Summary: There was 13 months delay by the Council in amending an Education, Health and Care plan after an annual review. This was fault. Apologising and making a symbolic payment remedies the injustice of distress and uncertainty.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council delayed issuing an amended Education, Health and Care (EHC) Plan after an annual review.
2. Mrs X says the delay has meant her child, Y, has spent more time in an unsuitable school placement.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have investigated events from the annual review in July 2023 until the amended EHC Plan was issued in November 2024.

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How I considered this complaint

7. I read the papers put in by Mrs X and discussed the complaint with her.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. Mrs X and the organisation 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

10. 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. 
11. Y was in infant school at a mainstream primary with an EHC Plan. There was an annual review of the EHC Plan on 7 July 2023.
12. The amended EHC Plan, after the review, was issued on 19 November 2024. This named Y’s current school but said ‘the Council was actively seeking a transfer to specialist school’.
13. 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.
14. 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) 
15. 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. The final plan should be issued within 12 weeks of the date of the review meeting.
16. The Council has accepted there was a delay issuing the final plan after the annual review. This was fault. The EHC Plan should have been issued by 29 September 2023, instead there was a delay of almost 13 months.
17. I now have to consider the injustice caused to the family by the delay. Y has remained in school, often doing half-days, from July 2023 but Mrs X has explained that he becomes distressed in school which causes stress to the family. She wants him to move to a specialist school as soon as possible and worries the delay has meant that places won’t be available at school’s closer to home, meaning more time travelling.
18. The Council has sent details of consultations with 17 schools from July 2024 until October 2024. The Council has said that two schools have said they can meet needs but Mrs X has not had written confirmation of this or a start date.
19. I recognise the distress and uncertainty the delay in issuing the amended EHC Plan has caused Mrs X. While Y has been in education during that time, this has not been full time and both she and Council consider that Y should be in a specialist school. I propose the Council makes a symbolic payment of £1300 to Mrs X to recognise the uncertainty, this is £100 for every month the EHC Plan was delayed.
20. The Council has explained that it has a recruitment and recovery plan in place to address delays in finalising plans and so I do not intend to make a service improvement recommendation as the Council already has current plans.

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Agreed action

21. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £1300.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. I have completed my investigation of this complaint. This complaint is upheld. The action above remedy the injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman