Summary: Mrs X complained about the Council’s delay issuing her child, Y’s amended final Education, Health and Care Plan. We find the Council at fault. This impacted Y’s education and caused distress and uncertainty for Mrs X. The Council has agreed to apologise, make a payment to Mrs X, and issue an amended final Education, Health and Care Plan.

The complaint

1. Mrs X complained about the Council’s delay issuing her child’s amended final Education, Health and Care (EHC) Plan.
2. As a result, Y continues to attend an unsuitable school, and their right of appeal to the SEND Tribunal has been delayed.
3. Mrs X wants the Council to finalise Y’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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.
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 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

9. 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)
10. Mrs X became aware of the delay issuing Y’s amended final EHC Plan in January 2023 and should have brought her complaint to the Ombudsman by January 2024. She brought her complaint in May 2024. Given the initial delays in the EHC process due to staff changes, it is reasonable that Mrs X allowed the Council time to address the issue first. Considering that the delay is only a few months, I will investigate Mrs X’s entire complaint.

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How I considered this complaint

11. I considered Mrs X’s complaint, the Council’s responses. I also discussed the complaint with Mrs X.
12. I referred to the Ombudsman’s Guidance on Remedies, (a copy of which can be found on our website).
13. 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

Education, Health and Care Plan

14. 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. 

Reviewing EHC Plans

15. 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.
16. 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) 
17. 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.

What happened

18. Y has special educational needs. In 2020 she was issued an EHC Plan.
19. In November 2022, Y’s school held an annual review of her EHC Plan. During the review, Mrs X shared her concern that the school could no longer meet Y’s needs and Y should attend a specialist setting.
20. In January 2023, the Council wrote to Mrs X telling her Y’s EHC Plan would be amended, and it would allocate an assessment and reviewing officer to the case.
21. In March 2023, the Council sent a letter to Mrs X, apologising for delays that had occurred and stating that an officer would be allocated by June 2023.
22. In February 2024, another annual review of Y’s EHC Plan took place. It noted the previous amended final EHC Plan was still outstanding, with further changes under consideration by the Council.
23. Later that month, Mrs X complained to the Council that she had not yet received Y’s amended final EHC Plan following the November 2022 review. She reported poor communication from the Council and said the delay was affecting her mental health and causing the family distress.
24. In March 2024, the Council responded to Mrs X’s complaint. It upheld her complaint, apologised for the lack of communication and the significant delays, and acknowledged the impact on the family. The Council explained that staff turnover and gaps in staffing had disrupted the service, leading to multiple changes in the officer allocated to the case, which caused further delays.
25. Later that month, Mrs X escalated her complaint to stage 2, stating that no further action had taken place on Y’s amended final EHC Plan since the Council’s previous response. She told the Council how difficult she was finding the situation, and how Y continued to struggle in a school that was not suitable for her.
26. In April 2024, the Council responded to the stage 2 complaint. It upheld her complaint, apologised, and agreed the time taken was unacceptable. The Council assured Mrs X it had recognised its failures and learnt from them.
27. In May 2024, Mrs X brought her complaint to the Ombudsman.

My findings

28. The Council has accepted it has not issued the amended final EHC Plan within the statutory timescales. The Council has been consulting with schools, however, is yet to find a suitable placement for Y.
29. Y’s amended EHC Plan should have been issued 12 weeks after the annual review was held in November 2022, so in January 2023. However, it had still not been issued when Mrs X brought her complaint to us in May 2024, a delay of 16 months. This delay is fault.
30. The delay has impacted Y’s education. She continues to attend a school which is no longer suitable for her. It has also delayed Mrs X’s right of appeal to the SEND Tribunal and caused avoidable distress and uncertainty.
31. The Council has also accepted its poor communication throughout the process acknowledging failings in its response to the complaint.

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Agreed action

32. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to: 
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X £500 to recognise the avoidable frustration and uncertainty caused to her by the Council’s delay and poor communication; and
• issue the amended EHC Plan for Y, providing Mrs X with her right of appeal to the SEND Tribunal.
• Once the final Plan is issued, the Council should remedy, in line with our Guidance on Remedies, any provision Y would have had sooner but for the delay (in this case since January 2023).
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman