Bracknell Forest Council (20 011 753)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 07 Jul 2021

The Ombudsman's final decision:

Summary: Ms G complains the Council reviewed her son’s Education, Health and Care Plan but then refused to recognise it as a review, which denied her a right of appeal to a tribunal. We uphold the complaint, finding the Council’s reasons for not recognising the review being incompatible with relevant legislation and guidance. We recommend the Council apologises, pays Ms G £250 for denying her a right of appeal to a tribunal and undertakes training with its staff.

The complaint

  1. The complainant, who I will refer to as Ms G, says the Council carried out a review of her son’s Education, Health and Care Plan (EHCP) and failed to issue a decision following the review.
  2. Ms G says by the Council not issuing a review decision, it denied her a right of appeal to a tribunal, in which she could have sought to improve her son’s EHCP and challenge the Council’s review decision.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. Before issuing this decision statement I considered:
  • Ms G’s written complaint to the Ombudsman and any supporting information she supplied.
  • The Council’s stage one, stage two and stage 3 complaint responses to Ms G.
  • Relevant law and guidance referred to in the text below.
  • Ms G and the Council’s responses to the draft decision.

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What I found

  1. Section 44 of the Children and Families Act 2014 provides the legislation for reviews and re-assessment of EHCP’s. It says a local authority must review an EHCP that it maintains in the period of 12 months of the date it was first made and in each subsequent period of 12 months starting with the date on which the plan was last reviewed.
  2. The Special Educational Needs and Disability (SEND) Code of Practice (COP) provides more detailed information for how an EHCP should be reviewed and maintained. Section 9.166 of the COP says an EHCP must be reviewed by the local authority as a minimum every 12 months.
  3. SEND COP states following a review of an EHCP, the local authority must, within four weeks of the review, decide whether to keep the EHCP as it is, amend the EHCP or cease to maintain it. It must notify the child’s parent or the young person of its decision. It should also notify the school or other institution the young person attends.
  4. SEND COP states when the local authority issues its decision following an EHCP review, it must notify the child’s parent or the young person of their right to appeal and the time limits for doing so. This applies if the local authority decides not to amend the EHCP, or decides to cease to maintain it.

Key facts

  1. Ms G’s son had his first EHCP review in February 2020. Ms G says the Council received further expert advice in May 2020 that meant an early review was necessary. Ms G says this was detailed in her son’s care plan by the Council to be completed by the end of September 2020.
  2. The review took place on 17 September 2020. Ms G did not attend the meeting but had provided her representations in writing prior to the meeting.
  3. Ms G says following the review, the Council has not issued its decision whether to amend, cease or maintain the plan and this has denied her a right to appeal to a tribunal. Ms G says she would have liked to appeal the current content of her son’s EHCP at the tribunal.
  4. In the Council’s stage one complaint response to Ms G dated 13 November 2020, it said the review that took place on 17 September 2020 was an early review.
  5. The Council said because it was an early review, it does not have to follow the statutory process and timeframes that would be relevant for an annual review.
  6. The Council’s complaint response dated 29 January 2021 said annual reviews for an EHCP can only be called by a local authority, and because this one was called by Ms G’s son’s school, it could not be the annual review described in the legislation. It also said the annual review was not due for another five months and the meeting that took place was an ‘early review’ which does not have to adhere to the statutory process.
  7. The Council said their attending officer was only aware of the September 2020 review two days before it took place. Ms G disputes this and says she emailed the officer ten days before the meeting.
  8. In response to the draft decision, the Council said it was only when its officer arrived at the meeting that it was established the EHCP would be discussed. The Council also said Ms G had asked for a reassessment of the EHCP and the Council agreed to this.
  9. The Council apologised in the stage three response that some of its communications with Ms G had referred to the review on 17 September 2020 as the annual review.
  10. The Council has apologised for its use of terminology. I note the Council has started some training with its staff to avoid incorrect use of terminology.
  11. Ms G’s son’s EHCP was reviewed in March 2021 in line with the 12 month period.
  12. In response to the draft decision, the Council accepted Ms G was denied her right of appeal to a tribunal. It said this was because it had not corrected the school in its use of terminology.

My findings

  1. The Council agrees a review meeting took place in September 2020, but says this was not a review in line with the statutory process because the school called the review, and it was five months before the annual review date.
  2. Having considered the relevant law and SEND COP detailed earlier in this decision, I find these are not reasons for not following the statutory process following the review.
  3. The law and SEND COP say an EHCP review must be carried out by the local authority as a minimum every 12 months from the last review date. This means reviews can take place at any time in that period and do not have to wait for the 12 months to have elapsed. It is stated in law that the local authority must review the plan, but the Code does not prevent a School requesting or arranging a review with the co-operation of the local authority as happened here.
  4. The Council attended the review on 17 September 2020 but said its officer did not know about the meeting until two days before. This is disputed by Ms G who said it had been detailed in her son’s care plan and that she had emailed the Council about the meeting ten days prior to it. The Council said the paperwork sent out by the school and by its officers had referred to the meeting as an annual review in error. But it was open to the Council to rearrange the meeting if necessary and correct the terminology used by the school or its own officers. It did not do this.
  5. Therefore, I am satisfied from reading the complaint and the Council’s responses that the event that took place on 17 September 2020 was a review of Ms G’s son’s EHCP. It should have followed the statutory process that would have allowed Ms G her right to appeal to tribunal. This was fault by the Council.
  6. By not following the statutory process, Ms G was denied to opportunity to appeal her son’s EHCP at a tribunal. This is her injustice.
  7. I recognise the Council’s acknowledgement in response to the draft decision that Ms G was denied her right of appeal to a tribunal. It said this was because it had not corrected the schools use of terminology, which referred to the meeting in September 2020 as an annual review. The Council has used similar terminology to the school and apologised for this in its stage three response. Therefore, I do not consider the school’s use of terminology to be the only reason Ms G was denied her right to appeal to a tribunal.

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Agreed action

  1. To remedy Ms G’s injustice, the Council has agreed to pay her £250 for denying her the right to appeal to a tribunal and resulting distress caused. It should complete this action within 20 working days of the final decision and send confirmation to the Ombudsman.
  2. I also recommend, within one month of this final decision, the Council apologise to Ms G for not following the statutory process that would have provided her with a right of appeal to a tribunal. It should provide a copy of the apology sent to the Ombudsman.
  3. The Council has agreed to consider lessons that can be learned from this case. Within three months of this decision, I recommend the Council should ensure its officers receive relevant training to understand early reviews must follow a statutory process. This should also include making it clear to those attending a meeting when something is not an annual review. It should send a record of the training carried out with its staff and any lesson plans used. The Council said it will also invite relevant schools to this training.

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Final decision

  1. The Ombudsman upholds a finding of fault against the Council causing injustice to Ms G, for the reasons set out above. I have set out recommendations for how the Council can remedy this injustice in a way that I consider will provide a fair outcome to the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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