The Investigation

The complaint

1. Mrs A complained the Council failed to complete reviews of her children’s EHC Plans within the statutory timescales.

2. Mrs A complained the Council failed to complete EHC Plan reviews for many other children.

3. Mrs A also complained the Council failed to adhere to its complaints procedures.

4. Mrs A says the Council’s actions have resulted in her children not receiving up-to-date provision for their educational and social care needs. Mrs A says the Council’s actions have also caused her energy and effort in trying to resolve this matter with the Council.

Legal and administrative background

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

6. 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)

7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance

9. A child or young person with special educational needs may have an 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.

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this report.

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 EHC Plan 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. 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 paragraph 9.176)

16. 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)

17. 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 EHC Plan annual review meeting to final plan should be 12 weeks.

18. We can look at any delay in the assessment and creation of an EHC Plan and any failure by a council to deliver the provision within an EHC Plan.

Council complaints procedure

19. The Council manages complaints about children’s educational provision under its corporate complaints procedure. This is a two-stage complaints procedure.

20. At Stage 1, the Council should provide a written acknowledgement of a complaint within five working days of receiving it. The Council should then issue a full written response within 20 working days of receiving the complaint. The Council may extend this timescale but should update the person complaining accordingly.

21. If a person is dissatisfied with the Stage 1 complaint response, they can ask to escalate a complaint to Stage 2. The Council aims to provide a response at Stage 2 of its complaints procedure within 20 working days of request.

Consideration of our jurisdiction

22. Our investigation focuses on events since 6 March 2023. We cannot normally investigate something the Council has done, or not done, more than 12 months before a person complains to us. We may exercise our discretion to investigate complaints about older issues where there are good reasons to do so.

23. Mrs A complained to us on 11 April 2024. All matters before 11 April 2023 would be outside our jurisdiction to investigate without exercising our discretion. We have decided to exercise our discretion to investigate matters back to 6 March 2023, when the Council completed an annual review meeting for one of Mrs A’s children.

24. Our investigation into this matter considers the Council’s fault, and injustice caused to Mrs A, B and C, up to September 2024. This is the date we obtained relevant information from the Council to conduct our investigation. If Mrs A has concerns about fault after this date, she will need to raise this with the Council as a new complaint before we can consider it.

How we considered this complaint

25. We have produced this report following the examination of relevant files and documents.

26. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

Chronology for B

27. On 6 March 2023, the Council held an annual review meeting for B’s EHC Plan. The Council should have sent a notification letter to Mrs A by 3 April 2023 advising of its intention to cease, maintain or amend B’s EHC Plan. The Council did not meet this timescale.

28. The Council wrote to Mrs A on 20 February 2024 to confirm it intended to amend B’s EHC Plan and provided a copy of the proposed amended EHC Plan with this letter. The Council should have issued a Final EHC Plan for B by 16 April 2024. The Council did not meet this timescale and says it agreed with Mrs A and B’s school to complete a further annual review before issuing an amended Final EHC Plan.

29. The Council scheduled an EHC Plan annual review meeting for B for 20 March 2024. Neither the Council nor B’s school completed any paperwork to show completion of this EHC Plan annual review meeting. The Council has not issued an amended Final EHC Plan for B by the date of this report.

Chronology for C

30. On 16 May 2023, the Council held an annual review meeting for C’s EHC Plan. The Council should have sent a notification letter to Mrs A by 13 June 2023 advising of its intention to cease, maintain or amend C’s EHC Plan. The Council did not meet this timescale.

31. On 18 March 2024, the Council wrote to Mrs A to confirm it intended to amend C’s EHC Plan and provided a copy of the proposed amended EHC Plan. The Council had until 13 May 2024 to issue a Final EHC Plan for C.

32. On 2 April 2024, the Council issued a Final EHC Plan for C.

Mrs A’s complaint chronology

33. On 20 February 2024, Mrs A made a formal complaint to the Council. She said:

• the Council delayed in completing reviews of both B’s and C’s EHC Plans;

• despite the Council holding annual reviews for both B’s and C’s EHC Plans in 2023 it had not issued Final EHC Plans;

• the Council has not updated either B’s or C’s EHC Plans since it produced them in 2019;

• following a Freedom of Information (FOI) request, she found out the Council had only reviewed 715 out of 2,563 EHC Plans in 2023; and

• she wanted the Council to produce Final EHC Plans for both B and C and to provide her with financial compensation.

34. The Council acknowledged Mrs A’s complaint on 21 February 2024 and promised a response by 19 March 2024. This acknowledgement and response date was in line with the Council’s complaints procedure.

35. The Council contacted Mrs A on 20 March 2024 to apologise for not meeting the complaint timescales. On 25 March 2024, Mrs A asked for her complaint to be considered at Stage 2 because of the complaint delays.

36. On 4 April 2024, the Council sent a Stage 2 complaint response to Mrs A. It:

• apologised for the lack of response at Stage 1 of the complaint procedure and the need to progress straight to Stage 2;

• acknowledged it had failed to adhere to the statutory timescales for reviewing either B’s or C’s EHC Plans;

• said it planned to invest additional money into its Special Educational Needs and Disabilities (SEND) service in response to an increase in demand for EHC Plans; and

• said it had now issued an amended EHC Plan for C but had not issued an amended EHC Plan for B.

Conclusions

B’s EHC Plan

37. The Council delayed in completing the annual review process for B’s EHC Plan from 6 March 2023 until 20 February 2024. The Council’s failure to complete the EHC Plan annual review process in line with the statutory timescales is fault.

38. The Council had four weeks from 6 March 2023 to send a notification letter to Mrs A about its intention to cease, maintain or amend B’s EHC Plan. The Council sent the notification letter for B ten and a half months late. This was delay and was fault.

39. The Council has still not completed the next step in the EHC Plan process for B after sending its intention to amend letter for B on 20 February 2024. The Council should have sent a Final EHC Plan by 16 April 2024. It has not done so; this fault is ongoing to the date of this report.

C’s EHC Plan

40. The Council delayed in completing the annual review process for C’s EHC Plan from 16 May 2023 until 18 March 2024. The Council’s failure to complete the EHC Plan annual review process in line with the statutory timescales is fault.

41. The Council had four weeks from 16 May 2023 to send a notification letter to Mrs A about its intention to cease, maintain or amend C’s EHC Plan. The Council sent the notification letter for C nine months late. This was delay and was fault.

42. The Council issued a Final EHC Plan for C on 2 April 2024. The Council did this within eight weeks of sending its intention to amend letter. The Council has adhered to the statutory timescales in this respect.

Injustice caused

43. We take the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes is fault.

44. Having identified fault, we must consider whether this has caused Mrs A, B and C an injustice.

45. The delays in assessing both B’s and C’s needs and in issuing amended EHC Plans has caused Mrs A distress and inconvenience. It also delayed her ability to exercise her right of appeal to the Tribunal. This same delay has caused both B and C to experience uncertainty about what provision should have been detailed in their EHC Plans to meet their needs.

46. We have published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.

47. In this case, we cannot put Mrs A, B or C back in the position they would have been in if not for the fault by the Council. We cannot know what provision either B or C would have needed in 2023 had the Council completed the EHC Plan annual review process correctly. Without knowing what B’s and C’s needs were, we cannot say what provision they have missed.

Injustice to B

48. It is clear B has faced uncertainty about what provision they have missed because of the Council’s delay since 6 March 2023. This delay amounts to one year and six months up to September 2024. This delay is prolonged and significantly beyond the statutory timescales.

49. Given the prolonged delay by the Council and the potential impact on B, we consider a payment of £750 a year would be appropriate. For the one year and six months of avoidable uncertainty B experienced, this would total £1,125.

Injustice to C

50. C has faced uncertainty about what provision they have missed because of the Council’s delay. This delay amounts to nine months. This delay is outside the statutory timescales.

51. Given the potential impact on C, we consider a payment of £575 would be appropriate for the avoidable uncertainty C experienced.

Injustice to Mrs A

52. The delays by the Council have also caused Mrs A avoidable distress and frustration since March 2023. We consider a payment of £400 to Mrs A would also be appropriate given the delays by the Council.

Complaint handling

53. The Council failed to handle Mrs A’s complaint within its complaints procedure. The Council did not provide a complaint response in line with its policy and failed to contact Mrs A to advise it needed longer to provide a complaint response.

54. The Council did contact Mrs A on 20 March 2024 to advise it needed longer to respond to her complaint but failed to provide a new timescale it intended to meet. This handling of Mrs A’s complaint was fault.

55. The Council has already apologised to Mrs A, in its Stage 2 response, for failing to respond to her in line with its complaint response timescales. The Council has already taken proportionate action to address its fault through this apology.

56. When Mrs A asked to proceed straight to Stage 2 of the Council’s process, the Council complied and provided the Stage 2 complaint response in the correct timescale. The Council followed its complaints procedure.

Systemic failings

57. The Council’s response to Mrs A’s Freedom of Information request shows it has not adhered to the statutory timescales for reviewing EHC Plans in the majority of cases.

58. We asked the Council to provide further information about its position in completing EHC Plan reviews. The Council confirmed of the 2,563 EHC Plans up for review in 2023 it had completed the annual review process for 1,088 of these by 23 August 2024. This means, the Council had still failed to complete 1,475 EHC Plan annual reviews which were due for completion by the end of the previous year. Therefore, over 57% of the EHC Plans the Council had up for review in 2023 are at least eight months delayed outside the statutory timescales.

59. The Council is experiencing the same trend in 2024 with it only completing 587 EHC Plan annual reviews up to 23 August 2024 of the 2,739 EHC Plans it has up for review. This means the Council has only completed annual reviews for just over 21% of the EHC Plans despite being nearly 65% of the way through the year. The Council is on track to fail to review all EHC Plans up for review in 2024 without significant improvement in the coming months.

60. These statistics show a systemic fault by the Council with completing annual reviews of EHC Plans. The Council is not adhering to the statutory timescales in completing the annual review process for most children who have EHC Plans. This is fault causing a significant injustice to a large number of children.

61. Where we find fault, we go on to recommend an organisation makes improvements to its service.

62. We recommend the Council produces an Action Plan for how it aims to address its failure to meet the statutory timescales for EHC Plan reviews and overcome the significant backlog of EHC Plan reviews it holds. The Council should ensure progress of the action plan is monitored regularly by a relevant member body with progress reports made publicly available.

63. It is also clear from the Council’s management of B’s and C’s EHC Plan annual reviews the Council’s record keeping is not at a suitable standard.

64. The Council either has not been making notes from a child’s EHC Plan annual review meeting or delegating annual review meetings to schools and failing to obtain the school’s notes of the annual review meetings. In both circumstances the Council is failing to keep a suitable record of children’s EHC Plan annual review meetings.

Recommendations

65. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

66. In addition to the requirements set out above, the Council has agreed to take the following action to remedy the injustice identified in this report.

• Issue a Final EHC Plan for B.

• Apologise to Mrs A for the delays in the annual review process for both B’s and C’s EHC Plans and for the delay in issuing a Final EHC Plan for B.

• Pay Mrs A:

  • £1,125 as a symbolic payment to acknowledge B’s uncertainty for one year and six months outside the statutory timescales in receiving suitable up-to-date EHC Plan provision;

  • £575 as a symbolic payment to acknowledge C’s uncertainty for nine months outside the statutory timescales in receiving suitable up-to-date EHC Plan provision; and

  • £400 as a symbolic payment for the distress and inconvenience she experienced because of the Council’s failings.

    67. To improve services, the Council has agreed to:

• produce an Action Plan for how it aims to address its failure to meet the statutory timescales for EHC Plan reviews and overcome the significant backlog of EHC Plan reviews it holds. The Council should ensure the action plan is monitored regularly by a relevant member body with progress reports made publicly available; and

• provide staff training about the importance of suitable and accurate record keeping.

Decision

68. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs A, B and C. The Council has agreed to take the action identified in paragraphs 66 and 67 to remedy that injustice.

Investigator’s report on behalf of the Ombudsman

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