Summary: Mrs X complained the Council delayed carrying out the annual reviews for her children’s Education, Health and Care plans, and delayed issuing the plans after the reviews were carried out. She also complained the Council did not follow the correct process for a child transitioning to a new setting. Mrs X says this caused avoidable stress to her and meant her children were left with outdated plans. We have found fault by the Council and the Council has agreed a remedy to address the injustice caused.

The complaint

1. Mrs X complains about the annual reviews for the Education, Health and Care Plans for her children. She says the Council incurred delays in holding annual reviews and delayed issuing the plans after the reviews were carried out.
2. Mrs X also complains the Council did not follow the correct process for a child transitioning to a new setting. She says this resulted in her children struggling at school with outdated plans and caused stress and inconvenience to the family.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. A child with special educational needs may have an Education, Health and Care plan (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. Only the tribunal can do this.
9. The courts have said where a complainant has appealed to the tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures.
10. 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)
11. 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)
12. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

13. I have exercised discretion in investigating Mrs X’s complaint about events prior to 12 months ago. This is because the Council provided its final response in March 2020 and Mrs X brought her complaint to us within 12 months of this date.
14. I have discussed the complaint with Mrs X and considered the information she provided.
15. I have made enquiries to the Council and considered the information it provided.
16. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
17. I have also considered the relevant legislation and statutory guidance as set out below.

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What I found

Special Educational Needs and Education, Health and Care plans

18. A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
19. Some may require an Education, Health and Care assessment for the local authority to decide whether it is necessary to make provision in accordance with an EHC plan.
20. The purpose of an EHC plan is to make special educational provision to meet the child or young person’s special educational needs. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
21. The Children and Families Act 2014 (‘the Act’), the Special Educational Needs Code of Practice 2015 (‘the Code’) and the Special Educational Needs and Disabilities Regulations 2014 (‘the Regulations’) provide detailed guidance to councils about how they should manage the process of:
• assessing children and young people for an EHC plan;
• how to decide whether to issue a plan;
• the content of the plan; and
• how to implement, monitor or cease a plan.
22. If parents or a young person disagrees with the content of an EHC plan, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

Annual reviews

23. Councils should ensure an annual review of the child’s EHC plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain, cease or amend the EHC plan.
24. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
25. 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
26. The Special Educational Needs Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
27. The Council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014)
28. 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 EHC plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
29. If the council decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
30. Where a child is transferring from one phase of education to another, for example, from primary to secondary school, their EHC plan must be reviewed and amended by 15 February in the calendar year of the transfer. (s18 (1)(b) SEND Regulations 2014)

Background

31. Mrs X has three children with SEN. This decision statement relates to two of Mrs X’s children, who I will refer to as Child A and Child B.
32. Both Child A and Child B have EHC plans. Both children have an Autistic Spectrum Disorder and other health conditions. Both children also require support from a personal assistant to help with their social care needs.
33. Child A’s EHC plan issued in March 2018 stated they would attend a mainstream primary school until Summer Term 2018, and a special education school from September 2018 (School D). The plan set out the type and amount of support they required to meet their intended outcomes and specified that a formal review should take place no later than February 2019.
34. Child A was due to transition from a primary school setting to a secondary school setting in September 2020. School D provides education for children of primary school and secondary school age. Mrs X wanted Child A to continue to attend School D when they transitioned to the secondary school phase of their education.
35. Child B’s EHC plan issued in November 2017 also set out the type and amount of support required to meet their intended outcomes. The plan stated Child B would also attend School D. It specified that a formal review should take place no later than May 2018.

Child A’s annual review

36. In April 2019, the Council says it received the annual review paperwork from Child A’s school, with an annotated version of the EHC plan. The Council says it made amendments to the EHC plan during April and May 2019.
37. The Council says it issued the draft EHC plan on 14 June 2019.
38. The Council says Mrs X asked to meet with it to discuss the draft plan. It says this meeting took place in August 2019. The Council says it updated the plan following this meeting.
39. In September 2019, the Paediatric Physiotherapy Service provided the Council with a letter recommending the school make additional provision for Child A. The Council says this provision was incorporated into Child A’s EHC plan.
40. The Council says Mrs X asked for further amendments to be made to Child A’s plan in September 2019. It says it issued an amended draft plan on 20 December 2019.
41. The Council says it held a meeting with Mrs X on 24 January 2020 to discuss the plan further, and that it made amendments to the plan during this meeting. The Council says it issued the final EHC plan on 30 January 2020.
42. Child A’s school held an annual review of Child A’s EHC plan on 25 March 2020.
43. On 17 September 2020, the Council produced a draft amended plan. It says it issued this to Mrs X on 22 September 2020.
44. The final EHC plan was issued on 2 October 2020. The plan said Child A would continue to attend School D.
45. Later that month, the Council says Mrs X requested an emergency meeting to review the plan. This was because Child A had transitioned into the secondary school phase of education at School D, and she wanted to discuss any additional support needs.
46. The Council says it asked School D to arrange an emergency annual review. The Council says the emergency review did not take place and it received no further contact from Mrs X regarding this request.
47. Mrs X says a review of the plan took place in October 2020.

Child B’s annual review

48. In April 2019, Child B’s school held the annual review of the EHC plan.
49. The Council says it sent the annual review papers to its EHC plan co-ordinator in June 2019.
50. The Council says it sent Child B’s draft amended plan to Mrs X in December 2019. It says Mrs X attended a meeting to discuss the plan on 21 January 2020.
51. The Council sent a further amended draft EHC plan to Mrs X on 30 January 2020.
52. The Council says Mrs X asked it to make some additional amendments to the plan in February 2020. It says it sent another amended draft plan to Mrs X on 19 February 2020.
53. The Council issued Child B’s final EHC plan on 2 March 2020.
54. Later that same month, School D carried out an annual review of the plan. The Council says it received the review paperwork on 7 May 2020 and issued a proposed amended plan to Mrs X on 15 May 2020.
55. The Council says Mrs X contacted it on 27 May 2020 to ask for an extension to the 15-day timescale to respond to the proposed amended plan. It says it did not receive any further response from Mrs X regarding the proposed plan.

Mrs X’s complaint

56. Mrs X complained to the Council about the delays in reviewing Child A’s and Child B’s EHC plans on 11 December 2019. She said the Council had taken months to issue revised plans despite her making several requests for updates. She said the Council had not completed the annual review process in accordance with the Regulations.
57. The Council responded on 27 January 2020. It acknowledged the delays and said they were due to an ongoing issue within the team. It apologised to Mrs X and said it was increasing staffing levels. It also said it proposed to review how annual reviews are managed so that they are completed in a timely manner.
58. Mrs X escalated her complaint to Stage 2 on 7 February 2020. She complained she had still not received a satisfactory plan for Child B as she said the existing plan lacked important information.
59. The Council provided a response on 2 March 2020. It said it had made some amendments to Child B’s plan and would respond to any further requests or comments Mrs X provided.
60. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us in October 2020.

Analysis

61. To determine if the Council is at fault in how it managed the review process, it is necessary to identify what should have happened. As previously stated, councils are required to:

• Ensure EHC plans are reviewed within 12 months of the last annual review
• Provide parents with a decision letter within four weeks of the review meeting
• Issue parents with an amended EHC plan if it decides to make amendments. It should do this as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents

Is there fault by the Council regarding Child A’s EHC plan?

62. I have seen a record of the annual review meeting held on 25 March 2020. I have also seen an EHC plan dated 17 September 2020 which the Council says is the draft amended plan created following the meeting (although this document is named as the “final” EHC plan instead of the draft). I have also seen the final EHC plan dated 2 October 2020. On this basis, I am satisfied the evidence confirms the annual review took place on 25 March, the draft plan was issued on or around 17 September and the final plan was issued on 2 October 2020.
63. The Council acknowledges it did not send Mrs X a decision letter within four weeks of the annual review meeting. As this is a statutory requirement, the Council’s failure to provide the decision letter is fault.
64. The evidence shows a period of delay following the annual review. The Council did not provide the final EHC plan within eight weeks of the amendment notice, and this failure to adhere to the statutory timescale is evidence of fault.
65. As stated at paragraph 30, where a child is transferring from a primary to secondary school setting, their EHC plan must be reviewed and amended by 15 February in the calendar year of the transfer. This means Child A’s plan should have been reviewed and amended before 15 February 2020.
66. The Council says it provided a final plan on 30 January 2020. However, Mrs X says it did not provide a final plan before the February deadline. In these circumstances, the evidence should provide clarification about what happened.
67. The Council says the final plan issued on 30 January 2020 was named Version 5. The evidence provided to support this shows the electronic file name as Version 5, but the document itself is named Version 4. It is dated 21 March 2018 and has an agreement date of 10 October 2019. Therefore, the evidence provided does not support the Council’s statement that the final EHC plan was issued on 30 January 2020. I have seen no other evidence to confirm the final plan was issued on this date either. On this basis, the Council is unable to demonstrate the final plan was issued on 30 January 2020.
68. The evidence shows the review was held on 25 March 2020 with the final plan issued on 2 October 2020. I acknowledge Child A remained at the same school following their transition to a secondary school setting. Nevertheless, the Regulations are clear that the relevant timescales must be adhered to. As the evidence indicates there was delay in this matter, I have found the Council to be at fault.

Is there fault by the Council regarding Child B’s EHC plan?

69. I have seen Child B’s final EHC plan dated 7 November 2017. It says the next formal review should take place no later than May 2018.
70. I have seen no evidence that a review meeting took place in or around May 2018, but I have seen a record of the annual review meeting which took place on 1 April 2019.
71. The Council did not send a decision letter to Mrs X after the annual review. As previously stated, this is a statutory requirement and the Council’s failure to issue a decision letter is evidence of fault.
72. Following on from the annual review in April 2019, there is further evidence of delay as the Council did not provide the draft EHC plan within eight weeks of the amendment notice. This delay is also fault by the Council.
73. The Council has not provided a copy of the draft EHC plan it says it issued in December 2019, but I have seen a copy of the draft plan issued on 30 January 2020. I have also seen a copy of the final EHC plan issued on 2 March 2020.
74. As stated at paragraph 23, councils should ensure an annual review is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The evidence shows there was a delay of 11 months in carrying out a review of Child B’s EHC plan, and this delay is further evidence of fault by the Council.
75. The Council says the delays incurred with both Child A’s and Child B’s EHC reviews are due to resource issues within its Statutory Review and Assessment Team, and a backlog of annual reviews. I acknowledge the reasons stated by the Council. Nevertheless, it remains that the Council is responsible for adhering to the statutory timescales for carrying out EHC plan reviews. On this basis, the delays identified in this statement are evidence of fault by the Council.

The Council’s record keeping

76. The evidence provided by the Council is unable to corroborate all the events it has described. This is because many of the dates on the Council’s documents do not match the dates it says they were created and/or issued. In addition, some documents appear to be incorrectly named. For example, as previously stated, the Council says Child A's final EHC plan (named by the Council as version 5) was issued on 30 January 2020, but the document provided to support this does not corroborate the explanation provided by the Council.
77. I acknowledge such documents are amended throughout the review process and different versions are therefore created. But it is important for councils to keep a clear and traceable audit trail throughout the process. This is so parents can easily identify and understand any changes made to the plan and when they were made. I consider this is particularly important in Mrs X’s case as she has three children with SEN, and therefore is required to monitor three separate EHC plans.
78. I have found the Council’s inaccurate record keeping to be confusing when reviewing the evidence provided and acknowledge it is likely to have caused confusion to Mrs X over the last few years. I have found this to be evidence of a lack of a robust administration process and is further evidence of fault.

What is the injustice to Mrs X?

79. The Council says the delays in the annual review process do not appear to have impacted adversely on Child A and Child B. It says it made amendments to the plans within a week of receiving the annual review paperwork.
80. Mrs X says Child A and Child B continued to attend School D, despite the delays to the review process.
81. However, Mrs X says the delay in reviewing Child A’s plan prior to their transition to a secondary school setting caused uncertainty as to whether they would be able to continue to attend School D. In addition, she says the delays in reviewing Child A’s and Child B’s plans caused uncertainty as to whether the Council was providing the correct level of support at school. She says this caused avoidable distress and worry to herself and her husband, which adversely affected their mental health. Mrs X says this impacted the whole family.
82. Mrs X also says she has spent a lot of time and trouble in trying to obtain up to date plans for her children, and in pursuing her complaint with the Council. She says despite her repeated contacts with the Council, she is angry it has continued to make the same mistakes.
83. Having reviewed Mrs X’s and the Council’s comments, I consider the worry and uncertainty caused by the delays identified caused a significant injustice to Mrs X and her family. This is because the evidence shows the issues complained about took place over a substantial period of time, and I am satisfied the delays identified caused Mrs X and her family avoidable distress. In addition, the Council’s failure to issue decision letters following the annual reviews effectively prevented or significantly delayed Mrs X’s appeal rights.

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Agreed action

84. To address the injustice identified, the Council has agreed to take the following action:

Within one month of the final decision:

• Provide an apology to Mrs X;
• Make a payment on behalf of Mrs X, her husband, Child A and Child B of £1,000 in recognition of the avoidable distress, worry and uncertainty caused by the delays while the plans were still in draft form, and
• Make a further payment of £200 to Mrs X in recognition of the time and trouble taken in pursuing the Council to provide up to date EHC plans, and in making her complaint;

85. Within 3 months of the final decision:

• Carry out an audit of current EHC plans managed by the Statutory Review and Assessment Team to identify any other cases where there have been delays in the review process within the last 12 months, and
• Produce an action plan to provide appropriate remedies to the cases identified where there has been delay.

86. Within 6 months of the final decision:

• Carry out a review of its processes to ensure it is carrying out annual reviews, issuing decision notices and finalising amended EHC plans in line with the statutory guidelines.

The Council is required to provide us with evidence it has complied with the above actions.

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Final decision

87. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman