Summary: Miss X complained about the Council’s actions in relation to her child, Y’s, Education, Health and Care (EHC) Plan. The Council was at fault. It did not consider amending Y’s EHC Plan when it was aware Y was struggling at school and it did not properly complete the annual and emergency review process of Y’s EHC Plan. This affected Y’s educational development for two school terms and it caused distress, frustration and uncertainty to Miss X. The Council has agreed to apologise to Y and Miss X and give them a symbolic payment to acknowledge the injustice caused. The Council will also provide training to its staff in relation to the process of completing a review of an EHC Plan and it will review its current service improvement to prevent a recurrence of fault.

The complaint

1. Miss X complained about the Council’s actions in relation to her child, Y’s, Education, Health and Care (EHC) Plan. She said the Council:
• completed an annual review in July 2021 and did not amend and issue a final EHC Plan despite recommendations being made during the review meeting; and;
• completed an emergency review in January 2022 and again, did not amend and issue a final EHC Plan despite recommendations being made during the review meeting.
2. Miss X said it has negatively affected Y’s educational development and it has caused her distress, frustration and uncertainty. Miss X and Y moved to another council area in July 2022. She said the Council’s delay in finalising the EHC Plan delayed the new Council (Council B) finding a suitable placement for Y.
3. Miss X said she wants the Council to apologise to her and Y and provide them with a financial remedy for the injustice caused to them. She also wants the Council to make service improvements to prevent a recurrence of fault.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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.
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I spoke with Miss X and considered the information she provided.
10. I considered information the Council provided.
11. I considered our “Guidance on remedies”.
12. Miss X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care Plans

13. Some children and young people with special educational needs and disabilities will have an Education, Health and Care (EHC) Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Annual review

14. An annual review is the process of identifying the needs, provision and outcomes of a child’s EHC Plan and whether they need amending. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
15. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan.
16. Where a council proposes to amend an EHC Plan, 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 within four weeks of the annual review meeting.
17. 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 EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.

Appeal rights

18. 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.

The transfer of EHC Plans between Councils

19. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. Once the EHC Plan has been transferred, the ‘new’ council becomes responsible for maintaining it and securing the special educational provision specified in it.

Parent’s duty

20. The Education Act 1996 states parents have a duty to ensure children of compulsory school age receive a suitable full-time education adapted to their age, ability, aptitude and special needs.

What happened

21. Miss X’s child, Y, has special educational needs and an EHC Plan. In 2021, Y attended a secondary mainstream school which delivered specialist provision to them.
22. In mid-July 2021, the Council completed an annual review of Y’s EHC Plan. The annual review meeting record noted the School said Y’s current EHC Plan did not meet their needs due to the school being unsuitable. It said Y would benefit from a specialist school to support their needs. However, the Council took no further action following the annual review meeting.
23. In December 2021, Miss X told the Council she and Y were moving to Council B’s area in April 2022. She asked the Council to complete an emergency review of Y’s EHC Plan so Council B had an updated EHC Plan. The Council agreed to complete an emergency review.
24. In mid-January 2022, the Council contacted Council B and informed it Miss X and Y were relocating to its area in April 2022. The Council sent Council B Y’s current EHC Plan and the previous annual review document from July 2021.
25. Towards the end of January 2022, the Council completed an emergency review. The review meeting record noted:
• Y was not currently engaging in their lessons at school; and
• the School said Y’s current school was not suitable to meet their needs and they required a specialist school;
26. Several recommendations were made to amend the EHC Plan following the emergency review such as specifying the duration and frequency of provision and updating the professionals section.
27. By February 2022, the Council had not received the emergency review document from the School, and so asked the School to send it.
28. Miss X and Y did not relocate to their new home until later.
29. In April 2022, Miss X contacted the Council and said Council B had not received Y’s final EHC Plan following the emergency review. Miss X said she was concerned as Council B was not able to search for a suitable school for Y until it had received the final EHC Plan. Miss X also told the Council she was taking Y out of school and taking them abroad. She said Y would not return to the school as the current school and education was not appropriate for them.
30. The Council responded to Miss X and said it was still waiting for the School to send it the review document and so no amendments had been made as yet. It told Miss X it would prioritise Y’s EHC Plan. The Council said in the meantime, it had sent Council B the current EHC Plan and the previous annual review document from July 2021. It said this would provide Council B with an indication of Y’s needs.
31. In April 2022, the Council again asked the School for the emergency review document.
32. By the end of July 2022, Miss X and Y had moved areas. Council B told Miss X it had still not received the final EHC Plan following the emergency review in January 2022. Following this, Miss X contacted the Council and queried the progress of the EHC Plan.
33. In August 2022, the Council contacted the School and asked it to send it the annual review document. The School did this however the Council was unable to access the document due to a technical issue. The Council therefore asked Council B to contact the School for the document. In the meantime, the Council again sent Council B Y’s current EHC Plan and the annual review document from July 2021.
34. In November 2022, Miss X complained to the Council. She said the Council had failed to update Y’s EHC Plan following reviews in July 2021 and January 2022. She said it was important for Y to have an EHC Plan which reflected their current needs so that Council B could find a suitable placement for Y. Miss X said Council B had still not found a suitable placement for Y and blamed the Council.
35. The Council responded to Miss X and said:
• there were no recommendations to amend Y’s EHC Plan following the review in July 2021;
• following the emergency review in January 2022, the Council had intended to issue a proposed amended EHC Plan before Miss X had moved locations however, the School did not send it the relevant document. The Council said it requested the document from the School and once received, it was unable to access it. It apologised to Miss X for not amending and issuing a final EHC Plan before she moved; and
• it had sent Council B the current EHC Plan and the previous annual review document in January 2022 and August 2022. These documents would have given Council B an indication of Y’s needs. It would have been Council B’s responsibility to adopt the EHC Plan, hold a review and/or amend it as required.
36. Miss X remained unhappy and complained to us in February 2023. In her complaint, she said Council B had still not found Y a suitable placement for them to attend and so Y remained at home.
37. In response to my enquiries, the Council said:
• it did not send Miss X a decision letter following the annual review meeting in July 2021 and it did not inform Miss X of her right of appeal to SEND Tribunal;
• it did not send Miss X a decision letter and proposed amendments following the emergency review meeting in January 2022; and
• since Miss X’s complaint, the Council implemented a system where following a review meeting, the Council will be notified by the system if it has not received the review record within 12 months of a review meeting.

Back to top

Findings

Annual review meeting July 2021

38. The Council completed an annual review meeting in July 2021. The meeting record said the current EHC Plan was not meeting Y’s needs due to the school being unsuitable. It said a specialist school would be more suitable for Y. Given there were concerns about the suitability of the school, the Council did not consider consulting with different schools. Y remained at a school which could not meet their needs. This was fault.
39. After the annual review meeting, the Council did not send Miss X a decision letter explaining its decision to maintain the EHC Plan. This was fault and not in line with guidance.
40. In addition, the Council did not inform Miss X her right of appeal to SEND Tribunal. This was fault. If the Council had told Miss X its decision was to maintain the EHC Plan, Miss X could have appealed to SEND Tribunal if she disagreed with the decision.

Emergency review meeting January 2022

41. The Council completed an emergency review meeting in January 2022. The meeting record said again the school was unsuitable for Y and therefore the EHC Plan was not reflective of Y’s current needs. It continued and said Y was not engaging in their lessons at school. Other recommendations were made during the meeting however, there was no recommendation in relation to the school being unsuitable for Y. This was fault.
42. Following the emergency review meeting, the Council did not send Miss X a decision letter explaining its decision to amend the EHC Plan. It did not send Miss X the existing EHC Plan with proposed amendments. This was fault and not in line with guidance.
43. The Council did not amend and issue a final EHC Plan. It said this was because the School had not sent it the necessary document which was required to amend the EHC Plan. The Council contacted the School in February, April and August 2022 and asked it to send the document. The Council should have made more effort to obtain the document it required. It allowed the case to drift which therefore caused delay. This was fault and not in line with guidance.

Injustice

44. The annual review meeting took place in mid-July 2021. Given this was towards the end of the school year, I am considering any injustice caused to Y from September 2021.
45. Miss X took Y out of school in April 2022. I recognise Miss X did this as she believed the current school and education was not appropriate for Y however, I have also considered it was Miss X’s choice to remove Y from school. Miss X also had a duty to ensure Y received a suitable education. As a result, I am considering any injustice caused to Y until April 2022. The total period of injustice I am considering is two school terms.
46. The review meeting in July 2021 and January 2022 both determined the current school was not suitable to meet Y’s needs. During the meeting in January 2022, it was highlighted Y had stopped engaging in their lessons at the school. The Council was aware Y was struggling at the school but it did not consider amending the EHC Plan in some way. On the balance of probabilities, it is likely the school was not suitable to meet Y’s needs which negatively affected Y’s educational development as they were not receiving provision they needed.
47. Miss X was caused distress, frustration and uncertainty by the faults identified above. The Council failed to send Miss X a decision letter following each review meeting and it did not inform Miss X of her right of appeal following the annual review meeting in July 2021. The Council left Miss X with uncertainty as she believed had the Council amended and issued the EHC Plan within good time and before her move, Council B could have found a suitable school for Y sooner.
48. I recognise the Council has made a service improvement since Miss X’s complaint which is to take action if it has not received the review record following a review meeting, from schools within 12 months of the meeting. However, this will not support the Council to prevent a recurrence of fault and act in line with guidance. The Council should be contacting schools within four weeks of the review meeting, if it has not received the review record by then, considering the Council must issue a decision letter to the parent within four weeks of the review meeting, explaining its decision and/or recommendations it intends on actioning.

Back to top

Agreed action

49. Within one month of the final decision, the Council has agreed it will:
• apologise to Y for not considering amending their EHC Plan in some way to support their educational development when it was aware between September 2021 and April 2022, Y was struggling with school; and
• apologise to Y for the lack of provision in line with their EHC Plan.
50. To reflect the above, the Council will also:
• give Y a symbolic payment of £900 for the school term between September 2021 and December 2021; and
• give Y a symbolic payment of £900 for the school term between January 2022 and April 2022.
51. Within one month of the final decision, the Council has agreed it will:
• apologise to Miss X and give her a symbolic payment of £500 for the distress, frustration and uncertainty the Council caused her for the faults identified above.
52. Within three months of the final decision, the Council will provide training to its staff in relation to completing reviews of EHC Plans, whether it is an annual review or an emergency review so that actions are in line with guidance. This is to ensure the Council:
• sends parents a decision letter, and where it has decided to amend the EHC Plan, it should send the parents the proposed amendments for comments within four weeks of a review meeting;
• informs them of their right of appeal to SEND Tribunal within four weeks of a review meeting;
• considers amending the EHC Plan if the existing EHC Plan is not suitable for the child or young person’s needs; and
• issues an amended EHC Plan as soon as practicable and within 12 weeks of the review meeting.
53. Within three months of the final decision, the Council will also:
• review the service improvement it made in relation to contacting schools if it has not received the review record following a review meeting. This is to ensure the Council contacts schools within four weeks of the review meeting, if it has not received the record.
54. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

55. I have now completed my investigation. The Council was at fault. It has agreed to action the recommendations to remedy the injustice caused and prevent a recurrence of fault.

Back to top

Investigator's decision on behalf of the Ombudsman