Summary: Mrs X complains the Council failed to arrange an annual review of her son’s Education, Health and Care (EHC) plan. The evidence shows the Council delayed arranging the annual review by 20 weeks. This is fault. The Council has agreed to our recommendations to remedy the injustice caused by the faults.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council failed to complete an annual review of her son’s, Y, Education, Health and Care (EHC) plan.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. If we are satisfied with an organisation’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. 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

6. I considered Mrs X’s complaint and the information she provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mrs X and the Council were given an opportunity to comment on a draft of this decision. I did not receive any comments to consider before making this final decision.

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What I found

Relevant law and guidance

EHC plans

9. 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 SEND Tribunal can do this.

Annual reviews

10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. This is the annual review. Each annual review must take place within 12 months of the last.
11. 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. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”.
12. 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.
13. Caselaw from March 2022 clarified the timetable for annual reviews. The High Court decided that if a council intends to amend a child’s EHC plan, it must send the draft EHC plan (amendment notice) along with the notification it intends to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHC plan.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

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What happened

15. Y has special educational needs and has an EHC Plan. Y was attending a specialist school (School 2) named on his EHC Plan. In June 2021, Mrs X withdrew Y from the school due to an incident. School 2 subsequently closed in July 2021.
16. Mrs X appealed to the SEND Tribunal in August 2021 about the lack of placement. Mrs X also complained to the Council about the lack of support for Y and the lack of a placement.
17. An annual review of Y’s EHC Plan was due no later than 1 February 2022. The Council issued an amended EHC Plan with a finalised placement on 15 February 2022. It named School 3, a specialist school.
18. The annual review meeting was held on 20 June 2022.
19. On 20 July 2022, the Council wrote to Mrs X about its decision to amend Y’s EHC Plan. The letter also stated that the next annual review of Y’s EHC Plan was due by 20 July 2023.
20. A draft amended EHC Plan was sent to School 3 and Mrs X on 18 August 2022.

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Analysis

Annual review of Y’s EHC Plan in 2022

21. Councils should ensure an annual review of a child’s EHC Plan is carried out within 12 months of the last review. The Council should have held the annual review before 1 February 2022 but instead it was held on 20 June 2022. This delay of 20 weeks is fault.
22. The Council says it acknowledges the annual review did not take place when it should have. It went on to say that although the annual review had not been completed on time, it was pleased that Y’s provision was secured, and it apologised for the delay in arranging the review.
23. The Council says its focus was on ensuring Y had a ‘suitable onward placement that could meet his needs’. However, the purpose of the annual review is to consider whether the special educational support is still appropriate for the child’s needs. The Council failed to review Y’s needs therefore it could not be certain his needs would be met by the new placement.
24. Although the Council was working hard to find a new placement for Y, it should also have held an annual review of his EHC plan. This failure left Y without an up-to-date EHC plan. This is also fault. When the annual review was held, it was decided to amend Y’s EHC plan. I find the Council failed to effectively meet Y’s special educational needs for 16 weeks of term time between February 2022 and June 2022. The identified fault also caused Mrs X uncertainty about the SEN provision Y would be receiving, frustration, avoidable time and trouble chasing the Council.

Annual review of Y’s EHC Plan in 2023

25. Each annual review must take place within 12 months of the last. The last annual review of Y’s EHC plan was held on 20 June 2022 but the Council has written to Mrs X and advised her the next annual review is due to by 20 July 2023. This is fault and it has caused frustration and confusion for Mrs X.

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Agreed action

26. The Council has already apologised to Mrs X for its failure to arrange the annual review of Y’s EHC plan on time. I recommend an additional remedy based on the Ombudsman’s guidelines which the Council agreed to.
27. Within four weeks of this decision, the Council agreed to pay Mrs X:
• £250 to recognise the uncertainty and frustration caused by the delay in arranging the annual review and to recognise the time and trouble in pursuing her complaint;
• £800 (£200 for each month of term time between February and June) to recognise the 16 weeks the Council failed to effectively meet Y’s needs due to an out-of-date EHC plan. I have considered the provision Y was in receipt of during this time.
28. The Council has also agreed to revisit its decision regarding when Y’s EHC Plan is next due for annual review, ensures its decision is in accordance with the relevant law and statutory guidance and advises Mrs X accordingly. The Council agreed to do this within four weeks of this decision.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. There is fault by the Council and it caused injustice to Mrs X and Y. The Council has agreed to remedy the injustice caused. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman