Summary: Mr X complained the Council failed to carry out his daughter, Miss D’s, annual review after a Tribunal hearing. The Council was at fault for not holding Miss D’s annual review within the statutory timescales but this did not cause her a significant injustice.

The complaint

1. Mr X complained that the Council failed to carry out his daughter, Miss D's, annual review in January 2020.
2. As a result, he says this has caused the family uncertainty because they do not know if Miss D is receiving the support she needs. He says this uncertainty is compounded by the fact Miss D did not have an annual review in 2018 and her latest Education, Health and Care (EHC) Plan is based on information from 2018.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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.

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How I considered this complaint

7. I spoke to Mr X and considered his view of his complaint.
8. I made enquiries of the Council and considered the information it provided. This included a copy of the Tribunal order and Miss D’s EHC Plan.
9. I considered the relevant legislation and guidance. This included the Child and Families Act 2014 (the Act), the Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Special Educational Needs and Disability Code of Practice 2015 (the Code).
10. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Education, Health and Care Plans

11. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
12. EHC Plans consist of the following sections:
• Section A – the views, interests and aspirations of the young person;
• Section B – the young person’s special educational needs (SEN);
• Section C – the health needs which relate to the SEN;
• Section D – the social care needs which relate to the SEN
• Section E – the outcomes sought for the young person;
• Section F – the special education provision required by the young person;
• Section G – any health provision required;
• Sections H1/H2 - any social care provision required; and
• Section I – the educational placement.
13. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final Plan. This duty is non-delegable.
14. Where a parent or young person disagrees with the contents in some sections of the plan there is a right of appeal to the Tribunal (the SEND Tribunal). We therefore cannot challenge the contents of an EHC plan.
15. Councils should ensure an annual review of the child's EHC Plan is carried out at least every 12 months.
16. The annual review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan. Reviews should consider the special educational provision made for the child. Following a review, the school must send a report to the council to consider what changes, if any, should be made to the EHC plan.

Background

17. Miss D has had an EHC Plan for many years. She has severe disabilities which significantly affect her mobility. Miss D is unable to talk and is entirely dependent on specialised communication methods.
18. Miss D’s annual review should take place in January of each year.

Previous complaint to the Ombudsman

19. Mr X previously complained to the Ombudsman that the Council had not made suitable alternative education arrangements for Miss D since she stopped attending school in February 2018.
20. We found the Council was at fault. We recommended, and the Council agreed, a payment of £2,000 to remedy the injustice caused to Miss D for the four month period which we investigated.
21. Mr X had appealed to the Tribunal, who heard her case in October 2019. A number of professionals and specialists attended, wrote reports and gave evidence.
22. The Tribunal considered Sections B, F and I of Miss D’s EHC Plan. One of its orders stated Miss D should receive 131 hours of speech and language therapy over the next 12 months, 78 hours of which should be actual therapy. The rest would consist of lesson preparation, administration and so on. Miss D‘s Plan also contained significant other special educational provision.
23. The Tribunal order also stated “we examine[d] the requests that we make recommendations to amend Sections C, D, G, and H1/H2 of [Miss D’s] EHC Plan. Before and during the first day of hearing, the parties reached agreement on the content of these Sections and we were content to recommend that the agreed text be incorporated into [Miss D’s] EHC Plan”.
24. Following this, the Council issued a final amended EHC Plan on 6 December 2019 which was in line with the Tribunal’s findings and recommendations.

Miss D’s Annual Review – January 2020

25. Miss D’s annual review was due in January 2020. However, the Council refused saying “the reasons for not calling an annual review in January 2020 are clear and based on a desire to provide the provision for [Miss D] as directed by SENDIST Tribunal… the local authority is satisfied that the Tribunal hearing in October 2019 decided upon the content of [Miss D’s] final EHC Plan… that was current and up to date on 6th December 2019… review of the provision detailed within it one month later, including the Christmas holiday, during January 2020, would not have allowed the provision enough time to yield any progress”.
26. Mr X complained to the Council. He remained unhappy and complained to us.
27. During my investigation the Council wrote to me. It said it had sought advice from the Department for Education (DfE) regarding the process of holding annual reviews during tribunal processes and received incorrect advice. The Council said the DfE has apologised for this and amended its advice. The Council is reviewing its files to ensure it has not overlooked or refused other young people an annual review and has taken steps to arrange Miss D’s annual review.

My findings

28. There is nothing in law which states a Council’s duty to hold an annual review within the timescales set out in legislation is halted by Tribunal proceedings. Miss D’s review should have taken place in January 2020. Although I acknowledge the Council was acting on the advice from the DfE when it told Mr X it would not hold Miss D’s annual review, the fault for failing to arrange the review remains with the Council.
29. However, it is unlikely Mr X or Miss D were caused an injustice by the Council’s decision not to hold an annual review in January 2020. This is because the amended final EHC Plan the Council issued in December 2019 was based on the Tribunal’s findings which had been made only weeks prior to January 2020.
30. After Miss D’s next annual review, if Mr X believes any amendments to her EHC Plan demonstrate she experienced an injustice because she did not have an annual review in January 2020, he will be able to complain to the Council and, if he remains unhappy, come to the Ombudsman.
31. Mr X says the information about Miss D was out of date when the Council issued Miss D’s final amended Plan. The Plan was based on evidence submitted by both sides to the Tribunal. The Tribunal considered this information was sufficiently robust to come to a finding on Miss D’s Plan. If Mr X thought any of the information was out of date, this should have been raised during proceedings.
32. Mr X also said the Tribunal cannot consider section A of the Plan which detailed Miss D’s views, interests and aspirations. Therefore, these have not been updated since 2018.
33. Although the Tribunal cannot consider the content of Section A, the provision in Miss D’s Plan ensures she receives the support she needs to meet her educational, social and health requirements. This in turn allows her to meet her aspirations and needs.
34. The Council has arranged for Miss D to have an annual review and she will be able to provide comments to ensure Section A is updated. It has also said it has started the process to review the files of other young people to ensure they have not been refused an annual review because of similar circumstances. So even if I had found the fault had led to an injustice for Miss D, these actions are satisfactory to remedy this.

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Final decision

35. There was fault but this did not cause an injustice. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman