Summary: Mr X complained that the Council refused to complete an annual review of his son’s education, health and care plan and failed to issue a revised EHCP by the statutory deadline following a phase transfer review. We found the Council was not at fault.

The complaint

1. Mr X complains that the Council has:
• refused to complete an annual review of his son’s education, health and care plan which has resulted in important information not being recorded; and
• failed to issue a revised EHCP by the statutory deadline of 31 March following a phase transfer review.

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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. 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)
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.

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How I considered this complaint

5. I have considered all the information provided by Mr X and the Council together with the Special Educational Needs and Disability Regulations 2014.
6. Mr X and the Council 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

Legal and administrative background

Education health and care plan

7. A child with special educational needs may have an Education, Health and Care (EHCP). 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 tribunal can do this.

Appeal rights

8. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Arrangements for reviewing an EHCP

9. Under the Children and Families Act 2014 and the SEND Regulations 2014 there is a requirement to conduct annual reviews for all children and young people with an EHCP. The annual review should be used to actively monitor the child’s progress towards their outcomes and longer term goals within the EHCP.
10. An annual review must be undertaken as a minimum every 12 months. It must take place within 12 months of the previous annual review meeting.
11. The procedure for reviewing and amending EHCP’s is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must notify the child’s parent whether it intends to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
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 EHCP. The right of appeal is only engaged when the final amended plan is issued.

Transition planning

15. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.
16. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHCP – including specifying the post-16 provision and naming the institution – must be completed by 31 March in the calendar year of the transfer.
17. From Year 9 onwards, the council has a duty to ensure that the annual review meeting “considers what provision is required to assist the child or young person in preparation for adulthood and independent living” (Regulation 20 (6) and Regulation 21 (6) Special Educational Needs and Disability Regulations 2014)

Key facts

18. Mr X’s son, C, had an EHCP which was last reviewed on 14 October 2021. C is in Year 11 which is the final year of secondary school and should be transferring to post-16 education in September 2023.
19. The Council agreed to complete a re-assessment of C’s special educational needs in January 2022.
20. In August 2022 the Council issued a draft EHCP.
21. On 8 October Mr X contacted the Council saying he had not received notification of the next annual review meeting. The Council said it would not be holding an annual review. Mr X complained. The Council responded saying there was no need to hold an annual review when the EHC needs re-assessment had supplanted it and this process was started before the annual review was due. It said it would arrange a phase transfer review for C and expected this to begin in the week commencing 12 December 2022 with the phase transfer review meeting in early January 2023. It said an amended EHCP would be issued by the statutory deadline of 31 March 2023.
22. The Council issued a final EHCP on 14 October 2022 following the re-assessment. Mr X complained that the re-assessment was not complete because it did not include advice from an educational psychologist (EP). While there was some disagreement about this, the Council agreed to seek advice from an EP as soon as possible and amend the EHCP, if necessary, following receipt of the advice.
23. On 5 December Mr X appealed to the SEND Tribunal against the content of the EHCP.
24. On 19 December 2022 the Council confirmed it was proposing to hold a phase transfer review meeting at the end of January 2023. It also said that, as required by the Regulations, it would seek advice from a range of professionals.
25. The EP issued a draft report on 27 January 2023.
26. A phase transfer review meeting was held on 7 February 2023.
27. On 21 February 2023 Mr X wrote to the Tribunal asking to withdraw his appeal. The Tribunal did not accept his request and the case proceeded through the Tribunal process.
28. A further meeting took place on 28 February 2023 to conclude the phase transfer review.
29. The Council issued a draft EHCP on 22 March 2023. It did not issue a final plan before the deadline of 31 March. At a hearing on 25 April 2023, the Tribunal ordered the Council to submit the draft EHCP in the format of a working document incorporating amendments resulting from the recent annual review.

Analysis

Failure to complete an annual review in October 2022

30. Mr X says that, in the 12 months leading up to the annual review date, C suffered two educational placement breakdowns and received almost no education or SEN provision. He says the Council’s refusal to carry out an annual review meant these matters were not recorded.
31. The Council says it did not agree to Mr X’s request to complete a review of C’s EHCP in October 2022 because:
• a full reassessment of C’s EHC needs had recently been concluded so a range of recent evidence was available in relation to his identified needs and the provision required to meet them;
• following completion of the reassessment, a final EHCP had been issued on 14 October 2022; and
• a review would be held as part of the phase transfer process with a final EHCP being issued by 31 March 2023.
32. Mr X disagrees with the Council’s assertions. He says the re-assessment was not complete because the Council did not obtain a new EP report. This issue has previously been considered as part of a separate complaint to the Ombudsman so I will not consider it again here.
33. The Council has a statutory duty to review the EHCP at least every 12 months. However, it issued a new final EHCP on 14 October, the day the annual review was due. So, there was no requirement for it to hold an annual review of the previous EHCP. I therefore find no fault by the Council in not holding an annual review.

Failure to issue a final EHCP by 31 March 2023

34. The statutory deadline for the review of a young person’s EHCP where they are moving from school to post-16 education is 31 March in the year of the transfer.
35. The Council says it could not issue a final EHCP because Mr X had already appealed and the power to issue a final EHCP had been transferred to the SEND Tribunal which “stands in its shoes”. It maintains that until the Tribunal makes an order ending the appeal and directs the Council what to include in the disputed EHCP, it cannot issue any new plan.
36. When the Council issued the draft EHCP on 22 March 2023 Mr X had already started the appeal. In these particular circumstances, I do not consider the Council was at fault in failing to issue a final EHCP by 31 March. It had done as much as it reasonably could in issuing a draft EHCP and it was then for the Tribunal to decide the content of the final plan using the draft as a working document. Even if the Council had issued a final EHCP, the Tribunal would have used that as a working document instead so it would not have altered the outcome.

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Final decision

37. I do not uphold Mr X’s complaint.
38. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman