Summary: Miss X complained about how the Council reviewed her daughter, Y’s, Education, Health and Care plans in 2021 and 2022 and about its communication. The Council was at fault for delay in finalising changes to Y’s EHC plan after the 2021 annual review and for poor communication. This caused Miss X frustration, for which the Council has agreed to pay £100. Y did not experience a significant personal injustice.

The complaint

1. Miss X complained the Council:
• delayed issuing final EHC plans after her daughter, Y’s, annual reviews in October 2021 and September 2022;
• sent an old version of Y’s EHC plan when asking schools if they would give Y a school place for the first year of secondary school;
• sent her an EHC plan which named the wrong school; and
• communicated poorly with her.
2. Miss X said this caused her significant distress and frustration and meant she went to avoidable time and trouble to contact the Council.

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The Ombudsman’s role and powers

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. 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)
5. 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

6. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Miss 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

Relevant law and guidance

EHC plans

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s 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 a child will receive and Section I names the school or type of school the child will attend.

Annual reviews

9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan every 12 months after this as a minimum.
10. The review process comprises a meeting with the child’s school and parents to review the suitability of the EHC plan, followed by the council’s decision whether to maintain, amend or discontinue the EHC plan. Councils must send this decision within four weeks of the review meeting.
11. 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.
12. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”.
13. If the child or young person is due to change educational setting, the council should consult with schools using the draft amended plan to see which can meet the child or young person’s educational needs and have space.
14. 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.
15. Caselaw has clarified councils should take no more than 12 weeks from the date of the annual review meeting to issue the amended EHC plan.

Phase transfers

16. An EHC plan 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. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest, for transfers into or between schools. One of the key phase transfers is primary to secondary school.

What happened

17. Miss X’s daughter, Y, has had an EHC plan since 2018. In June 2020, the Council issued an amended final plan. The special educational provision was made up of strategies for staff at the school to use to support Y and develop her skills. It named the mainstream junior school Y attended at that time.
18. In mid-October 2021, Y’s school held an annual review meeting on the Council's behalf. The Council issued its decision to amend Y’s plan three days later.
19. 11 months later, in late September 2022, the Council issued Y’s amended EHC plan. The provision remained effectively the same. It removed one element of provision from the 2020 plan and clarified that instead of staff offering Y a break to move her body, Y should ask for a break.
20. At the end of the month, Y’s school held an annual review meeting on the Council's behalf. Y was in year 6 at this point and preparing to go to secondary school in September 2023.
21. In early October 2022, the Council consulted with two secondary schools Miss X had expressed a preference for. The Council says it sent the most recent versions of Y’s EHC plan and annual review minutes that it had access to. The Council cannot evidence what documents it sent because it deletes those records after three months.
22. In early November, the Council sent Miss X its decision to amend Y’s EHC plan. It finalised the plan in late November. The plan named Y’s primary school.
23. After the Council decided which secondary school to name in Y’s EHC plan, it issued a new amended plan on 15 February 2023. The plan named Y’s primary school as her setting until September 2023. It said that from September 2023, Y would attend a secondary school which the Council had not consulted with. When Miss X made the Council aware of its mistake, it issued a new final EHC plan the same day naming one of Miss X’s preferred schools from September 2023 onwards. The Council told me it named the wrong school due to an administrative error.
24. Miss X was unhappy about the delay issuing Y’s EHC plans and complained to the Council. The Council responded and in part, said the following.
• It was sorry for the delay in issuing Y’s EHC plan after the October 2021 annual review.
• It accepted it had taken too long to issue its decision to amend Y’s EHC plan after the September 2022 annual review meeting.
• Its officers should respond to contact from parents within 10 working days. It accepted that did not always happen and apologised.
25. Miss X was dissatisfied with the Council's response and complained to the Ombudsman. I asked the Council for a record of its contact with Miss X. The evidence shows the Council responded to Miss X’s emails quickly, often within a day or two. There were several instances where the Council promised Miss X a phone call which did not happen.
26. In response to my enquiries, the Council said that in recent years the number of EHC plans it was responsible for had increased by 156%. To cope with the increase it had re-structured the SEN department. It said it was constantly looking for new ways to improve.

Findings

Delay issuing Y’s EHC plans

27. The Council has accepted it was at fault for delays in issuing Y’s EHC plan after the October 2021 annual review meeting and I agree with this finding. Councils should take no more than 12 weeks from the date of the annual review meeting to issue a child’s EHC plan. The Council significantly delayed when it instead took 11 months to issue Y’s plan in September 2022. This caused Miss X frustration. The Council has apologised to Miss X, which I welcome, but I have also made a further recommendation below to remedy that injustice.
28. The delay did not cause Y a significant personal injustice because the provision in Y’s previous (June 2020) EHC plan was almost identical to that in the September 2022 plan. Therefore, Y did not miss out on provision she should have had.
29. I have considered whether to make a recommendation to prevent the fault occurring again. However, after a recent decision (22 010 147), the Council agreed to review its procedures for EHC plans and issue reminders to relevant staff to ensure when reviewing EHC plans, it does so without delay. The Council is carrying that recommendation out so I have not made a further one.
30. Councils should issue their decision to amend, maintain or cease an EHC plan within four weeks of an annual review meeting. The Council took five weeks to issue its decision to amend Y’s EHC plan after the September 2022 review meeting. This delay does not justify a finding of fault, particularly given the Council was still able to issue Y’s final EHC plan within twelve weeks of the annual review meeting.
31. Once the Council determined which secondary school Y should move to in September 2023, it promptly issued an amended EHC plan. It issued that plan by 15 February in accordance with the law and in time to progress Y’s transfer to secondary school. It was not at fault.

Consultations with schools

32. The Council no longer holds records of what it sent the schools when asking if they could give Y a school place and meet her special educational needs. I will therefore not be able to resolve what the Council sent. In any event, even if the Council had sent the June 2020 EHC plan, this is unlikely to have had an impact because the provision in that plan and the September 2022 plan is so similar.

School named in February 2023 EHC plan

33. The Council mistakenly named a school in Y’s February 2023 EHC plan which it had not consulted with and which it had no intention of naming. This was wrong but does not amount to fault, particularly because the Council issued the corrected EHC plan the same day.

Communication with Miss X

34. The Council accepts its communication with Miss X was inadequate. I agree the Council was at fault for its poor communication. Although it responded to Miss X’s emails promptly, it repeatedly said someone would call her and those calls did not happen. This caused Miss X undue frustration. The Council has apologised, which is an appropriate remedy.

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Agreed action

35. Within one month of the date of my final decision, the Council will pay Miss X £100 in recognition of the frustration she experienced due to the Council's delay in finalising Y’s EHC plan after the October 2021 annual review.
36. The Council will provide us with evidence it has complied with the above action.

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Final decision

37. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman