Summary: We uphold Miss G’s complaint, finding the Council delayed in updating her child’s Education, Health and Care Plan, following a review. This caused injustice, including that a delay in updating the Plan, resulted in a loss of education provision for the child. The Council has accepted these findings and at the end of this statement, we set out the action it has agreed to remedy this injustice. This comprises an apology and symbolic payment to Miss G.

The complaint

1. Miss G’s complaint concerned how the Council met the needs of her child, ‘H’, who has special educational needs. Miss G complained the Council:

• delayed in agreeing to bring forward a review of H’s Education, Health and Care (EHC) Plan when H’s school raised concerns that H needed more support to meet their needs;
• delayed in amending H’s EHC Plan following a review that took place in March 2024;
• refused to accept a complaint she made under stage 2 of its corporate complaint procedure in May 2024.

2. Miss G said H had therefore not had an EHC Plan that would meet their needs for over 12 months. Further, H’s school had not had the resources to support their education. In addition, Miss G said she found it frustrating and stressful making repeated enquiries and a complaint about these matters.

Back to top

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. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. Before issuing this decision statement I considered:

• Miss G’s complaint to the Ombudsman and supporting information she provided;
• Miss G’s complaint to the Council and its replies to the same, which pre-dated our investigation;
• information the Council provided to us in reply to enquiries;
• relevant law and Government guidance referred to in the text below;
• relevant Ombudsman guidance referred to in the text below.

8. I also gave Miss G and the Council a chance to comment on a draft version of this decision statement and / or to provide any further evidence they considered relevant. I took account of their responses, before completing the decision statement.

Back to top

What I found

Relevant law and guidance

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. The Plan sets out the child’s needs and the arrangements made to meet them.
10. The council must arrange to review the EHC Plan at least once a year to make sure it is up to date. The council must complete a first review within 12 months of issuing an EHC Plan. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place.
11. Within four weeks of a review meeting, the council must notify the child’s parent if it will maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). 
12. Where the council proposes amending an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and details of the proposed amendments. (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 key facts

13. H is a child with special educational needs. They entered Reception Class in a mainstream primary school in September 2023 with an EHC Plan.
14. Miss G told me by November 2023, the school reported to her that it needed more support to meet H’s needs. In particular, that it considered H needed a higher ratio of staff to support them and would benefit from teaching in smaller groups. The school told Miss G it would therefore seek an early review of H’s EHC Plan and first contacted the Council asking for this at the start of December 2023.
15. At the end of January 2024, the Council had not replied to the school’s request and so Miss G made her own enquiries with it. This prompted an officer to contact the school and they agreed in principle to an early review of H’s Plan. The school then contacted the officer to check their availability to attend but had no reply.
16. Consequently, in March 2024 the school held the review meeting, having invited the Council to attend, but without it doing so. The minutes of the meeting show concern H was not meeting a series of objectives set out in their Plan. The review recommended the Council amend the Plan.
17. At this stage Miss G had already complained about the delay in the Council agreeing to the review. At the end of April, she asked to escalate her complaint to Stage 2 of the complaint procedure. This was because nearly eight weeks after the review, Miss G had heard nothing further from the Council.
18. In May 2024 the Council wrote to Miss G saying it would amend H’s Plan. It did not send Miss G a copy of any proposed amendments.
19. Next, the Council replied to Miss G’s complaint. It said it was sorry if Miss G “felt” the Council had fallen below expected standards. It said that its officers could not attend every annual review and the service had experienced a recent unprecedented increase in demand.
20. In addition, the Council said it would not treat her contact of April 2024 as a complaint. This was because it had now confirmed it would amend H’s EHC Plan. But Miss G’s could escalate a complaint to Stage 2 of its complaint procedure if unhappy with its response.
21. Miss G remained unhappy about the delay and continued to pursue her complaint. In August, the Council gave its final reply apologising for the “delay and inconvenience” she had experienced. It said the Council had now increased funding for H’s education and they would therefore receive “additional support”. And the Council said that it would now “look into the annual review”.
22. In September 2024 Miss G contacted us, unhappy that H’s EHC Plan remained unchanged.
23. In October 2024 the Council wrote to Miss G again to apologise for the delay in issuing a draft EHC Plan following the review. It told Miss G it would send this to her in the next four weeks.
24. In November 2024, Miss G told us that H’s school advised there remained a significant shortfall in the money needed to fund H’s needs. She sent us a copy of an email and breakdown of costings from the school, confirming this was its view.
25. In December 2024 the Council issued a draft EHC Plan for H, with proposed amendments. These included that H should benefit from a higher ratio of staffing to their peer group. Also, that they should receive more teaching in small groups and work with experienced staff with particular specialism in their needs. It also proposed new teaching strategies to help meet the outcomes in H’s Plan.
26. In reply to my enquiries the Council provided proof it increased funding for H’s education effective from May 2024. However, it also told us that funding might increase further once it has issued the final EHC Plan.

Recent Ombudsman investigations

27. I identified that since September 2023 we have issued four decision statements finding fault by the Council, because of delays in the review of EHC Plans. In particular, where there were long delays of at least nine months, in issuing amended draft Plans following a review.
28. Following an investigation we completed in April 2024, the Council’s Children, Families and Skills Scrutiny committee considered this an issue of concern and officers reported to the committee again in September 2024. The report identified a “considerable backlog” of reviews and set out measures taken by the Council to increase staffing to help clear this. The report also said that it could track caseloads for timeliness, implying the Council knew when action following a review was overdue.

My findings

29. I considered each part of Miss G’s complaint in turn.
30. First, I found the Council at fault for delay in responding to the school’s request for an early review of H’s EHC Plan. Realistically I considered it could have agreed this by early January 2024, meaning a review meeting could have taken place before the end of that month. I found there was an avoidable delay of around a month therefore in H’s review meeting. That was a fault.
31. Second, the Council was also at fault for the more significant delays which followed the review. It should have told Miss G of its intent to amend H’s Plan by the beginning of April and sent her proposed amendments to comment on. But it did not do the former until May, and did not do the latter until mid-December 2024, a delay of over eight months.
32. Third, the Council introduced some avoidable delay into its complaint handling. I found Miss G’s contact of April 2024, complaining at the delay in action following the review was a clear expression of dissatisfaction. The Council acted by taking some action on H’s case, promising to amend their EHC Plan. I considered that an attempt to resolve the complaint, but it was inadequate. This was because the Council also still needed to reply to Miss G’s substantive complaint about an overall delay in progressing H’s review from the point the school first asked for this.
33. The response was also further confusing. Because while it said it was not a reply to a complaint, it offered Miss G the opportunity to escalate a complaint to Stage two of the complaint procedure if unhappy with the reply.
34. For the reasons set out in paragraphs 32 and 33, the Council was also at fault for its complaint handling.
35. These faults caused injustice to Miss G and H. For more than eight months longer than should have been the case, H did not have an EHC Plan reflecting either the extent of their needs or the arrangements that should be in place to meet them.
36. I noted that H’s school continued to provide a full-time education for them throughout this time. This mitigated some of the injustice. I also noted the Council had increased funding for H’s education. But the school’s comments to Miss G suggested this was not enough to provide the education specified in the draft EHC Plan. While I could make no finding on the funding H needed to meet their needs, the Council, on its own account could not say the increased funding it gave the school was enough. It accepted it may need to give more. So, on balance I did not find the Council had taken measures to further mitigate the injustice caused to H by not having their Plan finalised by April 2024.
37. In Miss G’s case, the delays caused her unnecessary frustration and distress. While the fault in complaint handling also resulted in her avoidable time and trouble.

Back to top

Agreed action

38. The Council has accepted these findings. To remedy the injustice identified above, it has agreed that within 20 working days of a decision on this complaint, it will provide Miss G with:

• an apology, accepting the findings of this investigation;
• a symbolic payment of £2000.

39. The Council will provide us with evidence when it has complied with the above actions.
40. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the agreed apology. I noted that in an earlier apology to Miss G the Council said it was sorry if Miss G “felt” its service had fallen short. The Council should avoid distancing itself from an apology in this way. It should take clear accountability when it gets something wrong.
41. The symbolic payment agreed, took account of the Ombudsman’s published guidance on remedies. In considering cases of delay in issuing EHC Plans, including following a review, we usually apply a tariff of between £900 and £2400 per term, to reflect any lost provision. In this case I applied a figure at the lower end of the tariff (£900) to reflect a loss of provision of around two terms to H (noting some of the delay coincided with school holidays). So, that part of the proposed payment totalled £1800. I gave weight to this being a particularly important stage in H’s education, having just begun school. But mitigating this, H had full-time education throughout (and Miss G praised H’s school for the efforts it made here). To this figure I added a sum to reflect something for Miss G’s distress, time and trouble.
42. I decided against making any wider recommendations designed to improve the Council’s service. The complaint highlighted a repeat pattern of delay we are seeing in the Council progressing EHC Plan reviews. However, I was conscious that within the last six months the Council had provided information (publicly available) showing it had a plan to clear the backlog and there was management oversight of that. Such plans can take several months to bring tangible results. So, I thought it premature to ask the Council to undertake more work here. But I asked the Council to be mindful that if we continued to find delays following EHC Plan reviews, we would pay closer attention again to this topic and the work it is taking to reduce those.

Back to top

Final decision

43. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss G and H. The Council accepted these findings and agreed action to remedy that injustice. Consequently, I could complete my investigation satisfied with its response.

Back to top

Investigator's decision on behalf of the Ombudsman