this matter was fault. I understand why this led Mrs Q to question whether the Council had a proper grasp of what actually happened.
32. The Council has also already accepted it was at fault for failing to issue the draft EHC Plan within four weeks from the date of the Review. Mr X had to wait approximately eleven weeks longer than he should have done to find out what the Council intended to do.
33. Overall, the Council took approximately two and a half months longer that it should have done to issue the final Plan. This includes the delay of four weeks, caused by the avoidable postponement of the Review because the Council did not circulating the paperwork in time. This delay was fault.
34. From my discussion with Mrs Q, I am satisfied these faults caused Mr X frustration and anxiety. This injustice requires an additional remedy to the apology already offered by the Council.

Back to top

Agreed action

35. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise in writing to Mr X and Mrs Q.
2. Pay Mr X £250 as a symbolic payment to acknowledge his distress and frustration caused by the delays in the EHC Plan review process.
3. Provide relevant staff with a copy of this decision to raise awareness of the importance of meeting statutory deadlines and preparing for annual reviews.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have completed my investigation. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman