Summary: Mrs B complained the Council failed to follow the statutory process for issuing an Education, Health and Care Plan, for her son, X, following a Tribunal Order. Mrs B says this meant X missed provision which should have been included in his Plan. We have found the Council at fault for the delay in issuing a final amended Education, Health and Care Plan. The Council has agreed to apologise to Mrs B and make a symbolic payment to recognise the frustration and uncertainty caused by the delay.

The complaint

1. Mrs B complained the Council:
• Failed to follow the statutory timeframe for issuing an Education, Health and Care Plan (EHCP) following a Tribunal Order in January 2024.
• Delayed in issuing a final EHC Plan following an annual review meeting in April 2024.
• Provided wrong information in its stage two complaint response.
2. Mrs B says the Councils actions have caused anger and frustration. She also says her son missed the provision which should have been included in his EHC Plan between January and September 2024. Mrs B would like to be compensated for each week the tribunal ruling was ignored and for each week of delay following the annual review.

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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. 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)
5. 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

6. I discussed the complaint with Mrs B and considered the information she provided.
7. We made enquiries of the Council and considered the information it provided.
8. Mrs 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

Legal and administrative background

SEND tribunal

9. 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.
10. 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)  
11. 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 report.
12. If the SEND Tribunal make an order requiring a Council to amend the special education provision specified in the EHC Plan, the Council should issue the amended plan within 5 weeks of the Tribunal order being made (Section 44(2)(e) Special Educational Needs and Disability Regulations 2014).

Annual review process

13. 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.
14. 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) 
15. 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

EHC Plan

16. Following an appeal to the SEND Tribunal, a tribunal order was issued at the end of January 2024 which ordered the Council to amend X’s EHC Plan. In accordance with the statutory process the Council should have completed the amendments and issued a final amended EHC Plan by the first week of March 2024.
17. An annual review meeting was held in the first week of March 2024. In accordance with statutory guidance the Council should have written to inform Mrs B of its annual review decision by the beginning of April 2024. The Council should have issued the final amended plan by the end of May 2024.
18. The Council issued an amended draft plan in July 2024 and a final amended Plan in September 2024. The final amended plan combined the amendments ordered by tribunal in January 2024 and those agreed following the March 2024 annual review.

Complaint handling

19. At the end of May 2024 Mrs B sent a stage one complaint to the Council about the delays in issuing X’s amended EHC Plan. The Council acknowledged Mrs B complaint and told her it would provide a response at the beginning of June. The Council issued a stage one complaint response one day over the response deadline.
20. The Council’s stage one complaint response acknowledged it had failed to issue the amended final EHC Plan within statutory timeframes following the Tribunal Order. The response incorrectly says the amended final EHC Plan had been issued at the time of sending the complaint response.
21. The Council’s stage one response also acknowledged the annual review process had not been followed correctly and the Council arranged a co-production meeting to ensure the EHC Plan could be amended to correctly reflect X’s needs and the provision required to meet those needs.
22. The co-production meeting took place in mid-June. Mrs B contacted the Council at the beginning of July as she had not had contact from the Council following the co-production meeting and the final EHC Plan had still not been issued.
23. The Council issued a stage two complaint response in mid-August 2024. The stage two complaint response upheld the findings of the stage one response and explained the delay in issuing X’s final amended Plan following the Tribunal order was due to a staff member leaving. The Council said it would ensure a plan was in place to manage work within the tribunal team when team members leave employment.
24. The stage two complaint response incorrectly told Mrs B a final plan had been issued in July 2024. Mrs B responded to the Council’s stage two complaint response to tell them she had not received a copy of a final plan in July 2024.
25. The Council issued a revised stage two complaint response in November 2024. In its stage two response the Council accepted the EHC Plan sent to Mrs B in July 2024 was a draft and that no final Plan was issued until September 2024.
26. The Council offered Mrs B a symbolic financial remedy of £400 which Mrs B accepted.

My findings

27. The Council failed to issue the final amended EHC Plan within five weeks of receiving the Tribunal Order in January 2024. The Council did not issue the final amended plan until September 2024. This is a delay of approximately 6 months. This is fault which caused frustration, distress and uncertainty for X and Mrs B and meant X missed out on the special educational provision ordered by the SEND Tribunal.
28. The Council failed to follow the statutory process for completing an annual review. This is fault which caused frustration, distress and uncertainty for X and Mrs B.
29. The Council provided incorrect information in its complaint responses. This is fault which caused Mrs B distress, frustration and uncertainty.

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Agreed action

30. Within one month of the final decision the Council will:
• Apologise to Mrs 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 its apology.
• Pay Mrs B a symbolic financial remedy of £1400 to recognise the distress, frustration, uncertainty and loss of provision caused by the delay in issuing the final amended EHC Plan. This is calculated at approximately £900 per term, minus the £400 payment already issued by the Council.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman