Summary: Mr B complains the Council caused delays during the annual review process for his son’s Education, Health and Care (EHC) Plan and amended the Plan without informing him and without any additional assessments. There was fault by the Council in the way it did not meet annual review statutory timescales. Mr B suffered distress and frustration, and the Council’s failure to meet statutory timescales delayed his appeal rights to the Tribunal. The Council has agreed to apologise to Mr B, make a symbolic payment, and issue a staff briefing.

The complaint

1. Mr B complains the Council acted immorally during the annual review process for his son’s EHC Plan, so it could save money. He says the Council missed deadlines and caused delays and amended the Plan without informing him and without any additional assessments.
2. Mr B says the Council’s actions have cost him time and money, and it has caused stress to him and his family.

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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 an injustice, 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. 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.
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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. I have investigated matters in this case from early November 2023 to early May 2024. I reference matters outside this period for context.
9. I have not investigated any reference to the contents of Mr B’s son’s final EHC Plan, or the production of it, besides the delays. This is because Mr B can, and has, appealed the contents of the Plan to the SEND Tribunal. We cannot investigate matters, or closely linked matters which are appealable to the Tribunal.

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How I considered this complaint

10. I read Mr B’s complaint and spoke to him about it on the phone.
11. I considered information provided by Mr B and the Council.
12. Mr B and the Council have had an opportunity to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

13. 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

14. 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 then take place. The process is only complete when the Council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Appeal rights

16. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

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What happened

17. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
18. An annual review of Mr B’s son’s EHC Plan took place in early November 2023.
19. Following the annual review meeting, the Council issued amended draft EHC Plans in November 2023, and January, March and April 2024.
20. Mr B logged a complaint with the Council in late April 2024. He complained about changes the Council had made to the drafted EHC Plans, and the delays in the process.
21. The Council issued the final amended EHC Plan and sent Mr B its response to his complaint in early May 2024.
22. Mr B lodged an appeal to the SEND Tribunal about Section F of the EHC Plan in June 2024. The hearing is planned for May 2025.

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Analysis

23. After the Council wrote to Mr B in November 2023 with its notification to amend the EHC Plan, it did not issue the final amended EHC Plan within the statutory timescales. The annual review took place in early November 2023. Mr B received the notification to amend the EHC Plan in late November 2023. And he received the final amended EHC Plan in early May 2024. This is a delay of just under 17 weeks.
24. The almost 17 week wait delayed Mr B’s right of appeal to the Tribunal until the final amended Plan was issued in May 2024. We take the view that councils must abide by statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales here is fault by the Council and has caused Mr B distress and frustration.
25. The Council issued the final amended EHC Plan in May 2024. The final Plan gave Mr B the right of appeal to the SEND Tribunal. While Mr B disagrees with parts of the contents of the Plan and that the Council made amendments without additional assessments, the way for him to challenge this was by appealing to the SEND Tribunal, which Mr B has done. The courts have established we cannot investigate matters which are appealable to the Tribunal.
26. The Council has acknowledged, and it is clear from the documentation, there have been delays in this case. The Council apologised to Mr B in its complaint response, and in response to my enquiries it told me:
• the SEND Service has experienced issues with capacity and the delays were due to staff absences, changes in processes, and high caseloads; and
• the Council is working to reduce delays by increasing staffing and/or modifying systems and practices for carrying out statutory functions.
27. I have made one service improvement below. We are already monitoring the Council’s progress on improving its SEND Service following recommendations from another case where we have found similar fault. In this case, the Council agreed to provide us with an update on its actions to improve its SEND Service, including:
• recruitment of more SEND staff;
• the implementation of a new case management system; and
• timescales for introducing a portal environment for casework.

I have therefore not made any further service improvement recommendations.

28. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
29. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because 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.

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Actions

30. To remedy the outstanding injustice caused to Mr B by the fault I have identified, the Council will take the following action within four weeks of my final decision:
• Apologise to Mr B to acknowledge the distress and frustration caused by the Council’s delay in issuing the final amended EHC Plan and delayed appeal rights. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology.
• Pay Mr B a symbolic payment of £150 to acknowledge the same as above.
• Issue a staff briefing to remind all relevant staff of the importance of meeting statutory timescales for EHC Plan annual reviews.
31. The Council will provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman