Summary: Mrs X complained about the Council’s failure to issue an amended final Education Health and Care Plan for Miss Z following the Plan’s annual review. Mrs X said this meant Miss Z did not receive suitable support. We found avoidable delay by the Council in completing the annual review. We could not say what support the Plan should provide for Miss Z. But, as the Council issued an amended final Plan during our investigation, this gave Mrs X and Miss Z legal appeal rights, including about the provision made for Miss Z’s special educational needs. However, the Council’s delay denied Mrs X and Miss Z their right to appeal for about 20 months. This caused Mrs X and Miss Z injustice. To address this injustice, the Council agreed to apologise to Mrs X and Miss Z and pay Miss Z £500.

The complaint

1. Mrs X said the Council failed to issue an amended final Education, Health and Care Plan for Miss Z following an annual review meeting in late 2022.
2. Mrs X said the delay in amending the Education, Health and Care Plan meant Miss Z did not receive suitable support. This negatively impacted Miss Z’s health and well-being. Mrs X wanted the Council to issue an amended final Education, Health and Care Plan for Miss Z.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Here, Miss Z gave written consent for Mrs X to make this complaint on her behalf.
6. 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)

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How I considered this complaint

7. I have:

• considered the complaint and supporting papers provided by Mrs X and offered to talk to her about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information about the complaint with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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 found

Background

8. A child or young person with special educational needs (SEN) 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 Special Educational Needs and Disability Tribunal (the Tribunal) or the council can do this. 
9. The council must arrange a review of the EHC Plan 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 process is only complete when the council issues a decision about the review.
10. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. Within four weeks of a review meeting, the council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. And, 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) EHC Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. Case law sets out this should also happen within four weeks of the date of the review meeting. The amended final EHC Plan must be issued within 12 weeks of the review meeting. (See articles 20(10) and 22(2) Special Educational Needs and Disability (SEND) Regulations 2014 and SEND Code of Practice (the Code) paragraphs 9.176 and 9.194. See also R (L, M and P) v Devon County Council.) 
11. There is a right of appeal to the Tribunal against many council SEN decisions. For example, the description of a child or young person’s SEN and the special educational provision specified in the EHC Plan and an amendment to either of these.

Brief summary of what happened

12. Miss Z was a young person with an EHC Plan attending a post-16 college (‘the College’). The Council provided SEN support for Miss Z’s academic studies at the College. The College provided non-academic courses and Miss Z also took part in a non-academic course (‘the Course’) that sometimes took place in the evenings and at weekends and included travel beyond the College site.
13. In late 2022, an annual review meeting took place for Miss Z’s EHC Plan (‘the Meeting’). Mrs X and Miss Z sought SEN support and funding for the Course during the Meeting. The Council said its SEN responsibilities did not cover support for the Course.
14. The Council decided to amend Miss Z’s EHC Plan but not to include provision linked to the Course. The Council wrote to Mrs X saying it intended to amend Miss Z’s EHC Plan about 10 weeks after the meeting. And, about 16 weeks after the meeting, the Council wrote to Mrs X giving notice of the proposed changes to Miss Z’s EHC Plan. Sixteen months later, the Council issued an amended final EHC Plan for Miss Z.
15. There was about 20 months between the Meeting and the issue of Miss Z’s amended final EHC Plan. And, in responding to the Ombudsman, the Council accepted the significant delay in issuing an amended final EHC Plan for Miss Z. Several matters had contributed to the time taken to issue the final EHC Plan. The Council pointed to EHC Plans including information about the child or young person’s social care needs, if any. As local education authority, it was aware a social care assessment was being carried out for Miss Z. It wanted sight of Miss Z’s care plan before finalising her EHC Plan because it might provide her with social care support for the Course. As local education authority, it saw Miss Z’s care and support plan about nineteen months after the Meeting.
16. The Council also said it issued more than one draft EHC Plan during the 20 months in seeking to address Mrs X’s comments on proposed amendments. And the interested parties considered the need for any professional reports. The Council said it found no need for such reports to review the EHC Plan but agreed to consider any secured by Mrs X or the College. The time for an annual review of the EHC Plan in 2023 also arrived and the Council held further meetings with Mrs X, Miss Z and the College. And, on one occasion, finding a meeting date suitable for all interested parties also became protracted. The Council officers dealing with both Miss Z’s EHC Plan and her care and support assessment and plan also changed during the 20 months. Staff vacancies and general pressures on both its SEN and social care services had further contributed to the time taken to issue Miss Z’s amended final EHC Plan.
17. During the 20 months, Mrs X, for Miss Z, also complained to the Council, including about the 2022 EHC Plan review. In its first complaint response, the Council did not uphold the complaint about the delayed review. The Council said it was then waiting for reports from the College and for information linked to the Course. The reports and added information were needed to understand Miss Z’s support needs before it could amend the EHC Plan. Mrs X was not satisfied with the Council’s response and continued with her complaint. The Council’s second and final complaint response recognised it had not completed the review of Miss Z’s EHC Plan within the legal timescale. The Council partially upheld Mrs X’s complaint and apologised. The Council also said it would follow up completion of the review of Miss Z’s EHC Plan. And, if Mrs X was not satisfied with the amended final EHC Plan, she would have appeal rights to the Tribunal.
18. Some months after completing the Council’s complaints procedure, and with no amended final EHC Plan yet issued, Mrs X brought her complaint to the Ombudsman. The Council later, and 20 months after the Meeting, issued an amended final EHC Plan for Miss Z, which did not include SEN support linked to the Course. The Council also wrote to Mrs X and its letter gave information on appealing to the Tribunal, including about the SEN provision set out in the EHC Plan.

Consideration

19. Mrs X’s complaint arose because of the time it was taking the Council to complete the 2022 annual review of Miss Z’s EHC Plan. Mrs X wanted the reviewed EHC Plan to include SEN provision to support Miss Z’s participation in the Course. The complaint information provided by Mrs X set out in detail her concerns about the Council’s review of the EHC Plan and the support she sought for Miss Z for the Course. I carefully considered all the information provided by Mrs X, and the Council, to write this statement. However, as a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every question or address each concern a complainant may have about what a council did or did not do. So, my investigation and this statement focused on whether there was evidence of fault having potential to cause significant injustice in how the Council handled the 2022 annual review of Miss Z’s EHC Plan.
20. The Council accepted there had been significant delays in completing the 2022 annual review. While the Council gave reasons for the delay (see paragraphs 15 to 17 of this statement), it should have completed the review, issuing Miss Z’s amended final EHC Plan, within 12 weeks of the Meeting whereas it took about 20 months. I found avoidable delay here, which was fault. However, after Mrs X complained to the Ombudsman, the Council issued an amended final EHC Plan for Miss Z. The Plan did not include SEN provision to support Miss Z’s participation in the Course. But issuing the amended final EHC Plan gave Mrs X and Miss Z appeal rights to the Tribunal about the SEN provision it contained.
21. We are not an appeal body and could not decide what SEN provision to include in Miss Z’s EHC Plan. We normally expect people to use their Tribunal appeal rights, including if they wish to challenge the SEN provision included in any final EHC Plan. Here, I found it reasonable for Mrs X and Miss Z to use their appeal rights to challenge the Plan’s lack of SEN provision for the Course. (See paragraphs 4, 8, 11 and 18.)
22. However, the Council’s avoidable delay meant Mrs X and Miss Z were avoidably denied their opportunity to appeal to the Tribunal for about 17 months. This would likely have been frustrating and distressing for Mrs X and Miss Z, which would be injustice.

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Agreed action

23. I found fault causing injustice (see paragraphs 20 and 22). To put matters right, the Council agreed, within 20 working days of this statement, to:

• Send a written apology to Mrs X for the distress caused by the avoidable delay in completing the 2022 annual review of Miss Z’s EHC Plan.
• Send a written apology and make a symbolic payment of £500 to Miss Z in recognition of the distress caused by the avoidable delay in completing the 2022 annual review of her EHC Plan.

24. The Council should consider our guidance on remedies in making the apologies referred to in paragraph 23.
25. The Council also agreed to provide us with evidence it had complied with the recommendations set out at paragraph 23.

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Final decision

26. I completed my investigation, finding fault causing injustice, on the Council agreeing the actions at paragraphs 23 and 25.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman