Summary: Ms X complained the Council provided poor communication about her child’s Education, Health and Care Plan reviews and failed to complete annual reviews in the correct timescales. We found fault with the Council failing to meet the statutory timescales by 16 weeks and for poor communication with Ms X. The Council has already apologised for this fault and outlined how it will improve its service moving forward. We do not consider the Council needs to take further action to address this fault.

The complaint

1. Ms X complained the Council provided poor communication about her child’s Education, Health and Care Plan reviews and failed to complete annual reviews in the correct timescales.

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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 future 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 unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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)
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 have and have not investigated

8. I am investigating Ms X’s complaint about the Council’s actions from 22 September 2022 to 25 July 2023. Matters outside this timeframe are outside the Ombudsman’s jurisdiction to consider.
9. Ms X brought her complaint to the Ombudsman on 22 September 2023. This means, we can investigate matters since 22 September 2022. Matters before this date are outside the Ombudsman’s jurisdiction as Ms X would have taken more than 12 months to bring such issues to our attention. I have seen no good reasons why Ms X could not have brought her complaint to the attention of the Ombudsman sooner.
10. The Ombudsman cannot investigate matters which have been brought before the tribunal, or when a person has an appeal right available to the tribunal. Ms X gained an appeal right to the tribunal on 25 July 2023 and exercised this right. Any matters about Ms X’s child’s Education, Health and Care Plan and associated education are outside the jurisdiction of the Ombudsman from 25 July 2023 until conclusion of the tribunal process.
11. We cannot investigate the Council naming a mainstream school in Ms X’s child’s Education, Health and Care Plan. The contents of an Education, Health and Care Plan were appealable to the SEND Tribunal. Having appealed this matter to the SEND Tribunal, the SEND Tribunal maintained that Ms X’s child should attend a mainstream school. This is a decision outside the jurisdiction of the Ombudsman.
12. The Council handled Ms X’s complaint in 2023 while the tribunal concluded in July 2024. Ms X would need to raise a new complaint with the Council to consider any issues with her child’s education or Education, Health and Care Plan since July 2024 before the Ombudsman could consider this.

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How I considered this complaint

13. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
14. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

15. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
16. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
17. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
18. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
19. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
20. 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
21. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
22. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final 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. (s22 (3) & (4) SEND Regulations 2014)
23. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
24. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Council complaints process

25. The Council operates a two stage complaints process.
26. At Stage 1 the Council says it will acknowledge a person’s complaint within ten working days and provide a complaint response within ten working days of the acknowledgement.
27. If a person is dissatisfied with the Council’s Stage 1 complaint response they can request consideration of their complaint at Stage 2. The Council says it will acknowledge a person’s request for a Stage 2 complaint response within five working days and provide a complaint response within twenty working days of the acknowledgement.

What happened

28. In September 2022, Ms X’s child, who I shall refer to as Y, started secondary school. Y had an EHC Plan.
29. On 3 February 2023, Y’s school completed an annual review meeting for Y’s EHC Plan and sent the paperwork to the Council. Y’s School and Ms X requested amendment of Y’s EHC Plan over the placement named in Section I. Y’s school completed the paperwork, including Ms X’s correct email address, and sent this paperwork to the Council.
30. On 6 March 2023, the Council sent a letter to Ms X advising it would not amend Y’s EHC Plan. The Council detailed Ms X’s appeal rights to the SEND Tribunal about its decision not to amend. The Council sent this to Ms X’s incorrect email address but also sent this to her separated partner.
31. Ms X contacted the Council on 27 March 2023 to dispute the Council’s decision to not amend Y’s EHC Plan.
32. On 13 June 2023, Ms X made a formal complaint to the Council. Ms X complained about the Council’s failure to amend her child’s EHC Plan following the annual review in February 2023.
33. On 22 June 2023, the Council issued a notification letter to Ms X advising it would amend Y’s EHC Plan. The Council sent this to Ms X’s correct email address on 23 June 2023.
34. The Council issued its Stage 1 complaint response on 26 June 2023. The Council said:
• It made the incorrect decision on 6 March 2023 in deciding not to amend Y’s EHC Plan following the annual review meeting. The Council apologised for this error and confirmed it had now decided to amend Y’s EHC Plan.
• It accepted Ms X had experienced poor communication with its SEND Team since March 2023 and apologised for this.
• The Council detailed how it intended to improve its service moving forwards.
35. On 5 July 2023, the Council issued a draft EHC Plan for Y to Ms X’s correct email address.
36. Ms X sought consideration of her complaint at Stage 2 of the Council’s complaints process on 13 July 2023.
37. On 25 July 2023, the Council issued a final EHC Plan for Y and detailed Ms X’s appeal right to the SEND Tribunal. The Council sent this final EHC Plan to the incorrect email address.
38. On 10 August 2023, the Council provided its Stage 2 complaint response to Ms X. The Council said:
• It had noted down Ms X’s incorrect email address in 2022 which had resulted in it sending correspondence to the wrong email address earlier in 2023. The Council said it had now amended Ms X’s email address to ensure all future correspondence will go to the correct email address.
• It accepted it delayed in amending Y’s EHC Plan following the annual review meeting on 3 February 2023 and sent the subsequent final EHC Plan to the incorrect email address. The Council apologised for this delay and the impact on Ms X.
39. Ms X approached the SEND Tribunal with her complaint who lodged this with the Council on 8 November 2023.

Analysis

EHC Plan review process

40. Following the annual review meeting held by the school on 3 February 2023, the Council had four weeks to issue a notification letter to Ms X. This notification letter need to advise of its intention to maintain, cease or amend Y’s EHC Plan. This meant the Council had until 3 March 2023.
41. The Council issued the notification letter of its intention to maintain Y’s EHC Plan on 6 March 2023. The Council issued this letter three days late, this was fault.
42. In the Council’s Stage 1 complaint response it acknowledged it made an incorrect decision on 6 March 2023 when it sent the letter advising it would maintain Y’s EHC Plan. The Council has accepted it should have issued a notification to amend on this date. Given this error, the Council only issued the correct notification letter on 22 June 2023. This extends the Council’s fault from three days to 16 weeks delay outside the statutory timescales.
43. Following the notification to amend letter issued on 22 June 2023, the Council issued the final EHC Plan on 25 July 2023. The Council issued this final EHC Plan within the eight-week timescale from the correct notification letter; the Council acted correctly and I do not find fault.
44. The Council’s delay of 16 weeks would have caused Ms X frustration in being able to bring her concerns to the attention of the SEND Tribunal sooner. While this delay would have caused frustration, this has had no greater impact. This is because the SEND Tribunal dismissed Ms X’s appeal and did not require changes to Y’s EHC Plan. The Council has apologised for its error in issuing the incorrect notification letter and for its delays. I do not consider a further award is appropriate to reflect the injustice caused through the Council’s fault.

Complaints and communication

45. The Council has already accepted its fault in the Stage 2 complaint responses for using the incorrect email address obtained from the 2022 documentation, instead of using the correct email address in the 2023 documentation.
46. While this was fault, this did not cause a significant personal injustice to Ms X. Ms X has showed through her contacts with the Council that she still received the correspondence issued to the incorrect email address.
47. Since Ms X made her Stage 1 complaint on 13 June 2023, the Council had until 27 June 2023 to issue its Stage 1 complaint response. The Council did so on 26 June 2023, meeting the Stage 1 complaint timescales.
48. Ms X sought escalation to Stage 2 of the Council’s complaints process on 13 July 2023. This meant the Council had until 10 August 2023 to issue its Stage 2 complaint response. The Council issued the Stage 2 complaint response on 10 August 2023.
49. The Council has shown it handled Ms X’s complaints at both Stage 1 and Stage 2 within the timescales detailed in its complaints process. I cannot find fault with how the Council handled Ms X’s complaint.
50. Within the Council’s Stage 1 complaint response it apologised to Ms X for the poor communication with its SEND Team. The Council also detailed how it would improve its service moving forwards. An apology from the Council is suitable to address the poor communication from the Council over this time period. I do not consider further action is needed from the Council.

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Final decision

51. I have completed my investigation because the Council has already provided a suitable remedy for the injustice its fault caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman