Summary: There was delay by the Council in making amendments to an Education, Health and Care Plan after annual reviews. However, this has not caused a significant injustice. The child remained in the same placement and appeal rights while delayed, were not used.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about delays following annual review meetings between 2018 and 2020 and that this resulted in her not having a right of appeal before Autumn 2020.
2. Ms X says this caused her distress and resulted in her son missing out on provision.
3. Ms X’s initial complaint in 2019 related to the handling of the 2018 and 2019 review meetings. Ms X says the Council issued amended plans only shortly before the next review was due, so she lost the opportunity to appeal.
4. In February 2020, when Ms X complained to the Ombudsman, she expanded her complaint to include concerns the Council had removed provision from a final EHC plan it issued in December 2019 and that the Council had not named a secondary school by the 15 February 2020 key phase transfer deadline. The Council responded to these new issues in March 2020. As Ms X then appealed to the Tribunal, we deferred investigating her complaint until the appeal was completed.
5. In July 2021 Ms X returned to the Ombudsman. Ms X wanted the Ombudsman to investigate new issues about how the Council responded to her request for a change of school. Ms X told the Ombudsman that she could not identify a suitable secondary school because she did not have a clear picture of her son’s needs. She said assessments to inform the decision about a secondary school were only arranged after a meeting with the school in July 2020. Ms X says but for this delay her son could have started at his new school in September 2020 instead of June 2021.

Back to top

The Ombudsman’s role and powers

6. 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)
7. 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)
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
10. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
11. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
12. 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)

Back to top

What I have investigated

13. I have investigated the complaints set out in paragraphs one to four above. I have not investigated the new complaint issues set out in paragraph five. These were not part of Ms X’s original complaint to the Council and were raised after the Council provided its final complaint response. The Council has not had an opportunity to consider them through its own complaints process. (Local Government Act 1974, section 26(5), section 34(B)6) Some of the issues, such as the suitability of two competing schools, were raised and resolved via the appeal. The Ombudsman cannot consider issues where an alternative remedy to the Tribunal has been used. (Local Government Act 1974, section 26(6)(a), as amended)
14. The scope of this investigation is limited to the Council’s handling of the annual reviews of May 2018, June 2019 and January 2020. I have also considered whether appeal rights were provided after each review, which has included looking at events up to June 2020, when the January 2020 review was completed.

Back to top

How I considered this complaint

15. I considered:
• Ms X complaint and the information she provided.
• Complaint correspondence and EHC documents supplied by the Council.
• Relevant legislation and guidance including:
1. The Children and Families Act 2014, Special Educational Needs and Disability (SEND) Regulations and Code of Practice.
2. The Coronavirus Act and guidance.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What happened

17. Ms X’s son has Special Educational Needs (SEN) which the Council determined needed to be met via provision in an EHC Plan.
18. On 10 May 2018, an annual review meeting for Ms X’s son’s EHC Plan was held. The report of the meeting said amendments to the plan were needed to update information about a new diagnosis and amend outcomes. The Council decided to amend the plan but did not issue the final plan until 2 May 2019. Ms X obtained a right of appeal in May 2019 but did not use it.
19. Ms X told the Ombudsman she was unhappy with the contents of the plan but was unable to appeal because the next annual review meeting was due to be held in only six weeks.
20. On 17 June 2019, the next annual review meeting was held. The report to the Council recommended minor amendments but stated Ms X was happy with the overall provision being made. The Council’s decision was to amend, and a final plan was issued on 13 December 2019.
21. Ms X says speech therapy provision had been removed from the plan in May 2019 and other deletions made. Ms X says this was because health services could no longer provide therapy, not because her son no longer needed it.
22. In January 2020, at the next review meeting, Ms X requested a change of school. Ms X says the school had not received a copy of the new plan and no social worker was invited to the meeting. A new school was opening linked to the current school. Ms X said the new school did not yet have a name, but she asked for her son to attend. Ms X says her son was due to transfer to secondary school so any new school should have been named by the statutory transfer deadline of 15 February.
23. The Council issued an amendment notice on 29 January. A final plan was issued on 10 June 2020. This period coincided with COVID-19. The Council wrote to Ms X in April 2020 explaining disruption to its service would affect completion of the actions from the annual review.
24. Ms X says the June 2020 document was sent to her son’s father’s address, but the document provided to us from the Council shows it was sent to Ms X. Ms X also provided a copy of the decision letter to the Tribunal with her grounds of appeal in Autumn 2020. The Council issued a further final plan in July 2020 with amendments she requested.
25. The Council’s records show final versions were created on 4 June and 15 July.
26. Ms X appealed to the SEND Tribunal in September 2020. Ms X was dissatisfied with the contents of the plan and says none of the amendments she asked for had been implemented.

Complaint handling

27. Ms X complained to the Council in October 2019 about delay in the 2018 and 2019 annual reviews and that no social care advice was submitted.
28. The Council responded on 5 November 2019 acknowledging there had been delay in amending plans after the 2018 and 2019 review meetings and social care advice was not provided. As Ms X’s son had remained in the same placement the Council did not consider the delay had caused significant injustice.
29. Ms X complained to the Ombudsman in February 2020. Ms X said she should not have to make complaints to receive final plans. Ms X said speech therapy was removed from the plan and she was concerned she wouldn’t be able to appeal to get it put back into the plan before the next review happened.
30. The Council provided a complaint response to the new issues raised in March 2020 which said:
• Ms X’s son was not at a key transfer phase such as primary to secondary although a new school had been requested
• In November 2019 the current school was found to be meeting needs
• It would issue an amendment notice shortly following the January 2020 review.
31. The Council told the Ombudsman in July 2020 it had now issued a final plan and while one to one speech therapy had been removed strategies were still in place. It said there was one outstanding action which related to Ms X’s request for a change of school. This school replied in Summer 2020 that it could not meet need, the Council then named the secondary site of Ms X’s son’s current school and he started there in September 2020.
32. Ms X had not appealed the final plan at that time but did appeal in September 2020. We deferred our investigation due to the appeal to Tribunal.
33. Ms X brought her complaint back to the Ombudsman after the Tribunal was completed. Ms X said that when her preferred school said it could not meet need, further assessments were done to ascertain her son’s ability. As a result, it was demonstrated that her preference of school was suitable and her son moved there in June 2021.

Relevant law and guidance

34. A child with special educational needs may have an Education, Health and Care (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, or name a different school. Only the tribunal can do this.
35. EHC plans must be reviewed at least every twelve months. The annual review process requires information to be gathered from the family, professionals and the education setting. A meeting must be held and a report produced for the Council. On receipt of the report the Council must make one of three decisions:
• To amend the plan
• To keep the plan the same
• To cease the plan.
36. The Council must inform the family of its decision in writing. Where the decision is to amend the statutory guidance says the process of amendment should start without delay.
37. All three types of decision carry a right of appeal to the SEND Tribunal. With a decision not to amend, or cease, the appeal right arises on receipt of the decision letter. Where the decision is to amend, the right of appeal arises when the amended final plan is issued.
38. On 20 March 2020 all schools closed due to COVID-19. On 23 March the government introduced measures requiring people to work from home except in very limited circumstances. On 25 March 2020 the Coronavirus Act was enacted. On 1 May 2020 the Government issued a notice under this Act which amended the SEND Regulations removing specific timescales for actions in relation to EHC plans and replacing them with a requirement to take actions as soon as ‘reasonably practicable’. This change ended on 25 September 2020.

Analysis

39. Plans should be amended without delay. In 2018 the Council took twelve months to amend the Plan and in 2019 it took six months. This delay was fault. The Council has acknowledged its delay via the local complaint process and says it has taken steps, including extra staffing, to address this.
40. The records available from the annual review meetings do not indicate Ms X was dissatisfied with the EHC plans or the provision in 2018 or 2019. However, if she did disagree, she had a right of appeal in May 2019 and December 2019 which we would expect her to use.
41. I note Ms X appeared to believe she could not use her appeal right as the plans were issued just before the next review was due. This was incorrect. An annual review meeting does not prevent an appeal being brought. Ms X’s incorrect assumption was not fault by the Council.
42. Specialist speech therapy input was removed from the Plan in May 2019. As stated above Ms X had a right of appeal which we would have expected her to use if she did not agree. The Ombudsman cannot decide what provision a child required, only the Council or Tribunal can decide this.
43. The Council received the annual review documents from the school on 17 January 2020 and noted Ms X had requested a new school. The Council’s view in its complaint response in March 2020 was that it had not missed the secondary transfer deadline because Ms X’s son did not need to move schools, as he was attending a through age special school which met his needs. I have checked the school website and can see that it is a collection of settings, some on split sites with some satellite units in mainstream schools. Ms X’s son moved from the primary special school site to the secondary site. I have not seen evidence this move did require a new school to be named on the EHC plan. The final EHC plans of December 2019, June 2020 and July 2020 all name the same school.
44. Ms X was entitled to express a preference for a different school, but the Council did not receive this request until 17 January. Ms X has raised concerns this school was not named until after an appeal and new assessments were done. Any delay in naming this school between February 2020 and June 2021 is not within the scope of this investigation for the reasons stated above.
45. I have considered if there was a delay in appeal rights after the January 2020 review. The Council received the annual review documents in mid-January 2020 but did not issue a final plan until June 2020. However, the usual timescales were disapplied between March and September 2020 due to COVID-19. I also note Ms X did not use the rights of appeal she obtained in June or July 2020.
46. Ms X brought an appeal in September 2020, which was out of time, but allowed by the Tribunal. I have seen no evidence Ms X was unable to appeal the named school because the Council sent correspondence to the wrong address. The documents have the correct address on them. If Ms X did not receive the documents in June, this was not due to any fault by the Council.
47. The evidence points towards Ms X receiving a copy of the June 2020 plan as there is reference to her concerns amendments had been omitted and this was why a further version was issued in July. I cannot see why else the Council would have issued two plans in quick succession. Ms X attended a meeting at school in July 2020 and there is email evidence Ms X was sent a copy of the final plan by the school in July 2020. This all points to Ms X being aware that a final plan had been issued. I do not find that Ms X was denied a right of appeal until September 2020.
48. I find that while there was delay by the Council in completing the annual reviews, this did not cause injustice as the delayed appeal rights were not used. Ms X’s son remained at the same school and received education which the annual review records indicate Ms X was happy with. I acknowledge that recent assessments have cast new light on whether the school attended in 2018 to 2020 was suitable, but I cannot judge the Council with the benefit of hindsight, only on the evidence and circumstances known at the time.
49. The Council acknowledged social care advice was not sought but there is evidence social care was involved with the family and provision was in place throughout. There is no evidence that lack of social care input into annual review meetings affected the family’s entitlement to care.
50. The Council has apologised for the delays and taken steps to prevent a recurrence of the fault in future cases. I consider this is an appropriate response as no significant personal injustice arose.

Back to top

Final decision

51. I have completed my investigation. There was delay by the Council in amending plans after annual reviews which delayed appeal rights. I have not found this caused a significant injustice as when the appeal rights were provided, they were not used, and the child remained in the same placement.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman