Summary: We investigated if there were systemic faults in the Council’s administration of annual reviews for pupils with Education, Health and Care plans. We upheld the complaint, finding evidence of repeated delays in the Council telling parents of the outcome of annual reviews and in issuing amended and finalised plans. The Council satisfied us it had taken some steps to address these faults. At the end of this statement, we set out further action the Council has agreed to improve its service in this area.

The complaint

1. We opened this investigation to consider a complaint there were systemic faults in the Council’s administration of annual reviews for pupils with Education, Health and Care (EHC) plans.

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The Ombudsman’s role and powers

2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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.
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)

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How I considered this complaint

6. Before issuing this decision statement I took account of:

• ten investigations where we have issued decisions since 1 April 2022 finding fault causing injustice in the Council’s administration of an EHC plan review;
• information gathered from the Council in response to written enquiries; also in a meeting with senior officers responsible for management of the annual review procedure;
• relevant law and guidance as referred to in the text below.

7. I gave the Council opportunity to comment on a draft version of this decision statement. I took account of comments it made in response before finalising the content of the 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.

Legal and Administrative Background

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
10. Legislation and Government guidance set out the procedure for reviewing and amending EHC plans. Councils should review EHC plans at least annually.
11. Within four weeks of a review meeting, a council must tell the child’s parent or young person of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments. It should do this within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
13. Following comments from the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the finalised version as soon as practicable. In any event this should be within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
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 EHC plan; or
• a decision to maintain an EHC plan without amendment; or
• a decision to cease an EHC plan.

15. The right of appeal becomes engaged when the council issues the final amended plan.

Why we began this investigation

16. In December 2022 we completed an investigation which found the Council at fault for a series of delays in reviewing a child’s EHC plan. Among the faults found were that the Council:

• had failed to confirm within four weeks of the review to say whether it would be maintaining the EHC plan, amending it or ending it. The annual review took place in September 2021 (it should have been in May 2021). The Council did not confirm it would amend or issue proposed amendments until May 2022.
• It then failed to issue a final EHC plan within the next eight weeks and by December 2022 had still not done so. By this time the next annual review cycle had begun again even though the Council had not completed amending the EHC plan, following the previous review.

17. In its replies to the complainant, the Council had suggested the delays were part of a wider problem. It referred to staffing shortages and that it was reviewing its management arrangements to try and improve its service.
18. This was the fourth decision we had issued since April 2022 where we had found fault in the Council’s administration of annual reviews. In all these cases the Council had taken more than three months to send out a final amended EHC plan following a review. In one case a complainant had gone on to successfully appeal the EHC plan, resulting in significant changes to the content of the plan.
19. In December 2022 we were also investigating several other complaints alleging fault in the annual review process. By August 2023, we had issued a further six decisions finding fault because of delay in issuing an amended EHC plan and / or a final EHC plan following a review. These investigations covered events between December 2020 and summer 2022. In the worst case we found delay of up to six months in issuing an amended EHC plan and up to 12 months in issuing a final EHC plan following a review.
20. These investigations have resulted in complainants receiving apologies and the Council paying a combined total of thousands of pounds to those affected.

Our investigation

21. We asked the Council for statistics around the annual review process. These showed:

• that it has responsibility for around 4700 pupils with EHC plans;
• that between the academic year 2019/20 and 2021/22 the number of annual reviews it processed had risen by over 60% from just under 2,000 to over 3,000 a year;
• that in the academic year to August 2023 it anticipated a further increase of 40% in the number of annual reviews to over 4,500 (so more than double the number in 2019/20);
• that in 2021-22 it had completed 91% of annual reviews falling due. Of these, in 54% of cases it had received the necessary paperwork within two weeks of the annual review meeting. In 30% of cases, it completed processing the annual review within four weeks;
• in around 700 cases it had issued amendment notices. In just 12% of cases did it issue a final amended plan within 12 weeks of the annual review meeting. In 37% of cases, it issued a final plan within eight weeks of sending an amendment notice;
• in the first six months of the 2022/23 academic year it had received 30 appeals from parents wanting to take their case to a SEND Tribunal following an annual review (so less than 2% of the total).

22. The Council told us it had a separate team to monitor EHC plan reviews. A child with an EHC plan will not keep the same caseworker throughout their time in the county. Following the issue of the first EHC plan, the Council will assign their case to a reviewing officer as the review falls due.
23. The Council told us that it recognised it needed to improve its performance to ensure that in more cases it met the statutory timescales for processing annual reviews. It had therefore increased its budget for its review team by 40% for the 2023/24 financial year. The Council hoped that better staffing levels would reduce the pressure on team members and lead to higher rates of staff retention.
24. The Council told us that it had also given further advice to schools around its expectations for annual reviews. Schools or other educational institutions usually administer annual reviews. So, they organise review meetings and send paperwork after the meeting. The Council said it had reminded schools of the need to send papers to it promptly (within two weeks) given that in nearly half of cases it took them longer than this.
25. In response to a draft of this decision the Council told us that it had now received funding to create a new post, enabling an officer to focus specifically on annual reviews. And it had introduced a new process in support of this from July 2023. Further, that it had improved lines of accountability for its managers, to identify responsibility for ensuring it held annual reviews in a timely way. It was also encouraging its officers to ensure it only agreed to amending EHC plans where necessary.
26. The Council also told us that following this investigation it had sought to identify any outstanding complaints it had which were about delays in amending an EHC plan. It had prioritised those and triaged new complaints to identify similar cases.

Our findings

27. It is evident from our casework and the information provided to us by the Council that it has experienced systemic problems in meeting Government expectations for processing annual reviews. In the period for which we had data, the Council had not met the four-week target for processing annual reviews in seven out of ten cases. In those cases where it agreed to amend the EHC plan, it was only able to meet the 12-week target for issuing a final amended plan in around two out of ten cases.
28. We recognise the exceptional pressures the service has been operating under over recent years. It has clearly seen an unprecedented increase in the number of children and young people needing EHC plans. This has resulted in a consequent increase in the number of reviews required. This increase will have put pressure on staff and those pressures in turn have led to problems with retention and recruitment. We also recognise the Council will experience delays in processing annual reviews when schools and other educational institutions do not forward paperwork in good time.
29. But while we understand why the Council has struggled to meet Government expectations in this area, this is nonetheless evidence of a widespread service failure. So, we find the Council at fault.
30. The numbers of people affected by this fault over the past 12 months will be in the thousands. However, it is unlikely that many of these will have suffered a significant injustice. We consider injustice is unlikely to arise in cases where a council chooses to maintain an EHC plan without amendment and this is not contested, unless any delay in that decision significantly exceeds the four-week timescale.
31. Injustice is also unlikely to arise in the small number of cases where the Council decides to cease an EHC plan. Because in those case a child will continue to benefit from their existing EHC plan longer than intended.
32. The greatest injustice is therefore likely to arise in those cases where the Council agrees to amend an EHC plan, but then delays in issuing the amendments and / or the final plan (our casework is illustrative of this). The first injustice in these cases will be the greater uncertainty created about what the Council considers it needs to provide to meet the child’s needs. Second, there is the risk a child will be going without the provision they need, as EHC plans are working documents that inform the service the child receives from teachers and other professionals.
33. A further injustice will arise in cases where there remains dispute about the content of an EHC plan, even after the Council has amended it. Because delays in issuing plans, lead to a consequent delay in a parent’s ability to appeal the plan to the SEND Tribunal. This may also apply occasionally where there is dispute over the Council’s decision not to amend, or to cease, an EHC plan.
34. We welcome that the Council has recognised the problems it has experienced in this area. It has allocated a higher budget to its review team and reviewed relevant procedures. We hope this will show improvements over time and we also welcome the priority given to complaints about delay in amending an EHC plan. But for so long as the Council continues to fall significantly short of statutory expectations, it will need to consider the impact on parents of delays. The Council accepts this and has agreed action set out below which we hope will complement that work it is already undertaking to improve its performance.

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Agreed action

35. The Council has agreed that within two months of this decision it will brief all staff working on annual reviews of our expectations for remedying complaints and good administrative practice. Full details of this guidance can be found online, but the key principles to stress are that:

• we expect the Council to meet the annual review statutory timescales and in cases where it has not done so and receives a complaint it should prioritise to ensure it does so without further delay; it should ensure proper signposting of the complaint through the Council’s complaint procedure;
• we expect the Council to let parents and children / young people know if it is not going to be able to meet the statutory timescales following an annual review;
• we expect the Council to consider offering a symbolic payment if it receives a complaint from a parent about delay and this has resulted in a significant injustice to their child; this will be most apparent in cases where a child’s provision will have been impacted by a delay – for example, following amendment of an EHC plan or where a parent has gone on to successfully appeal the Council’s decision following an annual review.

36. Within three months of a decision on this complaint, the Council has agreed it will give a copy of this decision to the Lead Member and relevant committee of elected Councillors with responsibility for overseeing education for children with special educational needs. It will accompany this with a report from the Council updating on its performance in processing annual reviews following the increase in resources for the 2023/24 financial year. We want the relevant Members to note this decision and consider what further steps may be needed to meet the statutory review timescales. The Council has agreed to tell us the outcome of that discussion and let us know any further action it decides to take.
37. The Council will provide us with evidence therefore, that it has complied with the above actions.

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Final decision

38. For reasons set out above we uphold this complaint finding fault by the Council causing injustice. The Council has agreed action to remedy that injustice. Consequently, we have completed our investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman