Summary: Mr X complained about the process the Council followed when completing the annual review of Ms Y’s Education, Health and Care Plan. We find the Council at fault for missing statutory deadlines and for not keeping Mr X updated throughout the process. The Council has agreed to apologise to Mr X and Ms Y, make a payment to recognise the injustice caused, and act to prevent recurrence.

The complaint

1. Mr X complains the Council failed to follow the correct process when reviewing Ms Y’s Education, Health and Care (EHC) Plan and missed statutory deadlines. Mr X says he experienced repeated issues with the Council, and this has caused him distress and uncertainty.

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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. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
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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How I considered this complaint

5. I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
6. 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 law and policy

7. A young person with special educational needs (SEN) may have an EHC Plan. This sets out the young person’s needs and what arrangements should be made to meet them.
8. The process for reviewing and amending EHC Plans is set out in legislation and government guidance. Councils must review EHC Plans once a year, and the annual review must take place within 12 months of the date of the previous EHC Plan.
9. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the Council. Following the meeting, the school or college sends the review paperwork to the Council. The second stage of the annual review is the Council’s decision notice. Within four weeks of the meeting, the Council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 20154 and SEN Code paragraph 9.176)
10. 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 (an amendment notice, also known as a draft plan) providing details of the proposed amendments, including copies of any evidence to support the proposed changed. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code Paragraph 9.194). It must do so ‘without delay’.
11. 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 existing EHC Plan and amendment notice to the parents. (Section 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196)
12. Caselaw has established that when a Council is amending an EHC Plan, it should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended plan.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s decision to cease their child or young person’s EHC Plan. Parents can also appeal the special educational provision, or the school named in the EHC Plan. Parents can only appeal the content of an EHC Plan, including the school named, once a Council issues a final plan.

What happened

14. Ms Y has SEN and her education is supported by an EHC Plan. In the school year 2022/23 Ms Y was attending a college. Ms Y’s EHC Plan at that time named her college and provided for additional adult support and differentiated work to be provided by her college. It also provided for Occupational Therapy (OT) advice to provide a teaching programme for her teachers.
15. Ms Y’s college held an annual review for her on 21 April 2023.
16. The four-week deadline for the Council to let Ms Y know if it intended to amend, maintain, or cease her EHC Plan passed on 19 May.
17. Mr X complained to the Council explaining the EHC Plan review was now being delayed by failures at the Council.
18. The Council responded to Mr X’s complaint, explaining it did not know the exact date of Ms Y’s EHC Plan annual review, but it was sorry if deadlines had been missed. The Council said it would provide a decision on whether to amend, maintain or cease Ms Y’s EHC Plan by 23 June.
19. On 22 June the Council wrote to Ms Y to let her know it had decided to amend her plan. This was around five weeks after the deadline to do so had passed.
20. The Council then shared a draft amended EHC Plan with Ms Y on 5 July. Mr X provided his comments on this two days later.
21. Mr X then asked the Council to reconsider his complaint. He said the Council’s SEN team had provided poor service to Ms Y and not given her the right level of support.
22. The 12-week deadline to issue a final amended plan passed on 14 July.
23. The Council then responded to Mr X’s complaint. The Council agreed it has missed statutory timescales to provide a final amended EHC Plan for Ms Y which it said was in part due to unexpected staff absence. The Council apologised for the delays and offered to pay Mr X £100 in recognition of the time and trouble he had spent pursuing the matter.
24. The new school term started on 1 September.
25. The Council issued a final amended plan for Ms Y on 6 September. This was around eight weeks after the deadline to do so had passed.
26. The new EHC Plan named Ms Y’s college and provided for differentiated work, a key staff member, and additional adult support. It also provided for four 45-minute Speech and Language Therapy (SALT) sessions per term and two 45-minute OT sessions per term.

Analysis

27. The annual review of Ms Y’s EHC Plan took place on 21 April 2023. If the Council completed this in line with statutory time limits, Ms Y’s EHC Plan would have been finalised by 14 July 2023. However, the Council did not finalise Ms Y’s EHC Plan until 6 September 2023. This is fault.
28. The EHC Plan was finalised within a few days of the new school term starting, so any loss of provision as a result of the delay would have been minimal. However, the delays caused uncertainty and distress to Mr X, which is injustice.
29. Mr X had to spend a considerable amount of time chasing the Council for updates. There was also a period of delay caused due to staff absence where no action was taken. This is fault and caused further distress and uncertainty for Mr X, which is injustice.

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Agreed action

30. To remedy the injustice identified above, the Council has agreed to carry out the following actions:
31. Within one month:
• Provide Mr X and Ms Y with a written apology for the injustice identified above;
• Pay Mr X £200 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to issue Ms Y’s final amended EHC Plan in line with the statutory timescales: and
• Pay Mr X £100 to recognise the additional distress and uncertainty caused by the Council’s failure to ensure he was regularly updated throughout the process.
32. Within three months:
• Develop and implement a process to ensure EHC Plan reviews continue to progress and meet statutory time limits even when faced with staff absence.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I find the Council at fault for failing to complete Ms Y’s EHC Plan review in line with statutory time limits and for failing to keep Mr X updated throughout the process. The Council accepted my recommendations, and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman