• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complains on behalf of her son, Y. Mrs X says the Council failed to provide a finalised Education Health and Care Plan after an annual review and failed to provide a completed Education Health and Care Plan for phased transfer. Mrs X says the matter has caused her distress and uncertainty. We have found fault in the actions of the Council for failing to issue a final Education Health and Care Plan within the correct timescales. The Council has agreed to issue the plan, pay Mrs X a financial remedy and issue an apology.

The complaint

1. Mrs X complains on behalf of her son, Y. Mrs X says the Council failed to provide a finalised Education Health and Care (EHC) Plan after an annual review and failed to provide a completed EHC Plan for phased transfer.
2. Mrs X says the matter has caused her distress and uncertainty.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. 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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How I considered this complaint

8. I have considered the information provided by Mrs X and have also discussed the complaint over the telephone with her. I have also considered the information provided by the Council.
9. Both Mrs X and the Council have had the chance to comment on my draft decision. Any comments have been considered before a final decision was issued.

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What I found

10. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.

Reviewing EHC Plans

11. 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.
12. 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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.
15. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Key transfers pre-16

16. The council must review and amend an EHC Plan in enough time before a child or young person is moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

What happened

17. The Council issued a final EHC Plan for Y in February 2023. The Council then held an annual review meeting in July 2023.
18. Y is due to start Key Stage 3 (KS3) in September 2024.
19. Mrs X complained to the Council in November 2023. She explained she had concerns the Council would not issue an EHC Plan naming the setting for Y’s transition into KS3 within the statutory timescales.
20. The Council responded to Mrs X’s complaint in February 2024 and apologised for the delay in contact. The council explained there had been staff changes and staff were dealing with high caseloads and a large volume of correspondence.
21. The Council said it was in the process of issuing a proposed amended EHC Plan for Y.
22. The Council completed Y’s Year Six annual review in March 2024.
23. The Council issued a proposed amended EHC Plan to Mrs X in May 2024, but I understand a final plan has not yet been issued.

Analysis

Reviewing EHC Plans

24. The Council held an annual review meeting for Y in July 2023 and should have told Mrs X about its decision to maintain, amend or discontinue the EHC Plan within four weeks. I have not been able to see the Council did so which is fault.
25. The Council should have issued Y’s amended EHC Plan within 12 weeks of the annual review meeting. This did not happen and is fault.
26. The delay in issuing a decision following the review meeting would have caused Mrs X frustration and uncertainty.

Key transfers pre-16

27. Mrs X complained to the Council in November 2023 and reminded it Y was due to transition into KS3 in 2024. Mrs X also warned the Council she had concerns it would miss the required date of 15 February to complete a review and issue an amended EHC Plan for Y.
28. I cannot see the Council completed the review and issued an amended EHC Plan by 15 February as set out in the regulations where a transfer of key stage is due to take place. This is fault.
29. The Council issued a proposed amended EHC Plan to Mrs X in May 2024.
30. The delay in completing the transfer review and issuing an amended EHC Plan would have worsened Mrs X’s frustration and uncertainty. Especially when she wrote to the Council to remind it of its duties surrounding this well in advance.
31. I have not seen that a Final EHC Plan has been issued. As such Mrs X’s appeal rights have been delayed which would cause further frustration.

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Agreed action

32. Within one month of a final decision the Council has agreed to:

• Write to Mrs X to apologise.
• Pay Mrs X £1,000 to recognize the frustration and uncertainty caused by the delay in issuing Y’s EHC Plan. This is calculated at roughly £100 per month from the point the EHC Plan should have been issued. The Council should continue to pay Mrs X £100 per month until the final EHC Plan is issued.
• Issue Y’s Final EHC Plan to Mrs X.

33. Within two months of a final decision the Council should:

• Provide, if already in existence, or produce a plan detailing what action it is taking to address the delays in issuing EHC Plans and take this plan to the relevant scrutiny committee or panel for this issue.

34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have found fault in the actions of the Council for failing to issue a final Education Health and Care Plan within the correct timescales.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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