The Investigation

The complaint

1. The Council has delayed in sending decisions following annual reviews for virtually all Education, Health and Care (EHC) Plans for children and young people with special educational needs and disabilities in its area.

2. The Council has also delayed carrying out amendments to EHC Plans following annual reviews.

3. This has meant many children and young people have had to wait too long to receive a decision about whether their EHC Plan will be amended. For many of those EHC Plans which the Council decided to amend, children and young people are having to wait too long to receive an updated EHC Plan and are potentially not receiving the appropriate provision to meet their assessed need.

Legal and administrative background

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

6. When investigating another complaint (reference 23001456) about delays by the Council completing amendments to an EHC Plan and issuing a final amended EHC Plan, we discovered there were others who had experienced similar delays. Those people had not complained to us. We considered there may be fault by the Council, causing injustice to members of the public. We decided to investigate those cases using our powers under section 26D of the Local Government Act 1974 because we had identified a specific group of people beyond the original complaint, who are potentially affected by the same or similar fault and injustice.

7. Where we identify fault in an investigation, we may make recommendations not only to remedy injustice sustained already, but also to prevent injustice in the future in consequence of similar fault. (Local Government Act 1974, section 31(2B), as amended)

8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this report.

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

Education, Health and Care Plans

10. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the Tribunal can do this.

Reviews of EHC Plans

12. 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.

13. 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)

14. 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.

15. The Council must then issue any final amended Plan within eight weeks of the amendment notice, therefore a final Plan must be issued within twelve weeks of the review meeting. (R (L, M and P) v Devon County Council)

How we considered this complaint

16. We produced this report after examining relevant documents.

17. We gave the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

18. After previously investigating another complaint (reference 23001456) we found the Council at fault for not updating a child’s EHC Plan following an annual review, and after agreeing to carry out amendments to the EHC Plan.

19. As part of another complaint we investigated (reference 23005108) the Council told us in March 2024 it had taken the following steps to improve its Special Educational Needs and Disability Service.

• Developed its Alternative Educational Provision Strategy with a clear vision for continuous improvement.

• Joined the national SEND and Alternative Provision Change programme to develop a new multi-agency Alternative Provision taskforce to support young people who are accessing alternative provision.

• Implemented a SEND advice line.

• Recruited a Team Leader in the SEND service, and invested in training and development for staff to develop and streamline its processes.

• Held regular listening events for parents and carers.

• Increased the capacity within the EHC team.

20. In June 2024, the Council told us it had 809 cases where it had completed an annual review and decided to amend the Plan but had not issued an updated EHC Plan.

21. Following the completion of our investigation into case 23001456 we made further enquiries to the Council to find out how many other children and young people were having to wait a significant amount of time for an updated EHC Plan following an annual review. We also made enquiries to find out how many children and young people were having to wait more than four weeks for a decision following their annual review.

22. The Council said as of September 2024, it had 1,225 cases where it had agreed to amend an EHC Plan following an annual review. Of these:

• 219 cases had a draft EHC Plan in place and had been open for over 6 months since the decision to amend the Plan;

• 139 cases were yet to have a draft EHC Plan produced; and

• 93 cases did not have a draft EHC Plan yet and had been open for over 6 months.

23. As of October 2024:

• there were 1,365 cases where it had agreed to amend an EHC Plan following an annual review. Of these, 803 cases did not receive the decision to amend the EHC Plan within four weeks of the annual review meeting; and

• there were 600 cases where the Council either decided to maintain or to cease the Plan but had not issued its decision within four weeks of the annual review meeting.

Conclusions

24. There has been significant fault by the Council. The law says the Council should notify a child or young person’s parent of its decision to amend, maintain or cease an EHC Plan within four weeks of the annual review meeting. The law also says the Council should issue a final amended EHC Plan within 12 weeks of the annual review meeting and within eight weeks of sending an amendment notice.

25. From the Council’s own records there are over 1,400 cases where it did not notify parents of its decision to amend, maintain or cease an EHC Plan within four weeks of the annual review meeting.

26. Of these cases there were 600 where the Council decided to maintain or cease the Plans. For these cases parents of children and young people had to wait longer than they should have for a decision and their right to appeal to the Tribunal.

27. There are over 300 cases, where it had agreed to amend an EHC Plan, which are over six months old. Just under 100 of these cases did not even have a draft EHC Plan in place after six months. The number of cases where the Council had completed annual reviews and not issued an updated EHC Plan increased from just over 800 in June 2024 to just over 1,200 in September 2024 and was at over 1,300 in October 2024. While the Council said it had put in place measures to improve its Special Educational Needs and Disability Service, this does not appear to be reducing its backlog of cases where it needs to issue an EHC Plan following an annual review.

28. The children and young people affected by these delays should still be receiving the provision detailed in their existing EHC Plans. By deciding to amend the EHC Plan the annual review has likely identified the provision currently set out in an EHC Plan may not be meeting a child or young person’s needs or that those needs have changed or that their placement may no longer be suitable. The longer the passage of time before the Plan is amended and finalised to address the issues identified in a child or young person’s annual review, the greater the likelihood for ongoing and increasing injustice for each child or young person concerned.

29. The parents of these children and young people have no formal means to challenge the content of their child’s EHC Plan should they disagree with the amendments the Council proposes to make. They can only appeal to the Tribunal after the Council issues a final EHC Plan. This is why it is important to produce the EHC Plans within the statutory timescales.

30. In response to a draft of this report, the Council recognises it was at fault. The Council said it was taking action to improve its service. We are issuing this report to ensure the actions the Council is taking to address this issue has the appropriate level of scrutiny.

Recommendations

31. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

32. We recommend within three months of the date of this report the Council produces an action plan which details the steps it will take to meet its statutory timescales for:

• issuing decisions after an annual review meeting; and

• issuing EHC Plans after annual reviews and reduce the time parents and children have to wait for a final EHC Plan.

33. As part of this action plan the Council should:

• identify specific further steps which it can take to ensure it is sending families decisions following their annual review meeting within four weeks and final EHC Plans within 12 weeks of the annual review meeting;

• look at the impact of the measures it says it has put in place already and assess whether these are working; and

• look at what steps it can take to specifically progress its oldest cases, that is those which have been open for over six months without a draft EHC Plan.

34. The Council should give oversight of the action plan produced to the relevant Committee. The Council should provide quarterly updates of progress to the committee with explanations and reasons given if objectives or timescales have not been met. The action plan, quarterly updates and committee minutes should all be published in the SEND section of the Council’s website to enable those affected to track the progress.

Decision

35. We have completed our investigation. There was fault by the Council which caused injustice to people who had not complained to us. The Council should carry out the actions in paragraph 31-34 to prevent this injustice continuing.

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