Summary: Mrs X complained the Council did not complete her child, Y’s November 2022 annual review and delayed issuing Y’s amended Education, Health and Care (EHC) Plan following delays after a later annual review and reassessment. The Council was at fault for not completing Y’s November 2022 annual review, and delays with Y’s subsequent annual review, reassessment and delay in issuing Y’s final amended EHC Plan. The Council will apologise to Mrs X for the distress, frustration, uncertainty and time and trouble caused by the delays and pay her a symbolic payment. The Council has already agreed to act to improve its services.

The complaint

1. Mrs X complained the Council did not complete an annual review for her child, Y, in November 2022 and delayed amending Y’s Education, Health and Care (EHC) Plan following an annual review in September 2023 and a later reassessment. Mrs X said Y still did not have an EHC Plan which related to Y’s current needs and it had delayed her rights of appeal to the special educational needs and disabilities (SEND) tribunal. Mrs X also complained about poor complaints handling. Mrs X said she was put to avoidable time and trouble contacting the Council and it affected her mental health.

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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. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND tribunal in this decision statement.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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.

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What I have and have not investigated

9. Mrs X complained to the Ombudsman in mid-February 2024. She said the Council did not complete Y’s November 2022 annual review. This part of Mrs X’s complaint is late by approximately three months. However, there are good reasons to investigate this now as it is relevant to the subsequent events that are not late. I have investigated from November 2022 until the Council issued Y’s final amended Education, Health and Care (EHC) Plan in late September 2024.

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How I considered this complaint

10. I considered:
• the information Mrs X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.

Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

11. 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. Section B sets out the child’s special educational needs. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.
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 EHC Plans

13. 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.
14. Council’s can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted with the statutory timescales.
15. 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)
16. 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. The Council should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.

Reassessments of EHC Plans

17. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
18. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Council complaints procedure

19. The Council’s complaints procedure is as follows:
• at stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days; and
• if the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

20. Y lives with their family and attended a mainstream school, School 1. Y has complex special educational needs and high level of support needs and has had an Education, Health and Care (EHC) Plan since early 2020.
21. In late November 2022, School 1 held Y’s annual review. This was attended by Mrs X, School 1 and the specialist teaching and learning service (STLS). A report was also submitted by a speech and language therapist (SALT). School 1 recommended Y’s EHC Plan was amended because of significant changes needed to Sections B and F of Y’s Plan. The Council said it received the annual review paperwork in mid-December 2022 but did not provide Mrs X with a decision to maintain, amend or discontinue Y’s EHC Plan.
22. In mid-September 2023 School 1 arranged and held another annual review for Y. The review was attended by Mrs X, School 1, SALT and STLS. Reports were attached from SALT, STLS and the Communication assisted technology (CAT) team. It was agreed extensive changes were needed to Y’s EHC Plan because of changes in Y’s needs and how Y should be supported. Recommendations were made to the Council to make amendments to Y’s EHC Plan and increase Y’s provision.
23. In mid-November 2023 Mrs X complained to the Council that it had not issued a decision following Y’s November 2022 or September 2023 annual reviews. She said the Council was in breach of its legal duty and timescales and asked the Council for its decision. Mrs X said Y’s EHC Plan did not include Y’s current needs or provision and because of Y’s complex needs Y’s Plan needed to be accurate and up to date. The Council acknowledged Mrs X’s complaint a day later.
24. In early December 2023 the Council said it received the paperwork from Y’s September 2023 annual review.
25. In early January 2024 the Council sent Mrs X an amendment notice that set out the changes discussed at the annual review meeting. The same day the Council sent Mrs X a copy of Y’s draft EHC Plan for her comments.
26. Four days later Mrs X emailed the Council and gave her initial comments on Y’s draft EHC Plan. She was concerned large sections of Y’s EHC Plan were being removed without written consent from professionals and the draft Plan did not include a large number of changes recommended at Y’s September 2023 annual review. Mrs X said if large amounts of content from Y’s EHC Plan were removed the Council would need to conduct a full reassessment.
27. In late January 2024 the Council sent Mrs X two emails apologising for the stage 1 response delay and explained this was because of a backlog of complaints.
28. In early February 2024 Mrs X emailed the Council and said her mid-November 2023 complaint had still not been resolved and asked for her complaint to be escalated to stage 2.
29. In mid-February 2024 the Council sent Mrs X its stage 1 response. It apologised for delays in reaching a conclusion with Y’s EHC Plan following the 2023 annual review. The Council also apologised for the delay in issuing its stage 1 response. It said the delays were because of a significant increase in EHC Plans and it was taking urgent steps to improve its service and communication with parents.
30. Two days later Mrs X emailed the Council she said she was unhappy with the Council’s stage 1 response. She said it did not respond to Y’s annual review from November 2022 and the stage 1 response included inaccuracies. Mrs X escalated her complaint to stage 2. A day later Mrs X received a stage 2 acknowledgement email from the Council and said a senior officer would respond by mid-March 2024. In mid-March 2024 Mrs X emailed the Council and said she had not received the stage 2 response by the agreed deadline.
31. The Council discussed with Mrs X about completing a reassessment of Y’s needs to update their EHC Plan.
32. In early April 2024 Mrs X emailed the Council and said she had still not received her stage 2 response or a formal decision about Y’s reassessment which stopped her right to appeal.
33. Two days later the Council sent Mrs X its stage 2 response. The Council said there were ongoing conversations between the Council SEND team and Mrs X about Y’s amended final EHC Plan and the team were trying to ensure it was reflective of Y’s needs. It apologised for inaccuracies in the stage 1 response. It said the SEND team would be in contact with Mrs X about Y’s reassessment.
34. In early April 2024 the Council decided to reassess Y’s EHC Plan and sent Mrs X a decision letter nine days later in mid-April 2024.
35. In late June 2024 the Council received Y’s educational psychology (EP) report. The EP report was also sent to Mrs X after Mrs X had requested a copy. Four days later a panel agreed to issue Y’s EHC Plan but Mrs X had concerns about the contents of the EP report and asked for amendments. Y’s EP report was updated and the Council made amendments to Y’s draft EHC Plan. Mrs X chased the Council for a copy of the updated EP report and amended draft Plan. The Council sent Mrs X a new draft EHC Plan in late August 2024. The Council said some of the delay was due to officer annual leave, Mrs X said the delay was because of changes to the EP report. Seven days later Mrs X made comments on Y’s draft EHC Plan dated August 2024 and another draft Plan was sent to Mrs X.
36. In late September 2024 the Council issued Y’s final amended EHC Plan which continued to name School 1 in Section I. It also sent Mrs X her appeal rights to the SEND tribunal.

Enquiries

37. In response to my enquiries the Council:
• acknowledged it did not meet the statutory timescales for Y’s November 2022 annual review and failed to provide Mrs X with a decision which denied her right of appeal. It apologised and said it was working to ensure annual reviews were dealt with within the statutory timescales;
• apologised for the delays in completing Y’s September 2023 annual review;
• apologised for the complaint response delays and said it was making good progress in addressing the backlog of complaints with a dedicated team working only on the backlog of SEN complaints and updates had been given to the Ombudsman since the issuing of a public report in June 2023; and
• said Y had been attending School 1 that supported Y’s education and identified Y’s needs which School 1 believed was appropriate.

My findings

38. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.

Annual review delays

39. School 1 held Y’s annual review in late November 2022. The Council did not issue a decision notice on if it would maintain, amend or discontinue Y’s EHC Plan or update Mrs X. This was fault and caused Mrs X frustration, distress and uncertainty this also delayed Mrs X’s appeal rights to the SEND tribunal.
40. School 1 held Y’s annual review in mid-September 2023. The Council should have sent Mrs X a decision notice on if it would maintain, amend or discontinue Y’s EHC Plan within four weeks of the annual review meeting and by mid-October 2023. The Council said it did not receive the annual review paperwork until mid December 2023 but it should have chased this with School 1. The Council did not issue an amendment notice until early January 2024. This was a delay of 11 and a half weeks. This caused Mrs X frustration and uncertainty and also delayed her appeal rights to the SEND tribunal.
41. The Council should have issued Y’s final amended Plan within eight weeks of the amendment notice and by early March 2024 but it did not which was fault and caused Mrs X frustration and uncertainty.

Reassessment

42. The Council made a decision in early April 2024 to complete Y’s reassessment and sent Mrs X its decision letter nine days later. The Council should have completed the review within 14 weeks of its decision and by mid-July 2024. The Council did not issue Y’s EHC Plan until late September 2024 which was a delay of approximately two and a half months and was fault. This caused Mrs X frustration and meant Y was without an EHC Plan that properly identified their needs.

Overall EHC Plan delay

43. If the Council had acted without fault and acted within the statutory timescales after the late November 2022 annual review, Y’s final amended EHC Plan should have been issued by mid-February 2023. This would have been approximately 18 and a half months earlier or one academic year and one and a half terms earlier. Y’s needs were also significant because of her complex special educational needs. I cannot say whether, had the Council acted without fault, Y would have received different provision as I cannot know what the outcome of the annual reviews and reassessments would have been had they been completed earlier. The long delay caused Mrs X frustration and uncertainty if Y was receiving the correct provision.

Complaints handling

44. The Council delayed responding to Mrs X’s stage 1 complaint for 11 and a half weeks. This was fault and caused Mrs X frustration and time and trouble chasing the Council. The Council has already apologised which remedied the injustice caused.
45. The Council also delayed by approximately three weeks responding to Mrs X’s stage 2 request. This was fault and caused Mrs X frustration and time and trouble chasing the Council. The Council will apologise.

Service improvements

46. The Council has already put in place additional resources to help with the backlog of complaints. The Ombudsman has already made recommendations to this Council on similar cases including:
• reminding complaint handling staff to ensure they respond to complaints within the timescales set out in its complaints procedure;
• producing an action plan to show how it will meet statutory timescales for EHC Plan annual reviews; and
• reviewing its guidance to staff to ensure reassessments are completed on time.

On this basis no further recommendations were needed.

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Agreed action

47. Within one month of the final decision the Council will apologise and pay Mrs X £750 for the distress, frustration, uncertainty and time and trouble caused by:
1. not completing Y’s November 2022 annual review;
2. the delays in completing Y’s September 2023 annual review;
3. the delays in Y’s reassessment process;
4. the overall 18 and a half month delay in issuing Y’s final amended EHC Plan between mid-February 2023 and late September 2024; and
5. the delayed stage 2 complaint response.

The Ombudsman’s guidance on remedies recommends a payment of up to £500 for distress. But we may recommend a higher amount where the injustice was particularly severe or prolonged, as in this case where the delay was approximately one academic year and one and a half terms and Y had complex special educational needs.

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Final decision

48. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman