Summary: Mrs X complained the Council failed to complete an Education, Health and Care Plan annual review for Y within the statutory time limits. Mrs X said this caused her real stress and frustrated her appeal rights. We find the Council at fault for delays. The Council has agreed to apologise and make a payment to recognise the injustice caused.

The complaint

1. Mrs X complains about how the Council has reviewed her daughter, Y’s Education, Health and Care (EHC) Plan. Mrs X says the annual review started in June 2023 but was not completed for more than a year. Mrs X says this has caused considerable frustration 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 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. 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)
4. 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

5. I have investigated Mrs X’s complaint, as set out above from the point Y’s EHC Plan was reviewed in June 2023 up until the final amended EHC Plan was issued in July 2024. Any reference below to events that took place outside of this timeframe are for reference only.

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How I considered this complaint

6. I considered all the information Mrs X provided about her complaint. I also considered information received from the Council.
7. Mrs 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

8. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. 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.
10. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child’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’s parent 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)
11. Where a Council proposes to amend an EHC Plan, the law says it must send the child’s parent 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 changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code Paragraph 9.194). It must do so ‘without delay’.
12. Following comments from the child’s parent, 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)
13. 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.
14. 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 once a Council issues a final plan.

What happened

15. Y has SEN and her education is supported by an EHC Plan which sets out a range of ways she should be supported day to day by the staff at her school.
16. On 22 June 2023, Y’s school held an annual review of her EHC Plan. The school sent the annual review paperwork to the Council on 10 July.
17. On 14 September 2023, the Council missed the 12-week deadline to issue a final EHC Plan for Y.
18. Mrs X wrote to the Council in January 2024 to explain she still had not received an outcome for Y’s annual review. Mrs X said she had arranged for a private Educational Psychology report, which she attached, and asked the Council to consider this when finalising Y’s EHC Plan.
19. Mrs X complained to the Council in February 2024. Mrs X explained the Council was beyond the statutory time limits to issue a final EHC Plan for Y. Mrs X asked the Council to provide a final EHC Plan within five working days.
20. The Council responded to Mrs X’s complaint, apologising for the delay in completing Y’s EHC Plan annual review and said it would do so as soon as possible.
21. Mrs X responded to the Council later in February 2024 to explain she still had not received any draft EHC Plan and asked the Council to reconsider her complaint.
22. The Council called Mrs X to apologise for the delays and said it would now draft an amended EHC Plan for Y.
23. Mrs X wrote to the Council in April 2024. She said it was now 10 months since Y’s annual review, but she was still yet to receive an amended EHC Plan. Mrs X asked the Council to review and respond to her previous complaint and provide an amended EHC Plan for Y.
24. On 17 May, the Council provided Mrs X with a draft amended EHC Plan.
25. The Council responded to Mrs X’s complaint in July 2024. It apologised for the delay in responding and explained this was due to a backlog of cases. The Council also apologised for the delays in completing the EHC Plan review. The Council said it was aware of the impact delays have on people with SEN and it was working to address this and to improve its timescales.
26. The Council issued a final EHC Plan on 12 July, approximately 10 months after the deadline to do so. The EHC Plan set out how staff at Y’s school should support her day to day. It also provided for specialist equipment, such as a laptop, and sessions to help Y learn to use these. The EHC Plan provided 1:1 specialist teaching support twice per week, support to engage in joint learning, one hour of specialist selective mutism therapy per week, 30-minute school counsellor sessions weekly, and 30-minute key person mentoring sessions per week.
27. In response to our enquiries, the Council has said its SEN and Assessment Team reconfigured its service in September 2024 and now has dedicated Reviewing and Monitoring teams to ensure annual reviews are completed within statutory timescales.

Analysis

28. The annual review meeting for Y’s EHC Plan was held on 22 June 2023. If the Council had completed this process in line with the statutory time limits, the final amended EHC Plan would have been issued by 14 September 2023. The final amended EHC Plan was actually issued on 12 July 2024 approximately 10 months late. This is fault.
29. The delays caused uncertainty and distress for Y and Mrs X and delayed Mrs X’s right to appeal to the tribunal. The delays also created uncertainty around whether Y was missing out on special educational provision she would have been entitled to between September 2023 and July 2024. This is injustice.
30. The Council has now explained it has reconfigured its SEN and Assessment Team to ensure annual reviews are completed within the statutory timescales. I find this is suitable to address any ongoing issues, however it does not address the personal injustice to Y and Mrs X.

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Agreed action

31. To remedy the outstanding injustice identified above, the Council has agreed to complete the following actions within one month:
• Apologise to Mrs X for failing to complete the EHC Plan annual review within statutory time limits. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
• Pay Mrs X £1,000 to recognise the distress, frustration and uncertainty caused by the Council’s failure to complete Y’s EHC Plan annual review in line with the statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC Plan in September 2023, up to the date of the final EHC Plan in July 2024.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I find the Council at fault for failing to complete Y’s EHC Plan annual review in line with statutory time limits. The Council has 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