Summary: Ms X complained the Council delayed reviewing her son’s Education, Health and Care plan. The Council was at fault. This meant W missed out on some special educational provision and Ms X experienced frustration and went to avoidable time and trouble. The Council will pay Ms X £2200 to remedy the injustice she and W experienced.

The complaint

1. Ms X complained:
1. the Council delayed carrying out the 2021 annual review of her son, W’s, Education, Health and Care plan;
2. the Council also delayed completing W’s 2020 annual review; and
3. the Council has not carried out a reassessment of W’s needs after agreeing to do so.
2. Ms X said this caused her frustration, delayed her appeal rights and meant W went without Occupational Therapy and Speech and Language Therapy.

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What I have and have not investigated

3. I have investigated point (a) of Ms X’s complaint. I have not investigated point (b) because the Ombudsman 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. Ms X could have complained to the Ombudsman about the 2020 annual review at the time.
4. I have not investigated point (c) because 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. Ms X has not complained to the Council about the delay in carrying out the reassessment and it is reasonable for her to do so.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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.
8. 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

9. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
10. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

EHC plans

11. 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

12. 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.
13. 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”.
14. 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.
15. 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.
16. 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.

What happened

17. Ms X’s son, W has had an EHC plan for several years and attends a mainstream school (the School). The Council issued an EHC plan in early 2020 which included support from staff to help W cope in a school environment, interact with peers appropriately and develop body awareness and core skills.
18. Subsequently, Ms X obtained a private SALT report which recommended provision be added to W’s EHC plan.
19. The School held an early annual review meeting in May 2021, on behalf of the Council. This review recommended significant changes to the special educational provision of the plan, including the addition of OT and SALT support. The School sent the Council the meeting records in late June 2021.
20. From August 2021 to February 2022 Ms X sent the Council several emails complaining about the delay in carrying out the annual review and a lack of response. Records from early February 2022 show the Council identified it could not locate the May 2021 annual review meeting records. It contacted the School for the documents and chased it again in March.
21. In June 2022, Ms X complained to the Council about the delay in the annual review process.
22. Three days later, the Council sent Ms X a letter setting out its decision to amend W’s EHC plan and a draft plan setting out its proposed amendments. The amendments did not include any SALT or OT provision.
23. The Council responded to Ms X’s complaint apologising for the delay in sending its decision to amend the plan.
24. Ms X escalated her complaint in late June and added that she wanted to know why the Council had not included SALT and OT support.
25. An advocate working for Ms X also wrote to the Council and asked it to delay finalising the amended EHC plan. They said the School was about to hold W’s 2022 annual review and asked the Council to instead consider any amendments suggested in that meeting alongside those suggested in the 2021 meeting and to create a new draft amended EHC plan based on the outcomes of both reviews.
26. The Council says Ms X later asked it to finalise the June 2022 draft amended plan instead. It did so in late July. The plan included some new provision, which I have summarised below:
• Support from adults at playtime to help W play with peers.
• Weekly help to teach W about social scenarios.
• A programme to speed up W’s writing and ensure it was neat.
• Completion of a programme to increase W’s body awareness.
• Support to help W dress independently.
• An adult to help W be in the community safely.
27. In its further complaint response, the Council:
• acknowledged there had been a delay in notifying Ms X of its decision to amend W’s EHC plan after the May 2021 annual review meeting;
• said a previous SEND Tribunal hearing had decided W did not need SALT and OT support so it did not agree with the annual review recommendations; and
• explained it was seeking further advice on W’s needs and on the provision suggested in the reports Ms X commissioned.
28. Ms X has now decided to appeal to the SEND Tribunal in order to obtain the SALT and OT provision she feels W needs. Ms X confirmed to me that W received the provision set out in the 2020 EHC plan during the period she complained about.
29. The Council told me it had a backlog of SEN cases, which caused the delay in carrying out W’s EHC plan and contributed to the delay in issuing the final EHC plan. It said an Ofsted review of its special educational needs service had identified concerns. It had produced a ‘written statement of action’ with Ofsted which set out the steps it would take to improve its service. This included restructuring its SEN department to maximise its ability to cope with the increase demand on its services. It said data was already showing improvements.

Findings

30. The Council took over a year after the May 2021 annual review to send Ms X its decision to amend W’s EHC plan. The law is clear the Council must send that letter within four weeks. The Council says some of the delay was due to the School not responding to its request to resend the annual review documents. However, I note the Council did not ask the School for the information until early 2022 when it had received them originally in late June 2021. The significant delay was fault.
31. After sending Ms X its decision to amend W’s EHC plan and the draft amended plan in June 2022 the Council issued the final amended plan by July; within the eight-week timescale required. It was not at fault for that period. However, the Council's delay in sending its decision to amend seriously delayed Ms X’s right to appeal to the SEND Tribunal to seek the OT and SALT provision she wants. This caused Ms X frustration and the delay also meant she went to some time and trouble contacting the Council.
32. On balance, had the Council acted without fault, it would have issued the amended final EHC plan by September 2021. The delay meant W did not receive the additional provision in their plan for around ten months. Ms X has, however, confirmed W continued to receive the provision in the 2020 EHC plan so W was not without SEN support entirely. I have recommended a payment to remedy the injustice to W in paragraph 35. Taking into account the provision W lost and their age, I have recommended £2000 (£200 per month), in line with the Ombudsman's Guidance on Remedies.
33. I am satisfied the Council is taking appropriate steps to improve its SEN services. This is being monitored by Ofsted, who can act if the Council does not improve sufficiently. I have therefore not made recommendations to prevent the fault occurring again.
34. Ms X is unhappy the Council has not added OT and SALT support to W’s EHC plan. However, only the SEND Tribunal can direct the Council to make changes to W’s EHC plan and Ms X has said she will appeal to it. Without the outcome of the appeal, I cannot say whether, but for the delay, W would have received OT and SALT provision earlier.

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Agreed action

35. Within one month of the date of my final decision, the Council will:
• pay Ms X £200 in recognition of the frustration she experienced and the time and trouble she went to as a result of the Council's fault; and
• pay Ms X £2000 for the benefit of w, in recognition of the loss of SEN provision.

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Final decision

36. I have completed my investigation. I have found fault leading to personal injustice.

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Investigator's decision on behalf of the Ombudsman