Summary: Miss C complained that after 2020 the Council failed to update her son’s Education, Health and Care Plan following annual reviews. We find the Council at fault for this failure and for a delay in answering her complaint. We consider these faults caused Miss C distress and caused her unnecessary time and trouble. The Council accepts these findings. At the end of this statement, we set out the action it has agreed to take to remedy that injustice and improve its services.

The complaint

1. I have called the complainant ‘Miss C’. She complained that for several years the Council failed to update an Education, Health and Care Plan (EHCP) for her son ‘D’ who has special educational needs. She says this resulted in his EHCP being significantly out of date.
2. Miss C says as a result, relevant services did not re-assess D’s needs (such as Speech & Language therapy). So, he did not receive suitable targeted and specific provision. Miss C says this has contributed to him not meeting the stated outcomes in his EHCP. In addition, she has lost rights of appeal to ask for changes to his EHCP.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter complained about. (Local Government Act 1974, section 26(6), as amended)
5. 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

How I considered this complaint

6. Before issuing this decision statement I considered:

• Miss C’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Miss C and the Council about the matters covered by this complaint which pre-dated this investigation;
• information provided by the Council in reply to my written enquiries;
• any relevant law or guidance as referred to below.

7. I gave Miss C and the Council a chance to comment on a draft of this decision statement. I also invited them to provide any new evidence they considered relevant to the complaint. I took account of any response they provided before issuing this final decision.
8. We have an information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, I will send a copy of my final decision to Ofsted before its publication on our website.

Back to top

What I found

Relevant law and guidance

9. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements to meet them. The EHCP is in sections. These include:

• Section A – this sets out the views of the child and parents;
• Section B – this sets out the child’s strengths and special educational needs;
• Section C - describes the child’s health needs relative to their special educational needs;
• Section E - sets out the outcomes desired for the child; and
• Section F – details the education provision needed to meet those outcomes.

10. The law and Government guidance details the procedure for reviewing and amending EHCPs. An EHCP review should take place at least once every twelve months.
11. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. Where a council proposes to amend an EHCP, 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)

13. Recent caselaw has held that where a council proposes amending an EHCP following an annual review – it must send the proposed amendments within four weeks of the review. It is not enough simply to write to the parent to say it will amend the EHCP later. (see R (L, M & P) v Devon County Council [2022] EWHC 493 (Admin))
14. A council must give parents opportunity to comment on proposed amendments, allowing a minimum of 15 days for this. If, following comments from the child’s parent or the young person, the council decides to continue with amendments, it must issue the amended EHC plan as soon as practicable. This should always be within eight weeks “of the original amendment notice”. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the description of the child’s special educational needs or identified provision (sections B and F of the EHCP). They can only exercise the right of appeal after the council issues a final EHCP.

Chronology of events

16. D’s first received an EHCP in December 2018. Reviews of the EHCP took place at meetings held in January 2020, January 2021 and February 2022.
17. After the January 2020 annual review D’s school wrote to the Council telling it the outcome. It recommended the Council amend D’s EHCP. The review paperwork identified the EHCP needed updating to reflect that D’s likes and dislikes had changed (Section A); that his strengths and special education needs required updating (Section B); that he now had a diagnosis of autism (Section C) and that his outcomes required updating (Section E). There is no suggestion in the paperwork that Miss C had concerns about D’s education at the time nor how the school met his needs. She commented in the review paperwork that “everything is going as well as it can” and “nothing needs to improve” when referring to his education.
18. The Council took no action on receiving this information.
19. After the January 2021 annual review meeting D’s school wrote again to the Council. This review also recommended amending D’s EHCP. The paperwork does not say which parts of the EHCP the review meeting thought should be amended. But from the discussion around D’s needs I have assumed it to be Sections B and E; i.e., that D’s special education needs and desired outcomes needed updating. The papers accompanying the review show Miss C signalling general satisfaction with D’s education saying “nothing needs to change at the moment”
20. The Council took no action on receiving this information.
21. After the February 2022 annual review meeting, D’s school wrote again to the Council telling it the outcome. The School said that Section E of the EHCP needed updating to reflect the latest desired outcomes for D. The review bundle paperwork I saw did not contain an annotated EHCP showing the changes wanted. Nor, on this occasion, did they contain any comments from Miss C. However, from the commentary accompanying the review paperwork I find changes were also foreseen to sections B and F. This is because the paperwork identifies areas where D was experiencing challenges with his education and there is discussion around strategies to manage this.
22. The Council again took no action on receiving this information.
23. In June 2022 Miss C made a complaint. She complained the Council had failed to notify her of the outcome of D’s annual reviews. In particular whether it planned on amending the EHCP and issuing notice of any amendments within four weeks of the review meetings.
24. The Council has told us that until Summer 2022 it had a dedicated officer dealing with complaints about its special education needs service. But that this post became vacant around this time. The Council says it was slow to respond to complaints as a result.
25. It assigned Miss C’s complaint to a senior officer in its education service. Miss C exchanged emails with the Council while it was investigating her complaint. In these she said that she believed D had missed targeted and specific support for his additional needs because of the failings around annual reviews. Miss C said she wanted D to have updated medical, social and educational reports.
26. The Council replied to Miss C’s complaint in October 2022. It acknowledged its failure to update D’s EHCP following the annual review meetings. But it said that it understood his school had been working to its own updated copies of his EHCP. The response noted D was not receiving any support from external services (such as occupational therapy or speech and language therapy). So it did not think the annual review would have led to further professional assessments. The reply also referred to the Council now having assigned a named education officer to work with Miss C. It said they would meet with Miss C to discuss any assessments D may need. The response also implied she would receive a draft amended EHCP shortly.
27. Miss C went on to meet with the named officer in November. The meeting also included her advocate and a specialist health officer. In early December 2022 the Council sent a draft amended EHCP to Miss C and invited her comments. It proposed significant amendments to the 2018 document - updating Sections A, B, C, E and F. The amended EHCP also recorded the changes proposed to Section F needed more funding. The Council put D’s case in ‘Band 4’ of its funding scheme (the 2018 EHCP said the school would pay to meet D’s from its own budget).
28. The Council issued a final EHCP in January 2023.
29. Miss C understood after the meeting in November 2022 the Council had agreed to a series of further assessments for D. However, a later email exchange she had with the education officer recorded the Council’s view that D does not need any further assessments. It says the Council has a good understanding of D’s needs and that it believes his school is providing him with suitable education. However, I note the final EHCP issued in January 2023 says that D’s school should refer him to an Occupational Therapist for a one-off review.
30. In general comments, both in reply to Miss C’s complaint and in answer to our enquiries the Council has recognised significant failings in updating EHCPs after annual reviews. The Council says that it still faces challenges to meet statutory timescales, but that it has taken steps to improve its performance including:

• re-organising its special educational needs service so one part of the team focuses on annual reviews of EHCPs;
• recruiting two agency staff to help with annual review updating;
• improving its data gathering around annual reviews;
• undertaking more training for staff in this area;
• piloting a project that will allow schools to update an EHCP in real time, while an annual review meeting is in progress.

My findings

31. The Council has recognised fault in this case. First, it failed to act on receiving information from D’s school after annual review meetings held in January 2020 and 2021 and February 2022. The law is clear, that within four weeks of such meetings the Council should write to confirm whether it is maintaining the EHCP without changes; amending it or ceasing to maintain it.
32. Second, the Council was slow to respond to Ms C’s complaint in June 2022. It aims to respond to complaints within a month, but in this case took over three months to reply.
33. I have gone on to consider the consequences of these faults. I consider in each case where the Council failed to confirm its intentions following D’s annual review meetings this caused Miss C some injustice. This would be as distress, in the form of uncertainty, not knowing the Council’s position in response to recommended changes.
34. But with the 2020 and 2021 annual reviews, I consider this uncertainty limited. This is because the review paperwork suggests the impact of the Council’s failure was minimal. Any changes made to D’s EHCP then would have simply reflected what was already happening in terms of outcomes the school was working towards. Any changes to the EHCP not have gone significantly to the heart of the document. By this I mean its description of D’s additional needs and the detailed provision needed to meet those.
35. In addition, the evidence shows Miss C expressing satisfaction with the school’s education of D and the progress he was making. So, there is no suggestion she was pressing for any extra assessment of D’s needs at this time. This makes it less likely she would have considered appealing the content of an amended EHCP.
36. But in 2022 this picture changed. While the review paperwork could be clearer, there is a consistency between that and the amended EHCP issued in December 2022. The changes needed to the description of D’s additional needs and the detailed provision needed to meet these are greater. The changing budget to meet D’s needs reflects this also. So do Miss C’s actions in bringing her complaint and pursuing an up-to-date EHCP for D. Also, in her requests for more specialist assessments of his needs. While Miss C does not go so far as to suggest D needs a change of placement, she has clearly become concerned during 2022 that he needs more targeted and specific support.
37. The Council considers these matters will still not have directly impacted on D’s education, given its view that his school meets his needs well and that it has a good understanding of his needs. But I consider not having the recent changes made sooner to D’s EHCP could potentially have had a negative impact for D’s education. Because the document is a working tool to support D’s educators. I find the uncertainty greater therefore following the failure to amend D’s EHCP in response to 2022 annual review.
38. It is not my place to come to a view on whether D’s EHCP now adequately describes his needs and how they should be met. Nor whether he needs more specialist assessment. These are matters for expert consideration by bodies such as the SEND Tribunal. If Miss C is unhappy with the current scope of D’s provision, she can pursue that by an appeal to the SEND Tribunal. But appeal rights only take effect once the Council issues a final EHCP. Miss C had to wait around eight months longer than she should, to receive that. By which time, the next review cycle should have begun. She lost an earlier opportunity to appeal therefore that on this occasion may have been exercised. And that is a further injustice.
39. Finally, the Council also caused Miss C some unnecessary time and trouble because of the delay in answering her complaint.

Back to top

Agreed action

40. The Council accepts the findings set out above. It has agreed to take the following actions.

Personal remedy

41. First, the Council has agreed that within 20 working days of this decision, it will:
1. apologise to Miss C accepting the findings of this investigation;
2. pay Miss C £500; this symbolic payment comprises £150 for the uncertainty created by the failure to amend D’s EHCP following the 2020 and 2021 annual reviews; £250 for the greater uncertainty and loss of opportunity following the 2022 annual review and £100 for Miss C’s time and trouble.
42. With the Council having issued a final EHCP there is nothing further I can recommend around the administration of E’s case at this time. While I note the next annual review of D’s EHCP should now have completed, Miss C tells me it has not. I cannot investigate the reasons for this – but I would urge the Council to avoid any repeat of its previous failings in responding to annual review paperwork. I also note that a further annual review may lead to further discussion around the potential need for D to have further assessments by specialists and a further amended EHCP.

Service improvements

43. I note the comments made by the Council on the wider service improvements it is taking to try and avoid delays following annual reviews for children with EHCPs. I recognise the Council is aware of its duties in this area and has acknowledged its failings. This is welcome along with its efforts to address the underlying issues which have resulted in a poor service in this area.
44. In the light of the Council’s own actions, I consider the scope to which the Council can carry out further service improvements limited. But within three months of a decision on this complaint, it has agreed to:
1. ensure that its improved data collection will enable it to identify when it has failed to meet the statutory four-week target to confirm the action it is taking following an annual review and it will have a policy that explains what action the Council will take when the target is not met; i.e. how it will escalate such cases for further action and by whom etc;
2. introduce a policy (or amend any existing policy) to also record where it has failed to meet the time target for responding to complaints about its special education needs service. This will cover how the Council will keep in touch with complainants where it misses the target and how it will escalate such cases to managers to ensure it sends a reply.
45. The Council will provide us with evidence it has complied with these actions.

Back to top

Final decision

46. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Miss C. The Council accepts this finding and has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Back to top

Investigator's decision on behalf of the Ombudsman