Summary: Miss B complained the Council delayed in issuing an Education, Health and Care Plan following an annual review. This meant her son was unable to access education. We have found the Council at fault for delays in issuing the amended Education, Health and Care Plan. The Council has agreed to apologise and make a symbolic payment to Miss B to remedy the injustice caused.

The complaint

1. Miss B complained the Council delayed in completing the annual review process which began in May 2023. She also complained her son has been struggling to attend school for over two years and has missed education in this time. Miss B says, as a result of these faults, her son’s mental health has declined, and his anxiety levels have increased. She also says she had to change her job to be at home full time to support her son while he was unable to access school. Miss B would like the Council to complete service improvements to ensure the same faults do not happen again and she would like the Council to ensure her son’s next annual review follows the statutory process.

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The Ombudsman’s role and powers

2. 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)
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. 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

5. I discussed the complaint with Miss B and considered the information she provided.
6. I made enquiries of the Council and considered its response.
7. Miss B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

8. 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. 
9. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Annual reviews

11. 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.
12. 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) 
13. 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

14. An annual review meeting was held at the beginning of May 2023. In accordance with the statutory timeframes the Council should have issued its decision by the beginning of June. As the Council’s decision was to amend the EHCP, the final Plan should have been issued by the beginning of August 2023.
15. The Council issued a decision letter in November 2023, 5 months after the decision deadline. The letter explains the Council has decided the EHC Plan needs to be amended following the annual review and it says an officer will be assigned to consider the changes and issue an amendment notice.
16. The Council issued the amendment notice in April 2024, 5 months after the deadline.
17. A final amended EHC Plan was issued in August 2024, approximately 12 months after the statutory deadline.
18. Between May 2023 and August 2024, X was unable to attend school full time. The Council were asked to provide evidence it considered its section 42 duty during this time, however it has not provided any evidence of its consideration. The amended final EHC Plan issued in August 2024 contains a detailed reintegration plan to support X to reengage with learning.

My findings

19. There was a 12 month delay between the final Plan deadline and the date on which the Council issued the final amended Plan. The amended EHC Plan contains a detailed reintegration plan to support X to reengage with learning. The delay in issuing the final plan means X missed out on this support being in place sooner. This is fault which caused distress, uncertainty and frustration for X and Miss B.
20. The Council failed to consider and record its decision making in relation to its section 42 duty. This is fault which causes uncertainty for X and Miss B.
21. The Council has recently seen an increase in the number of complaints about issues similar to those included in this complaint. This has led to a number of similar service improvement recommendations on the same issue. The Council is undergoing a significant transformation programme and has developed a SEND action plan. Therefore, I have not recommended further service improvements at this time.

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Agreed action

22. Within one month of the final decision the Council will:
• Apologise to Miss B for the faults identified. 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.
• Make a symbolic payment of £3,000 to recognise the distress, frustration and uncertainty caused by the 12 month delay in issuing the final amended EHC Plan and failure to consider the section 42 duty during this time.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. We uphold this complaint. The council has agreed to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman