Summary: Mrs X complained the Council rejected her request for an interim review of her daughter’s Education Health and Care Plan (EHC Plan). Mrs X also complained the Council failed to consider new reports available and failed include an educational setting when it did produce her daughter’s EHC Plan. Mrs X says this delayed production of a suitable EHC Plan which has resulted in lost time to prepare for transition to secondary school. The Ombudsman found fault with the Council. The Council agreed with the Ombudsman’s recommendation to apologise to Mrs X and provide her with a payment of £250 to reflect the distress, frustration and inconvenience caused by the Council’s delays and fault.

The complaint

1. Mrs X complained the Council rejected her request for an interim review of her daughter’s, Y’s, Education Health and Care Plan in Autumn 2020, despite new reports showing a change in her daughter’s educational needs.
2. Mrs X also complained the Council did not include information from the new reports she provided to the Council in response to the amendment notice within the Education Health and Care Plan (EHC Plan) produced on 15 February 2021.
3. Mrs X says she objected to the Council’s December 2019 amendment notice for the EHC Plan. Mrs X says she complained about the lack of provision for her daughter’s educational setting due to start in September 2021. Mrs X says the Council issued the amendment notice as the final EHC Plan on 15 February 2021 anyway.
4. Mrs X complained the Council failed to address her concerns within its complaint response.

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What I have investigated

5. I have investigated Mrs X’s complaints about the Council rejecting her request for an interim annual review, the Council’s failure to consider up-to-date information and delays in producing Y’s EHC Plan.
6. I have not investigated Mrs X’s complaint about the Council failing to name a school in Y’s EHC Plan or any dispute over the contents of the EHC Plan. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. 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.
10. 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

11. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Mrs X and the Council had opportunity to comment on my draft decision. Both Mrs X and the Council accepted my draft decision so I have reached my final decision.

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What I found

Relevant law and guidance

Children with special educational needs

13. A child with special educational needs may have an EHC Plan. This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated. The EHC Plan is set out in sections. We cannot make changes to the sections about special educational provision or name a different school. Only the SEND Tribunal can do this.
14. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Annual reviews

15. 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 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 suitable. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
16. If the child is in education, the school usually coordinates the review meeting; however, the council is responsible for ensuring reviews are held. Two weeks before the start of term, councils must provide a list of all children who require an EHC Plan review that term to headteachers.
17. 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)
18. 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. These would provide 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)
19. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
20. 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)
21. 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. This must be within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
22. 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.
23. 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)

Our guidance on remedies

24. We expect bodies in jurisdiction to treat people fairly and with respect, and not to expose the public to unnecessary distress, harm or risk as a result of their actions or inactions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. The amount depends on the circumstances of the case.
25. When we assess distress, we consider the complainant’s individual circumstances (such as their state of health and age). In reaching a view on remedy we will consider all the circumstances including:
• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the person affected is vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.
26. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.

What happened

Events before August 2020

27. The Council produced an EHC Plan for Y on 24 October 2017. The EHC Plan noted that Y had special educational needs with expressive language skills, selective mutism, independent learning skills, anxiety and sensory needs.
28. Y’s school held her back a year in October 2018 keeping her in year 4 following the annual review.
29. Y’s school completed a further annual review in October 2019 and recommended the EHC Plan stayed in place.
30. The Council amended Y’s EHC Plan on 4 February 2020. The Council did this to reflect that Y was technically in year 6, despite the school holding her back a year, and therefore due to move to secondary school in September 2020. The Council included three secondary schools for consideration within the EHC Plan for Y who could offer specialist provision. Mrs X decided to keep Y in year 5 so there was no need for the Council to consult with schools for Y.
31. The Council says it expected Y’s school to provide it with an annual review report between February 2020 and July 2020 since Y was in year 5. The Council says it asks schools to complete the annual review in the summer term for year 5 pupils because of the transition to secondary school the following year. Y’s school did not complete an annual review of Y in the summer term.

Events from August 2020

32. On 25 August 2020, the Council wrote to Y’s school to ask it to complete an annual review of Y’s EHC Plan. The Council asked the school to provide it with the relevant paperwork by the end of September 2020.
33. The school did not complete an annual review of Y’s EHC Plan or provide information to the Council.
34. The Council issued an amendment notice to Mrs X and the school for Y’s EHC Plan on 8 December 2020.
35. Y’s primary school provided the Council with advice and information in response to the amendment notice on 9 December 2020. Mrs X also provided the Council with copies of an up-to-date Educational Psychologist report and Speech and Language Therapist (SaLT) report on 19 December 2020.
36. The Council consulted with a designated mainstream secondary school, School 1, as a potential placement for Y. School 1 advised it was not suitable for Y’s needs.
37. The Council consulted with a private independent school, School 2, on 22 December 2020. The Council consulted with this school as Mrs X’s preference.
38. Y’s primary school held an annual review for Y’s EHC Plan on 8 February 2021. Mrs X and the school raised concerns that Y was due to start secondary school in September 2021 but had not got a suitable school placement.
39. The Council produced Y’s EHC Plan on 15 February 2021. The EHC Plan did not consider the reports provided by Mrs X in December 2020 or the annual review completed on 8 February 2021.
40. Mrs X complained to the Council on 1 March 2021. Mrs X said:
• The Council failed to follow the statutory process for completing an annual review in anticipation of Y’s transfer to secondary school and failed to complete an annual review within 12 months of the last review.
• The Council told her it could not complete an annual review when she contacted it in the Autumn term of 2020. Mrs X said the Council said she would need to wait until February 2021.
• The Council failed to consider the new reports she provided in December 2020 and EHC Plan only contained information from 2019. The EHC Plan produced by the Council in February 2021 was the same as the December 2020 draft and contained no revisions from the new information provided.
41. School 2 failed to provide a formal response to the Council about a place for Y. Mrs X told the Council about her new preferred school, School 3. The Council consulted with School 3 on 1 March 2021.
42. On 15 March 2021, the Council told Mrs X it would amend Y’s EHC Plan considering the reports provided in December 2020 and the annual review conducted on 8 February 2021.
43. The Council produced an amendment notice to Y’s EHC Plan on 22 March 2021. This amendment notice included consideration of the 8 February 2021 annual review but failed to consider the reports provided in December 2020.
44. The Council sent Mrs X its Stage 1 complaint response on 23 March 2021. The Council said:
• It apologised for failing to consider the new reports Mrs X provided in December 2020.
• The annual review on 8 February 2021 coincided with the end of the statutory amendment process on 15 February 2021 so the Council did not have opportunity to take account of the review.
• It was considering changes to the EHC Plan and would be issuing a new amendment notice shortly after consideration of the new information.
• It apologised for that it had not yet secured a specialist school placement for Y for her transition to secondary school in September 2021.
45. Mrs X disputed the Council’s Stage 1 response on 25 March 2021. Mrs X said:
• Y’s school asked the Council for an annual review in the Autumn 2020 term but this did not take place. Mrs X asked why the Council denied the opportunity for an earlier annual review.
• The Council was still using out-of-date reports in the March 2021 amendment notice.
46. The Council provided its Stage 2 complaint response on 15 April 2021. The Council said:
• It could not find any record of denying Y an annual review earlier. The Council apologised if this did happen.
• It asks schools to complete Year 5 pupils’ annual reviews in the Summer term so it can prepare and amend EHC Plans before Christmas. This enabled the Council to produce a final EHC Plan by the 15 February 2021 deadline. The Council said Y’s school did not provide Y’s annual review when requested.
• It used the latest annual review it had available, from 14 October 2019, in Y’s December 2020 amendment notice.
• It would produce a further amendment notice for Y’s EHC Plan by the end of April 2021 which would include consideration of the 8 February 2021 annual review and the reports provided in December 2020.
• It was now consulting with two schools about a placement for Y and was considering two further schools.
47. The Council sent Mrs X a further amendment notice on 29 April 2021. This amendment notice included consideration of the up-to-date reports and the annual review from 8 February 2021. This amendment notice did not include a named school placement for Y.
48. The Council consulted with School 4 for placement for Y on 1 May 2021 because School 3 had not provided the Council with a definitive answer.
49. Mrs X met with the Council on 12 May 2021 to discuss the 29 April 2021 amendment notice. Mrs X and the Council agreed some revisions to the EHC Plan but could not agree to all the revisions Mrs X wanted.
50. The Council produced a further amendment notice on 25 May 2021 incorporating the agreed on changes from the 12 May 2021 meeting with Mrs X.
51. Mrs X appealed the 25 May 2021 amendment notice to the SEND Tribunal on 11 June 2021.
52. On 24 June 2021, School 3 accepted Y for a place starting in September 2021. The Council confirmed this school placement with Mrs X.
53. The Council produced a final EHC Plan for Y on 6 July 2021. This EHC Plan included School 3 as Y’s school placement from 1 September 2021.
54. Mrs X withdrew her appeal to the SEND Tribunal on 19 July 2021.

Analysis

Request for an interim annual review

55. Mrs X complained the Council rejected her request for an interim review of her daughter’s, Y’s, Education Health and Care Plan in Autumn 2020.
56. Neither Mrs X nor Y’s school asked for an interim review of Y’s EHC Plan in Autumn 2020.
57. However, the Council asked Y’s school to complete an annual review of Y and to provide information by the end of September 2020.
58. The Ombudsman cannot investigate complaints about happens in schools. I cannot explain why the school did not complete an annual review even though both Mrs X and the Council asked for this.
59. The Council said in its Stage 2 complaint response it had no record of anyone contacting it in Autumn 2020 to request an interim review of Y’s EHC Plan. However, the Council apologised in its Stage 2 complaint response if it did provide incorrect information even though it had no record of this.
60. I do not find fault with the actions of the Council’s in not arranging an interim review.

Delays in arranging annual review

61. A council should ensure an annual review of a child’s EHC Plan is carried out within 12 months of the previous annual review. While a school would usually coordinate an annual review, the Council is ultimately responsible for ensuring reviews are held.
62. The school completed an annual review for Y in October 2019. The school should have completed the next annual review before October 2020. The school did not complete the next annual review until 8 February 2021.
63. The Council was not at fault for Mrs X’s complaint about the interim review. But, the Council was at fault for failing to ensure the school carried out an annual review within 12 months of the previous.
64. It was the Council’s responsibility to ensure the annual review took place before October 2020. The Council was at fault that this did not happen. While the Council did contact the school to query Y’s annual review in August 2020, this does not mitigate the Council’s fault.
65. The Council’s fault in failing to ensure the school completed an annual review before October 2020 meant that Y’s annual review was delayed by four months. Because of this delay this meant the Council did not consider a suitably up-to-date annual review when it produced the December 2020 amendment notice or EHC Plan on 8 February 2021. This is fault.

EHC Plan review process

66. Mrs X complained the Council did not include information from the new reports she provided to the Council in response to the amendment notice within the EHC Plan produced on 15 February 2021.
67. The Council sent Mrs X the first amendment notice on 8 December 2020. The Council had eight weeks from the date of the amendment notice to produce Y’s EHC Plan. This gave the Council until 2 February 2021. The Council did not produce Y’s EHC Plan until 15 February 2021. While the Council produced the EHC Plan by the statutory deadline it was outside the 8-week timescale, this is fault.
68. When the Council produced the EHC Plan on 15 February 2021 it failed to consider the up-to-date reports Mrs X provided in December 2020. The Council also did not consider Y’s annual review completed on 8 February 2021. Failure to consider relevant and up-to-date information when producing an EHC Plan is fault.
69. Mrs X could appeal the EHC Plan to the SEND Tribunal about the content in the EHC Plan and the failure of the Council to name a school. The Ombudsman would not investigate this or make a comment on fault about the contents of the plan given Mrs X’s appeal rights.
70. Following the annual review on 8 February 2021, the Council had four weeks to issue a decision notice. This allowed the Council up to 8 March 2021. The Council only issued the decision notice on 15 March 2021. This is fault.
71. The Council then issued an amendment notice on 29 April 2021 which Mrs X provided comment on. The Council arranged a meeting with Mrs X within the 15 calendar days allowed. The Council also made further amendments following the discussion with Mrs X considering her concerns. This resulted in the final amendment notice on 25 May 2021. I do not find fault with how the Council handled Mrs X concerns.
72. The Council produced the final EHC Plan on 6 July 2021. The Council had eight weeks from 25 May 2021 to produce the Final EHC Plan which would be up to 20 July 2021. The Council met this timescale and I do not find fault.
73. The delays in arranging the annual review, and fault in the Council’s completion of the EHC Plan review process by not considering the correct information, caused an overall delay of four months in the Council completing an agreeable EHC Plan for Y. While the EHC Plan is now agreeable with Y and Mrs X this caused four months of frustration and distress for both Y and Mrs X.

Complaint handling

74. Mrs X complained the Council failed to address her concerns within its complaint response.
75. Mrs X raised her Stage 1 complaint with the Council on 1 March 2021. Mrs X raised concerns about the Council failing to complete an annual review in preparation for Y’s EHC Plan or within 12 months of the previous annual review. Mrs X also complained about the Council failing to consider the relevant information within the EHC Plan and the Council refusing the request for an interim review.
76. The Council apologised for failing to consider the reports Mrs X provided and advised it did not consider the annual review because of its timing with the EHC Plan deadline.
77. However, the Council failed to address Mrs X’s concerns about the failure to complete the annual review sooner and refusal to complete an interim review. This is fault.
78. Mrs X reiterated her concerns about the delay to the annual review and refusal of the interim review within her Stage 2 complaint.
79. The Council addressed both of these issues within its Stage 2 complaint response. The Council advised it had no record of a request for an interim review but apologised if this happened. The Council also explained it had been in contact with the school about the annual review but the school had failed to complete this. While I found fault with the Council in failing to ensure the school completed the annual review, I consider the Council addressed Mrs X’s outstanding concerns in the Stage 2 complaint response. I consider this resolved the fault from the Stage 1 complaint response. Overall, I do not find the Council at fault for how it handled Mrs X’s complaint.

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Agreed action

80. Within one months of the Ombudsman’s final decision the Council should:
• Pay Mrs X £250 and apologise for the delays in ensuring completion of Y’s EHC Plan annual review and failure to keep to the EHC Plan timescales. And for the Council’s failure to consider relevant reports and Y’s annual review when producing the EHC Plan. This caused Mrs X and Y distress, inconvenience and frustration through the Council producing an agreeable EHC Plan four months late.

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Final decision

81. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

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Parts of the complaint that I did not investigate

82. I did not investigate Mrs X’s complaint about the Council failing to name a school in Y’s EHC Plan or any dispute over the contents of the EHC Plan.
83. This is because the Ombudsman cannot make changes to a person’s EHC Plan or question the Council’s decisions about a person’s educational needs. Only the SEND Tribunal can make such decisions.
84. Mrs X exercised her right to appeal to the SEND Tribunal in June 2021 but later withdrew this appeal in July 2021. Mrs X was aware of her rights to appeal to the Tribunal.
85. If Mrs X continued to dispute any provisions in the EHC Plan it would be reasonable to consider Mrs X would have continued with this appeal.

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Investigator's decision on behalf of the Ombudsman