Summary: Mrs X complained about the Council’s actions in relation to her child, Y’s, Education, Health and Care (EHC) Plan. The Council was at fault. It did not send Mrs X a draft amended EHC Plan when it became aware she did not have it. It also delayed issuing a final EHC Plan. This caused Mrs X frustration and delayed her right of appeal to SEND Tribunal. The Council has agreed to apologise to Mrs X and pay her £300 for the injustice it caused her.

The complaint

1. Mrs X complained about the Council’s actions in relation to her child, Y’s, Education, Health and Care (EHC) Plan. She said the Council:

1. poorly communicated with her following an annual review of the EHC Plan in November 2023;
2. delayed issuing the final EHC Plan; and
3. refused to investigate her complaint at stage two of its complaints process.

2. Mrs X said it caused her and Y anxiety and distress. It also delayed Mrs X’s right of appeal. She wants the Council to recognise its faults and apologise to her.

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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 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 spoke with Mrs X and considered information she provided.
8. I considered information the Council provided.
9. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

10. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Annual reviews of EHC Plans

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 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. After the review meeting, the council must make one of the following three decisions: to keep the EHC Plan as it is, to amend it or to cease it. All three decisions carry a right of appeal, but the appeal right for when an EHC Plan is amended, only arises once the amended final EHC Plan is issued.
13. Where the council has decided to amend the EHC Plan, the law states the council must notify the parent of its decision to amend it and what the proposed changes are within four weeks of the annual review meeting. The council must then issue the final amended EHC Plan within eight weeks of this amendment notice. Therefore, the council must issue a final amended EHC Plan within 12 weeks of the annual review meeting.

The Council’s complaints process

14. The Council has a two-stage corporate complaints process. It expects to resolve most complaints at stage one of its process. The Council can issue a further stage one response if there is additional information it needs to consider or if it did not address all points in its initial response to the complainant.
15. If a complainant is dissatisfied with the Council’s stage one response, they can ask the Council to consider their complaint further at stage two of its process however, the Council does not necessarily progress the complaint further.
16. The Council may not consider a complaint if there is another investigation such as an appeal, pending concurrently.
17. If the Council has decided not to consider a complaint or further consider a complaint, it will write to the complainant and explain its reasons why.

What happened

18. Mrs X’s child, Y, has special educational needs and an EHC Plan.
19. At the beginning of November 2023, the Council held an annual review meeting of the EHC Plan. The annual review meeting document stated Y’s current school said it was no longer suitable to meet Y’s needs and that a specialist school would be better suited.
20. In May 2024, Mrs X complained to the Council. She said since the annual review meeting, the Council had not sent her a draft amended EHC Plan or any other relevant communication. Mrs X also expressed her concern about Y’s current school being unsuitable for them. She thought the Council was going to find a placement for Y at a specialist school however so far, this had not been the case.
21. At the beginning of July 2024, the Council responded to Mrs X and:
• apologised for its lack of communication with Mrs X. It said it had a high number of caseloads and not enough staff to manage them. It was therefore not able to communicate with parents as much as it would have liked to. The Council added it was implementing a range of actions to improve its service; and
• said it had been consulting with various placements for Y.
22. Mrs X was unhappy with the Council’s response. She told the Council it had failed to address why it had not sent her a draft amended EHC Plan following the annual review meeting.
23. Shortly after in July 2024, the Council issued a final EHC Plan to Mrs X. Mrs X was dissatisfied with the EHC Plan. She said:
• some content was incorrect;
• she was unhappy with the named placement;
• the Council had incorrectly signed and dated the EHC Plan; and
• the Council had finalised the EHC Plan without sending Mrs X a draft amended version and without asking for her views.
24. Mrs X asked the Council to consider her complaint further at stage two of its process.
25. Towards the end of July 2024, the Council issued a further final EHC Plan with the correct date and signature.
26. Around the same time, the Council provided a further stage one response to Mrs X. In its response, the Council:
• accepted it had incorrectly signed and dated the EHC Plan it issued previously in July 2024;
• reiterated it had consulted with other placements as Mrs X wanted to change Y’s placement. It had considered her views from the annual review meeting and so was satisfied it had worked with her; and
• told Mrs X following the annual review meeting, it had sent her the draft amended EHC Plan and asked Mrs X for her views however, it did not receive any comments from her.
27. The Council also told Mrs X if she remained dissatisfied with the EHC Plan, she had the right to appeal to SEND Tribunal which it believed she had already done. It continued and said it would not escalate her complaint to stage two of its complaints process as by then, she had appealed.
28. Mrs X remained unhappy and complained to us.

The Council’s response to my enquiries

29. In response to my enquiries, the Council:
• sent me a copy of the letter it said it had sent to Mrs X in November 2023, following the annual review meeting. The letter detailed the Council was currently preparing a draft amended EHC Plan and that it would send this to Mrs X. Once it had sent the draft amended EHC Plan, it would ask Mrs X to provide her views within 15 days;
• sent me a copy of the draft amended EHC Plan it said it had sent to Mrs X in November 2023;
• said it did not have a supporting email which showed it had sent Mrs X the aforementioned letter and draft amended EHC Plan however, it provided a case note which said it sent Mrs X a draft amended EHC Plan in November 2023; and
• said the delay in issuing the final amended EHC Plan was caused by the Council trying to secure a placement for Y and not having enough staff to manage Y’s case. It accepted it should have issued the final amended EHC Plan within 12 weeks of the annual review meeting.

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Findings

30. Mrs X said following the annual review meeting in November 2023, the Council did not send her notification of amending Y’s EHC Plan and a draft amended EHC Plan. The Council said it did send Mrs X a notification and a draft amended EHC Plan however, it does not have an email to prove it did so. Although the Council has a case note which states it sent Mrs X a draft amended EHC Plan, I cannot say with certainty that it did. Therefore, I cannot come to a finding on whether the Council sent Mrs X the draft amended Plan, even on the balance of probabilities.
31. In May 2024, Mrs X told the Council it had not sent her a draft amended EHC Plan. At this point, it was clear Mrs X had not seen the amended Plan so the Council should have sent it to her. It did not do so. The Council was at fault which caused Mrs X frustration.
32. The Council should have issued a final EHC Plan within 12 weeks of the annual review meeting which should have been approximately by mid-January 2024. The Council did not issue a final EHC Plan until the end of July 2024 which was a delay of approximately six months. This was fault and not in line with statutory timescales. This caused Mrs X frustration and delayed her right of appeal to the Tribunal.
33. The Council accepted it did not issue the final EHC Plan within statutory timescales and explained this was due to having a high number of caseloads and a shortage of staff. In January 2024, the Council put together an action plan following an inspection from Ofsted. I have therefore not recommended any service improvements as the Council is already taking action to address the delays. We will continue to monitor this through our case work.
34. The Council investigated Mrs X’s complaint at stage one of its complaints process. At Mrs X’s request, it provided her with a further stage one response. This was in line with the Council’s complaints procedure. Mrs X was dissatisfied as the Council did not progress her complaint to stage two of its process. The Council explained its reasons why it would not investigate her complaint further. This was in line with its complaints procedure. The Council was not at fault.

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Agreed action

35. Within one month of the final decision, the Council has agreed it will apologise to Mrs X and pay her £300 to acknowledge the frustration it caused her when it did not send her the draft amended EHC Plan in May 2024 and for the delay in issuing a final EHC Plan which delayed her right of appeal to SEND Tribunal. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation will consider this guidance in making the apology to Mrs X.
36. The Council will provide us with evidence it has complied with the above actions.

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Final decision

37. I have now completed my investigation. The Council was at fault. It has agreed to remedy the injustice caused to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman