Summary: There was fault by the Council. The Council delayed issuing a final Education, Health and Care Plan after two annual reviews. An apology and symbolic payment remedies the injustice to the family, who had no right of appeal during the period of delay and will never know if changes to the provision in the plan might have been made.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains there has been delay in sending a final Education, Health and Care Plan for her child, Y, after annual reviews in 2023 and 2024. Mrs X has said this caused her distress as she had to keep chasing the Council for a response.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 read the papers put in by Mrs X and discussed the complaint with her.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. 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

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 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) 
10. 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.
11. Y had an EHC Plan. There was an annual review on 13 March 2023. A draft EHC Plan was sent to Mrs X on 7 September 2023. No final plan was sent in 2023.
12. There was a further annual review on 7 March 2024. A final EHC Plan was sent to Mrs X on 7 August 2024.
13. The Council delayed issuing a final EHC Plan after the 2023 and 2024 annual reviews. This was fault. The Council has said the delays were due to the caseload size of the coordinator and staff changes. In its response to Mrs X’s official complaint the Council apologised and offered her a payment of £300.
14. The Council has accepted it was at fault, has apologised and offered a symbolic payment. I now have to decide whether the remedy already proposed by the Council is sufficient to remedy the injustice.
15. Y remained in the same school throughout so the delay did not affect the school placement. I appreciate Mrs X will never know if the provision in Section F of the plan may have been changed earlier and so I do consider a symbolic payment for her uncertainty and distress is warranted. The Council has agreed to double the symbolic payment to £600, to reflect the delay that has occurred over 2 years and 2 annual reviews.
16. Mrs X explained to me on the telephone that she is very concerned about further delays after the next annual review for post-16 provision. She was also concerned that she had to repeatedly chase for a response to her official complaint.
17. In response to my enquiries, the Council said ‘the use of an operational tracker tool to monitor the work of the co-ordinators, alongside a task tray and weekly supervision (previously fortnightly) is more effective at identifying tasks requiring action. The Council have agreed to increase the numbers of co-ordinators in the area teams and recruitment to the area teams is now being conducted centrally’.
18. In response to the Area Special Educational Needs and Disabilities (SEND) inspection carried out in November 2023 by Ofsted and the Care Quality Commission, in February 2024 the Council prepared its SEND Local Area Partnership Priority Action Plan. One of the priority actions identified is improving the timeliness and quality of the statutory EHC Plan processes. From May 2024 the SEND Improvement Board has been using performance information to assess and challenge progress and deliver improved outcomes for children and young people with SEND.
19. With this in mind, I do not intend to make any further recommendations in relation to the delays linked to the EHC annual review process.

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Agreed action

20. Within one month of the date of the decision on this complaint the Council should:
• Pay Mrs X £300, in addition to the £300 previously offered, to make a total of £600.
• Apologise to Mrs X in writing, if it has not already done so. 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.

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Final decision

21. I have completed my investigation of this complaint. This complaint is upheld, as there was delay by the Council. The actions outlined about, remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman