The Ombudsman's final decision
Summary: Mrs X complained the Council delayed amending Y’s Education, Health and Care (EHC) Plan following an annual review in May 2021. She says this delayed her right of appeal to the SEND Tribunal about the content of the EHC Plan and the named educational placement. The Council was at fault. It agreed to apologise to Mrs X and pay Mrs X and Y £150 each in recognition of the frustration and uncertainty caused.
The complaint
Mrs X complained that the Council: Delayed issuing an amended Education, Health and Care (EHC) Plan for her daughter, Y, following an annual review in May 2021. Mrs X said this delayed her right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
Failed to name a further educational placement by 31 March in the year of transition in line with statutory guidance.
Had not finalised an amended EHC Plan following a further annual review in March 2022.
Did not properly communicate with her about the annual review meeting and its purpose in March 2022.
Mrs X says the faults impacted Y’s education, and has caused her frustration, distress, and uncertainty.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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 Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I spoke to Mrs X about the complaint and considered information she provided.
I considered information provided by the Council.
Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Background Information Education, Health and Care plans 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.
The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
SEND Tribunal Certain decisions related to special educational needs (SEN) have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
Some of the decisions which are appealable and usually out of our jurisdiction include about the provision specified in section F of the EHC Plan and the placement named in section I.
Annual reviews The SEND code of practice (the Code) provides guidance to councils on how to ensure it fulfils its statutory duties.
A council must review a child’s EHC Plan at least every 12 months. The Code says in most cases, reviews are most effective when led by the child’s school.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a 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) The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”.
(SEN Code paragraph 9.176) Following comments from the child’s parent or the young person, if the council decides to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Transfer to post-16 education For young people moving from secondary school to a post-16 institution or apprenticeship, the review, and any amendments to the EHC Plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. (Section 18(1) SEND Regulations 2014 and SEN Code paragraph 9.180) What happened In 2020, Y was a young person of secondary school age with SEN and had an EHC Plan. Y moved to the Council area in 2020. The Council accepted responsibility for Y’s EHC Plan and began consulting for appropriate schools in mid-December 2020. Y was educated in an alternative provision school from early 2021.
Y’s school arranged an annual review of the EHC Plan which took place at the end of May 2021. The review agreed that Y required an amended plan after some reassessments. After the review meeting the school sent the Council a copy of the report. It did not send a copy of the report to Mrs X.
Following the annual review, a Speech and Language Therapist (SaLT) assessed Y in May and June 2021. She was also seen by an educational psychologist in June 2021. Both professionals made recommendations and sent copies of their reports to the school.
In the summer of 2021, the Council spoke with Mrs X who confirmed Y would continue at the same alternative provision in September 2021.
In late November 2021 the Council sent a draft amended EHC Plan to Mrs X for her comments. Mrs X was unhappy with the delay in providing the draft EHC Plan and complained to the Council in early December 2021. Mrs X said she believed the Council had not completed a review of the EHC Plan since Y moved to the area in 2020 and said this had delayed her right of appeal to the SEND tribunal. Mrs X also requested additional reports be included in the plan, including the educational psychology and SaLT reports completed summer 2021.
The Council responded 14 days later and accepted it was at fault for not issuing a decision notice about whether it would amend, maintain, or cease the plan. The Council apologised and said the reason for the delay was due to staff bereavement and illness. The Council told Mrs X it had held the review in May 2021, and that there are no statutory timescales for issuing a draft amended plan. It said it would inform Mrs X about her right to appeal to the SEND Tribunal when it issued the final plan.
In late January 2022 Mrs X further complained to the Council that it had failed to name a post-16 placement in Y’s EHC Plan. The Council did not respond to this as a formal complaint but told Mrs X that it would name the type of post-16 placement in the final EHC Plan.
On 25 January 2022 the Council sent Mrs X a copy of the final EHC Plan following the review in May 2021. The plan named the type of post-16 placement as a mainstream setting but did not name a specific school. The Council told Mrs X the school was waiting for a copy of the updated educational psychologist report, and that once this was received Y’s school would complete another review of the EHC Plan. It informed Mrs X of her right of appeal to the SEND Tribunal for the plan it had sent her.
In late February 2022 Mrs X further complained to the Council. She said Y’s EHC plan did not reflect her needs and omitted reports from the SaLT and educational psychology. Mrs X again told the Council it was obligated to complete a review of the plan and name a post-16 placement.
The Council issued a stage 2 response in late March 2022. The Council told Mrs X it would not respond to her complains about the content of the plan because she had the right to appeal the content of the plan to the SEND Tribunal.
Mrs X said she did not submit an appeal to the SEND Tribunal because she believed a review was taking place to include information she thought was missing.
In early March 2022 the school held an EHC Plan review meeting which Mrs X attended. It sent copies of the meeting to the Council, but not to Mrs X. The Council decided to amend the EHC Plan and sent Mrs X a draft copy of the plan eight weeks later in late April 2022. The Council said the delay in sending the draft was because it did not include Y’s views and because Mrs X asked for more time to include other reports.
Between April 2022 and June 2022 Mrs X communicated by email with the Council about additional reports for the EHC Plan. Mrs X asked the Council to include a historical physiotherapy report and the educational psychology report from July 2021 in the EHC Plan. Council officer A said the Council would include relevant information from the educational psychology report. Officer A also asked Mrs X to provide a copy of the historical physiotherapy report as well as the contact details for the physiotherapist. Mrs X told the Council she would obtain the historical report from the previous Council area, but that this may take some time. The Council agreed to delay issuing the updated final EHC Plan to give Mrs X time to obtain the historical report.
In June 2022 Mrs X provided the contact details for the new physiotherapist to Council officer B and said she was waiting for the previous authority to send the historical report. Council officer B contacted Mrs X and said officer A was waiting for her to provide the historical and updated reports. Mrs X responded that she was confused as she believed the Council was obtaining the reports.
In July 2022 a specialist sixth form for young people with specific learning disabilities offered Y a post-16 education placement. The Council issued the final EHC Plan and sent a copy to Mrs X with this placement named. The Council informed Mrs X of her right to appeal to the SEND Tribunal if she was unhappy with the content of the plan and named placement.
The Council said there was a delay in finalising the plan because Mrs X had not provided it with the physiotherapy report she had wanted to be included. Mrs X told us she believed the Council was obtaining the reports.
Mrs X remained unhappy and brought her complaint to us.
In response to our enquiries, the Council told us: The SaLT and educational psychology reports completed in June and July 2021 were not sent to the Council by the school following the review in May 2021. The Council requested the reports in December 2021 but did not receive them in time to include them in the final EHC Plan in January 2022.
The Council issued the final EHC Plan in January 2022 to give Mrs X her right of appeal to the SEND tribunal about the content of the plan.
The school sent Mrs X a letter inviting her to the March 2022 meeting but could not find a copy of the letter. The Council said the Code does not set out that invitations must be issued by letter or detail the purpose of the meeting.
The school should have sent a copy of the meeting record to Mrs X after the reviews. The Council said the school were unaware of this duty. The Council said it had shown the school the Code outlining their responsibilities and will provide additional training to ensure this does not happen again. The Council apologised on behalf of the school.
The Council delayed in sending the EHC Plan after March 2022 because Mrs X had requested additional reports be included and Mrs X had refused an offer from a school. A final plan was issued in July 2022 naming a placement.
Analysis Delay in sending the updated EHC Plan May 2021 The Council should have sent Mrs X a decision letter within four weeks of the review meeting saying whether it would amend, maintain, or cease the plan. The Council chose to amend the plan but did not send the decision letter. This is fault and the Council has already apologised to Mrs X for the delay. This is an appropriate remedy for any injustice caused by this delay.
The Council sent the draft EHC Plan to Mrs X at the end of November 2021 and a final plan at the end of January 2022; five and seven months after the decision letter was due.
The Code states if a Council decides to amend a plan, it must start the process of amendment “without delay”. The Ombudsman considers that Councils should follow the Code unless there is good reason to deviate. The Council has not provided a good reason why it took five months to issue a draft plan. After the Council sent the draft, it sent the final plan within 8 weeks in line with statutory timescales. The five-month delay in issuing the draft plan is fault.
The delay in issuing the draft EHC Plan then delayed the Council sending the final plan. This then delayed Mrs X’s right of appeal to the SEND tribunal about the content of the plan, including the provision provided and the named school. The matter also caused Y uncertainty about the provision she was to receive. However, there is no evidence of disruption to Y’s education because of the delay in sending the final plan, therefore I do not consider this caused Y any further injustice.
Delay in sending the updated EHC Plan March 2022 The Council sent Mrs X the decision letter to amend the EHC Plan alongside a draft of the plan eight weeks after the March 2022 review. This was not in line with statutory timescales and is fault. This caused Mrs X frustration and uncertainty about the outcome of the review meeting.
The Council sent Y’s final EHC Plan in July 2022, 10 weeks after the draft plan was sent. The Council should have issued the final plan within 8 weeks. Not doing so was fault. However, Mrs X wished to have additional reports included in the final plan which contributed to the delay. Therefore, this did not cause her a significant injustice.
Reports not included Mrs X said the final EHC Plan dated January 2022 did not include information and recommendations from the educational psychology and SaLT reports completed in summer 2021. If Mrs X was unhappy with the content of the plan, including any provision and the named educational placement, she had a right of appeal to the SEND Tribunal. The Council informed Mrs X of this right. Therefore, it is reasonable to have expected her to do this and we will not investigate this further.
Mrs X also complained the draft EHC Plan dated April 2022 did not include information from Y’s physiotherapist in section C of the plan. Mrs X thought the Council was obtaining this report. However, emails show Mrs X agreed to obtain the historical report and did not. Therefore, the Council is not at fault.
Delay in naming a post-16 placement Mrs X complained the Council had not named a post-16 educational placement by 31 March 2022. The Council issued a final EHC Plan in January 2022. The plan named the type of post-16 setting Y would attend but did not name a specific placement.
The SEND Regulations 2014 say that the Council must name the type of provision the young person will attend. The Code says that the Council must name the institution the young person will attend. The Council followed the Regulations by naming the type of provision Y would attend and was therefore not at fault.
In any case, we cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this. Once the Council issued the final plan in January 2022 Mrs X could have taken the matter to the SEND Tribunal. The Council informed Mrs X of this right, and therefore it is reasonable to have expected her to do so.
Meeting minutes not sent The Code says the school is best placed to arrange a child or young person’s annual review as they will know the child best. The Council asked Y’s school to arrange the review on its behalf. This is in line with the Code and is not fault.
Mrs X complained she was not sent a record of the meeting following the review in March 2022. The responsibility of sending this information is with the school. The Ombudsman has no jurisdiction to investigate the actions of schools, but the Council does have a role in ensuring schools complete annual reviews in line with the Code. The Council said it has reminded the school of its duty to send the information to the parent and young person after the meeting and will offer training to relevant school staff to ensure this does not cause injustice to others.
Agreed action
Within one month of the final decision, the Council agreed to: Write to Mrs X and apologise for the frustration and uncertainty it caused when it delayed sending the decision letter after the annual review in March 2022.
Pay Mrs X and Y £150 each to acknowledge the frustration and uncertainty caused by the delay in issuing Y's draft EHC Plan and consequent delay in issuing a final plan between May 2021 and January 2022.
Provide the Ombudsman with evidence it has carried out these actions.
The Council has already provided evidence it has updated relevant officers regarding timescales for EHC Plans including: Informing relevant officers of recent caselaw R (L, M, and P) v Devon County Council [2022] EWHC 493 which says Councils must, from March 2022, send the decision letter alongside any proposed changes to the EHC Plan within 4 weeks of the review meeting and issue a final plan no later than 8 weeks after the decision letter is sent.
Final decision
I completed my investigation. I have found evidence of fault and have made recommendations to remedy the injustice caused by the fault. The Council has already provided evidence of changes it has made to prevent recurrence of the fault.
Investigator's decision on behalf of the Ombudsman