The Ombudsman's final decision
Summary: Mrs X complained about the process of reviewing Ms Y’s Education, Health and Care Plan and about delays in securing the named provision. We find the Council at fault for missing statutory deadlines and for delays in securing provision. The Council has agreed to apologise and make a payment to recognise the injustice caused by the fault.
The complaint
Mrs X complains about the process of completing an Education, Health and Care (EHC) Plan review for her daughter, Ms Y and delays in securing the named provision. Specifically, Mrs X says the Council: failed to complete the review within statutory time limits; told her to commission private reports at cost to herself; failed to name an educational setting in the EHC Plan; missed deadlines during the tribunal process; and failed to provide therapies listed in the EHC Plan between January 2023 and September 2023.
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 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) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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.
Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated We cannot usually investigate a complaint about events that took place more than 12 months before the complaint was brought to the Ombudsman. Mrs X first contacted the Ombudsman in November 2023, meaning anything that took place before November 2022 would be considered late. This includes the EHC Plan review Mrs X has complained about and the alleged period of delays until the final plan was issued.
However, Mrs X appealed to the SEND Tribunal to challenge the content of the EHC Plan, which delayed her in raising a complaint sooner. For this reason, I have exercised discretion to investigate matters going back to March 2022.
I have investigated whether the Council failed to complete Ms Y’s EHC Plan review within statutory time limits and whether it failed to secure named provision following the tribunal decision. I have also investigated whether the Council told Mrs X to commission private reports as part of the EHC Plan review process.
I have not investigated the alleged failure to name an educational setting in the EHC Plan, costs associated with appealing the final plan, or deadlines that were missed during the tribunal process. This is because these aspects of Mrs X’s complaint were for the SEND Tribunal to consider.
How I considered this complaint
I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and policy A young person with special educational needs (SEN) may have an EHC Plan. This sets out the young person’s needs and what arrangements should be made to meet them.
The process for reviewing and amending EHC Plans is set out in legislation and government guidance. Councils must review EHC Plans once a year, and the annual review must take place within 12 months of the date of the previous EHC Plan.
Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the Council. Following the meeting, the school or college sends the review paperwork to the Council. The second stage of the annual review is the Council’s decision notice. Within four weeks of the meeting, the Council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 20154 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 (an amendment notice, also known as a draft plan) providing details of the proposed amendments, including copies of any evidence to support the proposed changed. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code Paragraph 9.194). It must do so ‘without delay’.
Following comments from the child’s parent, or the young person, if the Council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the existing EHC Plan and amendment notice to the parents. (Section 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196) Caselaw has established that when a Council is amending an EHC Plan, it should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended plan.
Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s decision to cease their child or young person’s EHC Plan. Parents can also appeal the special educational provision, or the school named in the EHC Plan. Parents can only appeal the content of an EHC Plan, including the school named, once a Council issues a final plan.
What happened Ms Y has SEN and her education is supported by an EHC Plan.
On 9 March 2022 the Council held an annual review and decided to amend Ms Y’s plan. Mrs X has said the Council told her to fund and provide it with private reports on Ms Y’s needs to use as part of the review, which she did at a cost to herself.
The Council issued a draft amended EHC Plan on 31 May 2022 which Mrs X provided comments on.
On 1 June 2022, the Council missed the 12-week deadline to issue a final EHC Plan for Ms Y.
The Council issued a final EHC Plan on 21 July 2022, approximately seven weeks after the deadline to do so. The EHC Plan provided for 1:1 speech and language therapy sessions three times a week, a specialist education and therapy service, specialist occupational therapy and physiotherapy sessions, and weekly counselling. The EHC Plan did not name an educational setting.
Mrs X appealed the content of the EHC Plan to the SEND Tribunal. The Tribunal process concluded in January 2023 and a new EHC Plan was issued, naming a specialist educational setting for Ms Y from September 2023. The EHC Plan provided for a specialised curriculum and small group learning, weekly 1:1 speech and language therapy sessions, counselling sessions, and weekly occupational and physiotherapy sessions.
The Council requested quotes from speech and language therapy providers but could not find any that had capacity to provide Ms Y with services until she started at her school in September 2023. The Council also consulted with physiotherapist providers and agreed a contract to arrange physiotherapy from May 2023.
Mrs X complained to the Council in September 2023. Mrs X said she was unhappy with the support the Council had offered throughout the process of reviewing Ms Y’s EHC Plan. Mrs X said the Council had told her to pay to have Ms Y’s needs assessed privately, had provided misleading information, had missed deadlines throughout the process, and had failed to secure the provision named in Ms Y’s plan.
The Council responded to Mrs X’s complaint in October 2023. It said Mrs X’s complaint related to the SEND Tribunal process and issued from more than 12 months previously and was not something it could investigate.
In response to our enquiries, the Council has said it has no evidence on its systems to show it instructed Mrs X to privately fund her own reports to be used in the EHC Plan review.
Analysis The annual review meeting for Ms Y’s EHC Plan was held on 9 March 2022. If the Council had completed this process in line with the statutory time limits, the final amended EHC Plan would have been issued by 1 June 2022. The final amended EHC Plan was actually issued on 21 July 2022, approximately seven weeks late. This is fault. Failing to issue a final EHC Plan within the relevant deadlines caused uncertainty for Mrs X and Ms Y and delayed their rights to appeal to the SEND Tribunal, which is injustice.
When considering complaints, if there is a conflict of testimony or evidence, we make findings based on the balance of probabilities. This means weighing up the available evidence and basing our findings on what we think was more likely to have happened. Sometimes it is not possible to come to a finding, even on the balance of probabilities, where there is no independent evidence and both sides have differing view on the same events.
As part of the review process Mrs X has said the Council instructed her to commission private reports on Ms Y’s needs. The Council has said it has no record of this on its systems. In this part of Mrs X’s complaint, I do not have sufficient evidence to rely on to say, even on the balance of probabilities, that the Council was at fault.
Following the decision of the SEND Tribunal in January 2023, the Council had a duty to secure the provision set out in Ms Y’s EHC Plan. The Council could not secure the speech and language therapy sessions for approximately nine months, or the physiotherapy sessions for around four months. While I appreciate the Council consulted with various providers, delay in securing the provision named in Ms Y’s EHC Plan is fault and caused an injustice to Ms Y as she did not receive the provision she was entitled to.
Agreed action
To remedy the injustice identified above, the Council has agreed to complete the following actions within one month: Apologise to Mrs X and Ms Y for failing to complete the EHC Plan annual review within statutory time limits and for the delays in securing named provision; Pay Mrs X £200 to recognise the injustice caused by the delay in issuing a final EHC Plan; and Pay Mrs X £2,000 to recognise the impact on Ms Y for the provision she missed out on between January 2023 and September 2023.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I find the Council at fault for missing statutory deadlines when reviewing Ms Y’s EHC Plan and for delays in securing the named provision. The Council accepted my recommendations and I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman