Summary: Mrs X complained the Council delayed amending her son, Y’s, Education, Health and Care (EHC) Plan following an annual review by over a year. The Council was at fault. It delayed issuing Y’s amended EHC Plan which meant he lost out on some of the specialist educational provision in his Plan between September 2023 and July 2024. This also caused Mrs X distress and uncertainty. The Council agreed to make payments to Mrs X to recognise the injustice caused and provide us with updates on the service improvements it has already carried out in response to this complaint.

The complaint

1. Mrs X complained the Council delayed amending her adult son, Y’s EHC Plan following annual review in May 2023 by almost a year. She said the Council failed to ensure Y received the specialist provision in his Plan during this period.
2. Mrs X said the matter has impacted on Y’s education and social development and 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. 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

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’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.
11. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section I: The name and/or type of educational placement.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Annual reviews

12. 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.
13. Within four weeks of a review meeting, the council must notify the young person’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).
14. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

EHC Needs-reassessment

15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. The overall maximum timescale for reassessment is 14 weeks from the decision to reassess.

Personal Budget

16. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

What happened

17. Mrs X has an adult son, Y who has special education needs and disabilities including autism and speech and language difficulties. Y has an EHC Plan which at the time of Mrs X’s complaint was last amended in October 2021. At the time Y attended a specialist post-16 education provider (Provider 1). The 2021 EHC Plan set out how the specialist provider would deliver Y’s provision which included 1:1 support and a personal budget for 10 hours a week social care support.
18. Towards the end of 2022 the Council decided to cancel its contract with Provider 1 after a poor inspection. Y began attending another specialist provider (Provider 2) in December 2022.
19. The Council carried out an annual review of Y’s EHC Plan in May 2023. It decided it needed amending, but it did not issue the amendment notice until November 2023.
20. During this time Mrs X said Y accessed some educational provision at Provider 2 but it was of poor quality. Mrs X said she raised concerns about the lack of specialist provision at Provider 2 throughout 2023. Mrs X complained to the Council about the matter in early January 2024. She also complained about the delay in issuing Y’s amended EHC Plan following the May 2023 review. Mrs X wished Y to return to Provider 1 with an Education Other than at School (EOTAS) package.
21. The Council decided to carry out another annual review in early 2024. It again decided Y’s EHC Plan required amending and issued Mrs X with a notice of amendment in February 2024. Records show the Council discussed the same amendments which it discussed in the May 2023 review meeting. Mrs X sent the Council her EOTAS proposal.
22. In April 2024 the Council decided to carry out a new EHC needs re-assessment however it did not notify Mrs X of this or formally write to her about its intention to carry one out. In the interim, the Council arranged for Y to attend a pathway course in catering which records showed was successful.
23. The Council responded to Mrs X’s complaints in January and May 2024. It apologised about the delay in amending Y’s EHC Plan. It offered Mrs X £300 to recognise the frustration caused by the delay and for the delay in Mrs X’s appeal rights. It said it was carrying out an EHC needs re-assessment and would arrange a meeting once it had gathered all the information it required. It said this was required before any decision about the EOTAS request could be made. Mrs X asked the Council to issue Y’s Plan without further delay.
24. The Council issued Y’s draft EHC Plan in June 2024 and then his final EHC Plan in July 2024 which outlined an EOTAS package. The final plan outlined a personal budget which Y was entitled to for the EOTAS package and also set out his access to a personal assistant to enable respite for Mrs X to use throughout the year.
25. The Council said it intended to complete Y’s EHC needs re-assessment in the 2024 autumn term.
26. Mrs X remained unhappy and complained to us. Since complaining to us the EOTAS package has started and Mrs X said Y is settled and doing well.

The Council’s response to us

27. The Council accepted it failed to amend Y’s EHC Plan following the May 2023 annual review for which it has already offered a remedy. It blamed a lack of management oversight for failing to adhere to statutory timescales. The Council also accepted that it failed to issue the decision letters within timescales following the annual reviews and it has no evidence of formally notifying Mrs X of its intention to carry out the EHC needs reassessment.
28. The Council said it has taken the following action after reviewing this case.
• Carried out staff training with regards to timescales and case recording.
• Created a new process for managers to track and monitor annual review timescales.
• Identified outstanding cases where EHC Plans had not been amended within timescales following annual reviews.
• Reviewed and amended its annual review policy which it will provide to its SEND service and schools by the end of February 2025.

My findings

29. Y’s annual review took place in May 2023 where the Council agreed his EHC Plan required amendment. Given this it should have issued the amended decision letter within four weeks of the meeting and then issued the amended plan eight weeks after that, so by the start of August. It did not issue the decision letter until November 2023 and the amended Plan was not issued until July 2024. This a delay of around one year. The Council has accepted this was fault.
30. The Council decided to carry out an EHC needs reassessment in April 2023. It did not formally notify Mrs X of its intention to do so which was fault.
31. The timescale to complete the EHC needs reassessment is 14 weeks, so it should have been completed by the end of July 2024. Although the Council issued an amended EHC Plan during this time period it did not complete the needs reassessment and it is not clear from the Council’s response if this was ever completed. That was fault. I acknowledge Mrs X said Y is now settled and doing well but it still leaves uncertainty around whether the EHC Plan in place fully meets Y’s needs.

Injustice

32. There is injustice to Y and Mrs X. Y has significant needs and at the time of the May 2023 annual review his EHC Plan was already over two years out of date. Had the Council issued his amended EHC Plan within timescales he would have had an up to date plan in time for the 2023/24 academic year which would have better reflected his needs. Y had access to some provision, particularly from April 2024 onwards. However, it is likely, on balance that he would have had access to an EOTAS package, the personal budget and the special educational provision outlined in the July 2024 amended Plan earlier.
33. The matter has also caused Mrs X distress and uncertainty during this period. I note the Council has already offered her £300 in recognition of this injustice which is an appropriate remedy.
34. The Council has told us about actions it has taken to improve its services around meeting annual review timescales. This being the case, I have not made any further service improvement recommendations but I have asked the Council to provide further updates around the action it has already taken to ensure compliance. We will continue monitoring the Council through our casework.

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Agreed action

35. Within one month of the final decision the Council agreed to:
1. Write to Mrs X, apologise and pay her the £300 already offered to acknowledge the injustice caused to her by the above faults. 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.
2. Pay Mrs X £2500 to recognise Y’s loss of education and specialist provision between September 2023 and July 2024 caused by the delays in issuing an amended EHC Plan following an annual review in May 2023. This amount recognises Y did have some special educational provision in place and is in line with our guidance on remedies.
3. Complete Y’s EHC needs reassessment and then decide, based on the outcome whether it needs to maintain the current EHC Plan or issue an amended one.
36. Within two months of the final decision the Council should:
1. Provide us with an update on its progress to issue amended EHC Plans which are outside statutory timescales following annual reviews. If at the time of the update it has failed to issue all outstanding EHC Plans it should produce an action plan to show how it intends to do so.
2. Provide us with evidence that it has completed training to its SEND officers and schools around its amended Annual Review Policy.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman