Summary: Mrs X complained about how the Council dealt with her child’s, Y, Education, Health and Care Plan annual review. There were faults by the Council in how it dealt with Y’s annual review process. This caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about how the Council dealt with her child’s, Y, Education, Health and Care Plan (EHCP) annual review. In particular, the Council’s:

• delays in responding and issuing its outcome letter to the Education Psychologist re-assessment request Mrs X submitted to it in March 2022
• delays with completing Y’s 2022 EHCP annual review process
• failure to issue Y’s 2022 final EHCP.

2. Mrs X said the Council’s failings significantly affected her and Y’s health. She said Y was denied access to appropriate support and provision to meet his needs. Mrs X also said the matter caused her significant distress, frustration, financial loss and that she was denied her right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.

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What I have and have not investigated

3. I have investigated whether the Council met its statutory responsibilities in conducting Y’s 2022 Education Health and Care Plan (EHCP) annual review and issuing his final EHCP. This investigation covers the period, March 2022 to December 2022.
4. I have not investigated matters about Y’s EHCP annual reviews from 2018 to 2021. This is because these are historical issues and the greater the passage of time, the less likely it is to reach evidence-based decisions. Also, Y’s needs would have potentially changed over those years which would make it difficult to reach any definitive view on any potential injustice caused.
5. I have not investigated Mrs X’s concerns about the Council’s alleged failure to properly consider and complete Y’s 2023 EHCP annual review process. While I recognise this is part of an ongoing issue, these are new and separate complaints, and I cannot include the matter in the scope of this investigation. The 2023 matter is currently being investigated by the Council via its complaints process.
6. I have not investigated the actions of the school. School matters are not within our jurisdiction.

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The Ombudsman’s role and powers

7. 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)
8. We 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. (Local Government Act 1974, sections 26B and 34D, as amended)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
11. 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.
12. 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)
13. 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

14. I have discussed the complaint with Mrs X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
15. I have sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Education, Health and Care Plans

16. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. The Ombudsman cannot investigate or make changes to the sections about special educational provision. Only the SEND Tribunal can do this.

Annual Reviews

17. Councils should ensure an annual review of the child’s EHCP is carried out within 12 months of the issue of the original plan or the 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 appropriate. The annual review is not complete until the council has decided to either maintain, amend or cease to maintain the EHCP.
18. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
19. 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
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 EHCP as soon as practicable and within 8 weeks of the date it sent the EHCP and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
22. Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
23. Where a parent or young person disagrees with the contents of the EHCP there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
24. Parents do not have a right of appeal until a final EHCP (or decision not to issue a Plan) is made and a decision letter issued by the Council.

EHCP Re-assessments

25. Councils must conduct a re-assessment of a child or young person’s EHCP if a request is made by the child’s parent. A Council can refuse a request for a re‑assessment (from the child’s parent, young person or educational institution attended) if less than six months have passed since the last EHC needs assessment was conducted. 
26. The Council must notify the child’s parent or the young person of its decision whether to undertake a re-assessment within 15 calendar days of receiving the request to re-assess.

What happened

27. Due to the considerable amount of correspondence in this case, this chronology includes key events in this case and does not cover everything that happened.
28. Y has some health conditions. He has an Education, Health and Care Plan (EHCP).
29. In March 2022, Mrs X asked the Council to re-assess Y’s needs due to a recent additional diagnosis of anxiety which had increased his stress levels and worsened his mental health and wellbeing. Mrs X said Y’s needs were not properly supported and met by his EHCP at the time, in particular GCSE preparation support, exam dispensations and post-16 college transition planning. She said Y’s Occupational Therapy (OT) report was out of date. Mrs X requested an educational psychologist (EP) re‑assessment to review Y’s current needs and support.
30. On 21 April 2022, Y’s EHC annual review was completed. Y’s school submitted his academic progress report about existing provisions it provided to Y and its proposed planned provisions to better meet his needs. Mrs X questioned the progress report and said no documents were sent to her prior to the review meeting. In support of Y’s EHCP annual review, Mrs X submitted letters from Y’s GP and another medical expert to the Council.
31. In early May 2022, the Council informed Mrs X it would amend Y’s EHCP.
32. On 17 May 2022, the panel considered Mrs X’s EP re-assessment request. On 31 May 2022, the Council sent Mrs X its refusal response letter to her request for an EP reassessment for Y. The letter also confirmed it was in the process of amending Y’s EHCP and advised Mrs X of her appeal right to the SEND Tribunal. Mrs X says she did not receive the Council’s refusal letter.
33. On 18 July 2022, Mrs X made an initial formal complaint to the Council and then made a further complaint in August 2022. Mrs X complained about the Council’s delay in responding to the re-assessment request she submitted to it in March 2022. She also complained about its delay in dealing with Y’s EHCP review process since April 2022 and its failure to issue his final Plan. Mrs X asked the Council to re-assess Y needs via an EP assessment, get an up-to-date OT report and his recent learning assessments, so appropriate provisions could be put in place to meet any identified needs. Mrs X said she had to arrange private tuition for Y and that the Council’s failings continued to affect her and Y.
34. On 25 August 2022, the Council issued Y’s draft amended EHCP. Mrs X disagreed with the draft plan, she said the plan was not fit for purpose and would not meet Y’s needs. Mrs X made her representation and questioned why the Council failed to carry out an EP re‑assessment for Y as she requested.
35. The Council apologised if Mrs X did not receive its initial correspondence. The Council resent its letter dated 31 May 2022 refusing Mrs X’s EP re‑assessment request at the end of August 2022.
36. In September 2022, Mrs X submitted another complaint about her initial concerns and chased the Council for its response to her formal complaint to it.
37. On 5 October 2022, the Council issued Y’s revised draft EHCP after it considered Mrs X’s comments. The Council said it was unable to agree to all the amendments suggested by Mrs X without further evidence provided to support her views. The Council invited Mrs X to provide it with any additional comments and offered to meet and discuss Y’s plan with her. Mrs X did not agree with Y’s revised amended draft for the same reasons as the initial draft plan the Council issued in August 2022.
38. On 6 October 2022, the Council issued its response to Mrs X’s complaint. The Council confirmed it received Mrs X’s comments to the draft amended plan. It said it was liaising with Y’s school and that it would issue a further version of Y’s EHCP soon. The Council apologised for its delay with Y’s EHCP review. In response to Mrs X’s re‑assessment request, the Council said its 31 May 2022 letter explained its decision not to carry out a further EP re-assessment for Y. It said the letter also advised Mrs X of her appeal right to the SEND Tribunal.
39. Mrs X remained dissatisfied with the Council’s response and its failure to issue Y’s final EHCP. She made a complaint to the Ombudsman.
40. In response to my enquiries, the Council confirmed:

• Mrs X’s request for an EP re-assessment was not a statutory re-assessment request. The Council said on 17 May 2022, the panel considered and refused Mrs X’s request because it felt there was a good understanding of Y’s needs. Also, that Y’s EHCP could be amended from the 2022 annual review paperwork along with the new proposed provision the school put in place for Y
• it sent Mrs X its refusal letter on 31 May 2022. It said due to resource issues, there was a few weeks’ delay in sending Mrs X the letter after the decision was made on 17 May 2022. The Council said it resent the refusal letter to Mrs X on 30 August 2022 after she informed it she did not receive the initial letter in May 2022
• it had not yet issued Y’s 2022 final EHCP because it decided to further amend his plan following Y’s EHCP annual review in 2023. It said this decision was made to reflect Y’s move to post-16 education
• Y’s final EHCP should have been issued following the annual review in 2022 and that it apologises to Y’s family that was not the case. The Council said it advised Mrs X of her right of appeal to the SEND Tribunal in the annual review letter 31 May 2022
• lessons from Y’s EHCP casework management have been learnt and it will issue Y’s final EHCP as soon as possible.

Analysis

Delays with the Council responding to Mrs X’s request for a re-assessment in March 2022

41. Mrs X said she did not receive the Council’s initial refusal letter to her re‑assessment request in May 2022. From the evidence seen, the Council sent the letter via an email to Mrs X on 31 May 2022. This was not fault.
42. However, the Council was at fault for the delay in considering and issuing its decision letter about Mrs X’s request. When a parent requests a re‑assessment of a child’s needs, councils must notify the parent of its decision within 15 calendar days of receiving the request to re-assess. There was approximately a two-month delay before the Council issued its refusal letter. This was fault. It caused Mrs X distress, uncertainty and time and trouble.
43. The Council said it advised Mrs X of her appeal right to the SEND Tribunal if she was dissatisfied with its refusal decision to her EP request in its letter dated 31 May 2022. The Council’s letter confirmed it refused Mrs X’s EP reassessment request, but it went on to say the Council would arrange for Y’s Plan to be amended. The letter explained the right of appeal to the SEND Tribunal, but did not clearly explain that Mrs X could appeal the Council’s decision not to re-assess Y. This was fault. The Council could have considered issuing a letter explaining its decision about the re-assessment request separately from the letter explaining the EHCP process or specifically explained the refusal to re-assess carried its own appeal right. The letter’s lack of clarity caused confusion to Mrs X.
44. The Council said that Mrs X’s request was not a statutory re-assessment request. Mrs X asked for a re-assessment and the Council appeared to treat it as a statutory request as it notified Mrs X of her appeal rights. This would indicate the Council recognised it was a statutory request.

Y’s 2022 EHCP Annual Review Process and issuing Y’s 2022 final EHCP

45. When a council issues a decision to amend notification to a parent/carer (should be within four weeks) after an EHCP annual review meeting, it must also send the proposed amendments. Parents/carers must then be given 15 days to respond to the proposed amendments and the Council should issue the final plan within eight weeks of the amendment notice.
46. Y’s EHCP annual review meeting was held in April 2022, and so far, it has taken the Council 14 months to deal with Y’s 2022 EHCP review and issue his final plan. This is a significant delay and not in line with statutory guidance. This was fault.
47. The Council said it decided not to issue Y’s 2022 final EHCP because it wanted to further amend his plan after it completes Y’s 2023 EHCP annual review process to reflect Y’s move to post-16 education. The Council also said it advised Mrs X of her appeal right in its letter dated 31 May 2022. I am concerned the Council does not have proper understanding of the statutory code and guidelines. The Council had decided to amend the EHCP, so it must issue a final amended EHCP within the statutory timescales. The Council should also be aware a person does not have a right to appeal an amended EHCP until a final EHCP has been issued.
48. The purpose of conducting annual reviews is to consider whether the special educational support and educational placement is still appropriate. But Y was left without an up‑to‑date EHCP in 2022 due to the Council’s failings.
49. The Council should not have allowed the situation to drift for that length of time. The Council should have issued the final EHCP to engage Mrs X’s appeal rights. The Council’s failings have caused Mrs X significant distress, frustration, avoidable time and trouble and Mrs X was left without any right of appeal to the SEND Tribunal if she disagreed with the contents of the plan.
50. In the absence of a final amended EHCP, I cannot know what additional provision may have been agreed and included. Therefore, the Council will take action to pay the financial remedy as set out in the ‘agreed action’ section below to acknowledge the uncertainty caused. Once the Council issues Y’s final EHCP, Mrs X can exercise her right of appeal to the SEND Tribunal if she believes the provision detailed will not sufficiently make up for any provision she considers Y has lost.

Council’s Complaint Handling

51. According to its complaints procedure, the Council should respond to service users’ complaints within 10 working days.
52. Mrs X submitted her initial complaint to the Council on 18 July 2022. She chased the Council for its response on several occasions and she re-submitted her complaint to the Council in August and September 2022. The Council issued its response to Mrs X’s complaint on 6 October 2022. This was approximately a two‑month delay. This was fault and not in line with its complaints policy. This caused frustration to Mrs X and she was put to time and trouble pursuing responses to her complaints.

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Agreed action

53. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Y and Mrs X to acknowledge the distress, frustration, uncertainty and avoidable time and trouble caused by the Council’s delays and its failure to issue Y’s final EHCP. The apology should be in accordance with our new guidance, Making an effective apology
• pay Mrs X £1,000 in recognition of the uncertainty about what additional provision Y may have missed out on because of the Council’s failure to issue his 2022 final EHCP. This remedy covers 10 months (September 2022 to June 2023) at £100 per month. The Council should then make an ongoing payment of £100 per month from June 2023 until the Council issues Y’s final EHCP and engages Mrs X’s appeal rights
• pay Mrs X £300 to acknowledge the distress, worry, avoidable time and trouble caused chasing for updates about Y’s EHCP, complaining and denying her of her right of appeal to the SEND Tribunal
• review and ensure the Council’s decision letters about assessment / re‑assessment requests are clear. For instance, the decision letter should clearly set out and explain there is a separate right of appeal when requests for statutory re-assessments are made.

54. Within three months of the final decision:

• by training or other means remind staff of the importance of adhering to the statutory guidelines and timescales in completing EHCP annual review processes. Explain to the Ombudsman how the Council will monitor performance against timescales
• by training or other means remind staff of the importance of following the Council’s complaint procedure timescales.
• review and monitor the Council’s EHCP annual review process. Provide the Ombudsman with an action plan to demonstrate how the Council will meet statutory timescales for EHCP annual review process and issuing final EHCPs.

55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman