Summary: Mrs D complained about the Council’s delays in completing an annual review of her son’s Education, Health and Care plan. We find the Council was at fault for its delays in completing the annual review. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained about the Council’s delays in completing an annual review of her son’s (F) Education, Health and Care (EHC) plan. She says F is missing out on provision and preparing for adulthood skills because of the Council’s failures.

Back to top

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. 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.
5. 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)

Back to top

How I considered this complaint

6. I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
7. Mrs D 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

Relevant law and statutory guidance

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
9. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
10. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
11. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
12. Paragraph 9.196 says that after receiving any representations from the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
13. 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.
14. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

What happened

15. Mrs D’s son, F, has special educational needs and an EHC plan. He receives a bespoke Education Otherwise Than at School (EOTAS) package.
16. The annual review of F’s EHC plan was due in February 2022. Mrs D emailed the Council on 5 March and said the annual review date had passed and she had heard nothing. She sent two chasers for a response.
17. The Council responded on 20 April and said it would schedule the annual review. It asked for Mrs D’s availability into May. Mrs D responded and provided her availability throughout May and June.
18. The annual review went ahead on 22 June. The Council emailed Mrs D on 15 July and sent the annual review report. It asked for her comments. It also said it would find out who would assess F for preparing for adulthood skills. Mrs D provided her comments on 19 July.
19. Mrs D chased the Council for a response on 21 September. She said it had failed to adhere to statutory timescales. She also asked about adding funding to F’s EOTAS package for him to access Design and Technology (DT) workshop lessons and educational software to help with his written work. The Council apologised for the delay and said it would send the decision letter by the end of the week. It said it would seek authorisation for the extra funding.
20. The Council wrote to Mrs D on 5 October and said it intended to amend F’s EHC plan. It sent her an email and said an educational psychologist’s assessment would clarify F’s needs regarding preparing for adulthood. It asked if she was happy for the assessment to go ahead.
21. Mrs D responded and agreed to the assessment. She also complained about its delays in the annual review process. She said eight months had passed without an update to F’s EHC plan. She said F was missing out on preparing for adulthood skills and training.
22. The Council responded to Mrs D’s complaint and said as it issued F’s EHC plan on 1 November 2021, the annual review was not due until 1 November 2022. It apologised for the delay in sending the annual review paperwork. It also said it aimed to issue F’s EHC plan for post-16 provision by 31 March 2023.
23. Mrs D responded and said as it issued F’s first EHC plan on 16 February 2021, the annual review date was 16 February 2022. She said her appeal to the SEND Tribunal in 2021 did not change the annual review date. She also said the next annual review was due by 31 March 2023, but the current annual review was over eight months late.
24. The Council issued F’s draft EHC plan on 3 November. Mrs D provided her comments on 14 November. She also chased for a response for her requests for funding for DT workshop lessons and the educational software. The Council responded and said the updated educational psychologist’s assessment would help clarify what provision F required.
25. The Council issued its final response to Mrs D’s complaint. It apologised and accepted the annual review should have taken place in February 2022.
26. Mrs D remained dissatisfied with the Council’s response and referred her complaint to the Ombudsman.

Back to top

Analysis

27. The Council is at fault for its excessive delays during the annual review process. The annual review meeting took place four months later than it should have done. The Council should have decided within four weeks of the meeting, which was 20 July, whether it would keep F’s EHC plan as it was, amend it, or cease to maintain it. The Council missed this deadline as it did not confirm it was going to amend F’s EHC plan until 5 October. It also should have sent F’s draft EHC plan with its letter on 5 October. However, it did not send it until 3 November. It still has not finalised his EHC plan, more than a year after the annual review was due.
28. When the Council responded to my enquiries, it said it had a duty to identify a post 16 placement for F by 31 March 2023 and it was aiming to finalise his EHC plan by this deadline. The Council’s comments are concerning. It appears it does not understand it should have finalised the annual review from last year before focussing on the annual review for this year.
29. The Council’s faults have caused Mrs D a significant injustice. She has been put to significant inconvenience chasing matters up. It has caused her frustration and upset and her appeal rights to the SEND Tribunal have been significantly delayed.
30. Mrs D says F has missed out on preparing for adulthood skills and further provision, such as DT workshop lessons and access to educational software, because of the Council’s faults. While I note Mrs D’s comments, it is difficult to state what, if any, educational provision F has missed out on as the Council has not finalised his EHC plan. However, the Council’s delays have caused her uncertainty over F’s educational provision over an extended period which it needs to remedy.

Back to top

Agreed action

31. To address the injustice caused by fault, by 17 May 2023 the Council has agreed to:

• Apologise to Mrs D.
• Pay Mrs D £300 to reflect her distress, upset and frustration.
• Pay Mrs D £1,000 which is a symbolic payment to reflect her uncertainty over F’s educational provision.
• Finalise F’s EHC plan.

32. By 16 June 2023 the Council will:

• Issue written reminders to relevant staff to ensure they are aware when an annual review must take place and the statutory timescales for issuing EHC plans after an annual review.

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

Back to top

Final decision

34. There was fault by the Council, which caused Mrs D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman