Summary: Ms X complained that the Council took too long to issue an Education, Health and Care plan for her son after an annual review in November 2021. She also complained her son was not provided with school transport and the Council did not include his views in the final plan. We found there was significant delay, a failure to include Mr Y’s views in the plan and a lack of ‘suitable’ annual review in 2021 and 2022. The Council agreed to apologise, make a payment to Ms X and Mr Y and provide him with additional services.

The complaint

1. Ms X complains that following an annual review of an Education, Health and Care (EHC) plan of her son, Mr Y, in November 2021 the Council failed to:
• complete the statutory annual review process in time for Mr Y’s transition between schools;
• name the correct setting in the final amended EHC plan;
• conduct an annual review in 2022;
• agree school transport for Mr Y when she was unable to take him to college temporarily;
• include Mr Y’s views in his EHC plan it issued in January 2023; and
• keep her informed during the corporate complaints process.
2. Ms X says this has caused her and Mr Y avoidable distress. She said the Council failed to prepare Mr Y for his transition and she had to do it herself with no outside help. This further added to the stress she and Mr Y experienced.
3. Ms X also said that Mr Y missed three weeks of education when the Council refused to provide transport for him.
4. Ms X would like the Council to apologise to her and to Mr Y, and to provide a financial remedy for the stress they have experienced.

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The Ombudsman’s role and powers

5. 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)
6. 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) 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.
7. 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

8. Before issuing this draft decision I took account of:
• information gathered from the Council in response to written enquiries;
• relevant law and guidance as referred to in the text below; and
• information and comments from Ms X about her complaint.
9. Ms X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Annual Reviews

10. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
11. Councils must review an EHC plan at least every 12 months.
12. If the review is held in the child’s school, the school must prepare and send out a report setting out any amendments to the EHC plan it is recommending. It must do this within two weeks of the review meeting.
13. 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. If it decides to amend it, it must do so without delay and issue an amendment notice to the child’s parent of its decision.
14. Although the Code does not give any deadline for the issuing of an amendment notice, a recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
15. The Council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
16. When it suggests and agrees changes to the draft EHC plan it should amend the draft plan and issue the final EHC plan as quickly as possible. It must happen within eight weeks of the date the Council sent the proposed amendments to the parents.
17. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
18. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
19. The Council must review and amend the EHC plan in sufficient time prior to a child or young person moving between key phases of education. This is to allow for planning for and, where necessary, commissioning of support and provision at the new institution. It must complete the review and any amendments by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (SEN Code paragraph 9.179).

Preparation for adulthood

20. The Code gives detailed guidance on preparing for adulthood. This includes looking at higher education, training or employment. For young people with an EHC Plan, preparation should start in Year 9. Under the Care Act 2014 councils must carry out a social care needs transition assessment for the young person when it becomes apparent it is likely they would need care and support after they turn 18. For young people with an EHC Plan this planning should take place as part of the annual review process.
21. The Code says the local authority should ensure the transition to adult care and support is “well planned [and] is integrated with the annual reviews of the EHC plans”.

What happened

22. At the time of this complaint Mr Y was 16 years old and he was attending a private college. The records show that he was supposed to stay there until July 2022.
23. The Council’s records show that Mr Y’s private college held an annual review of his EHC plan in July 2021. The report from this annual review said that Mr Y would continue to attend the private college for another year, so until July 2022.
24. The Council emailed Ms X in late September 2021 and told her it would hold an annual review of Mr Y’s EHC plan in November. The review took place as planned.
25. Mr Y’s private college provided an update to the Council in mid-February 2022. The note on the Council’s system said that Mr Y had a successful visit to a mainstream college that he was keen to start but had to wait for a place offer. It also said his college was planning another transition visit.
26. Between January 2022 and September 2022 Ms X supported Mr Y in getting a place at a mainstream college outside of the Council’s area. He started his preferred course in early September 2022.
27. There are no records showing the Council reviewed Mr Y’s EHC plan in 2022, despite the last review taking place in July 2021.
28. In late September 2022 the Council asked Mr Y’s private college for a copy of the delayed post annual review report. The Council received both the July 2021 and November 2021 reports from the private college a few days after this. Approximately a month later the Council sent an amendment notice to Ms X telling her what changes it planned to make to Mr Y’s EHC plan.
29. Around the same time Ms X contacted the Council and said that Mr Y would require transport to his college as he could not cope with using the public transport. She also said that she was having difficulties completing the transport application as she was getting an error message. The SEN officer told her to contact the transport department.
30. The Council issued Mr Y’s draft EHC plan following the November 2021 annual review in early December 2022. A few days after this Ms X complained to the Council about the delay in finalising his EHC plan after the last annual review it held.
31. Around this time Ms X also contacted the Council and said that she had a car accident and could not get Mr Y to college. Because of this he was missing education and his EHC plan was not being implemented unless he attended. She asked the Council to help. Ms X told the SEN officer that the transport team told her the Council would not assist with Mr Y’s commute because his EHC plan still named the private college.
32. Over the next week Ms X was in contact with the Council’s SEN Team and the Transport Team. The Council told her that considering her accident it would provide Mr Y with interim transport arrangements to allow her time to repair her car. The Council also emailed her and said it considered her post-16 transport application for Mr Y and decided he was not eligible for assistance. The Council said that in making its decision it considered that Mr Y’s current college was named in his EHC plan as parental preference, and it was not the nearest college able to meet his needs. Because of this, as per the Council’s post 16 transport policy it was Ms X’s responsibility to provide school transport to Mr Y.
33. In early January 2023 the Council contacted Ms X and told her that it will remove the provision outside of college hours named in Mr Y’s plan because the team was not able to provide it. The Council told Ms X to contact its adult social care team if she felt Mr Y still needed this provision.
34. In mid-January 2023 the Council issued Mr Y’s final amended EHC plan following the annual review it held in November 2021.
35. A few days after this the Council sent Ms X its stage one complaint response and said that:
• there were significant delays in the processing of Mr Y's annual review. His college sent the Council a Pre-Annual Review Report before the November 2021 review and did not send the full report until September 2022;
• it recognised that further steps should have been taken by the Statutory SEN Team to obtain the full report; and
• it did not meet the phase transfer timeframe to identify Mr Y's next placement. The Council said this was because the report received by Statutory SEN Team did not identify that Mr Y was leaving the private college and transitioning to a mainstream college.
36. Within a week Ms X responded to the Council and said she was not satisfied with the complaint response, and she asked the Council to consider her complaint at stage two of its complaints procedure. She said that the title of the documents suggested that he would be transferring from one college to another. She also said that because of the delay the Council did not carry out Mr Y’s 2022 annual review.
37. The Council issued its final response to Ms X’s complaint in early March 2023. It said:
• it was not responsible for the errors in review documents the private college prepared but agreed it was responsible for not communicating with the college effectively;
• it failed to include Mr Y’s views in the EHC plan it issued in January 2023 and apologised for this. The Council said that it could not explain why this happened;
• the SEN service would focus on working closer with educational settings to make sure the annual review documents it receives from them are on time and accurate; and
• the SEN service would improve the procedure it follows for pupils leaving one school setting for a different school setting.
38. Ms X was unhappy about the Council’s response and she complained to us.

Analysis

Annual reviews July 2021 and November 2021

A) Time it took the Council to complete the annual review

39. The Council’s records show there were two annual reviews of Mr Y’s EHC plan in 2021. One in July 2021 and one in November 2021. It is our understanding that the July 2021 meeting was an annual review and the November 2021 meeting was the phase transfer review.
40. Prior to March 2022 the legislation was not specific about a timeframe for when the Council had to issue a final amended EHC plan after an annual review. A high court ruling in March 2022 made clear that the Council must notify the parent or young person of the decision to amend the EHC plan and the proposed changes within four weeks of the annual review meeting. It then must issue the final amended EHC plan as soon as practicable and within a further eight weeks maximum. Therefore, the Council must send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting.
41. Mr Y’s college held annual EHC plan review meetings in July 2021 and November 2021. Within four weeks of the meetings, the Council should have issued a notification to Ms X and Mr Y with its decision about his EHC plan and the proposed changes. This did not happen until October 2022 and it was fault.
42. We understand that to send the proposed EHC plan changes to Mr Y and Ms X the Council required the report from Mr Y’s college. It did not get the report until September 2022. This is a significant delay if we consider the November 2021 annual review and even more significant if we account for the July 2021 annual review. We cannot hold the Council responsible for the college’s delay in supplying the documents, however the Council allowed Mr Y’s annual review to drift and took no action to obtain the report sooner.
43. The Council must hold an overview role of the annual reviews and phase transfer reviews as ultimately it is the body responsible for making sure the reviews are carried out correctly and are effective. This did not happen in this case, and this is fault.
44. The delay in finalising Mr Y’s annual review from 2021, be it the July or the November meeting, has contributed to the confusion about what Mr Y wanted and the support the Council needed to put in place for him.
45. The Ombudsman is aware the Council is experiencing delays in completing annual reviews. In response to enquiries on another case, the Council told us that in the academic year 2021/2022:
• it had seen a 60% increase in the number of annual reviews it had to carry out per year, from just under 2000 to over 3000. It expected that increase to continue;
• it had completed 91% of annual reviews due that year. 700 of those annual reviews resulted in an amendment to the child or young person’s EHC plan. It issued the child or young person’s amended final EHC plan within twelve weeks of the annual review meeting in just 18% of the 700 cases;
• it had increased its budget for annual reviews by 40% to cope with demand and hoped increased staffing would help; and
• it had given schools further advice on what it expected of them, to ensure they sent paperwork promptly after the annual review meeting.
46. We made recommendations to the Council on that case to improve its timeliness in carrying out annual reviews and in how it responds to complaints about delays.
47. I reviewed ten of the Ombudsman’s recent investigations against the Council which relate to annual reviews, where we have an amended EHC plan on record. In nine of the cases the Council issued an amended EHC plan which stated the same as Mr Y’s plan, that the next review was due “within one year from issue of Final Plan”. Only one stated the next review was due within one year of the date of the annual review.
48. The Council also told us that since Ms X’s complaint the SEN Team developed a reporting system that allowed the Council to track overdue annual reviews. Additionally, the Council now sends letters to educational settings each term with a list of annual reviews that are overdue.
49. The Council has already made several service improvements which we consider appropriately address the fault in annual review delays. Because of this, we did not make any further service improvements recommendations relating to the annual review delays in this decision statement.
50. However, we have made a service improvement recommendation the Council should put in place to ensure it can meet its statutory duties after an annual review report when the educational provider delays sending the post annual review report to the Council.

B) Mr Y’s transition between schools

51. Ms X said the Council failed to prepare Mr Y for his transition and she had to do it herself with no outside help.
52. The Council agreed that it failed in its duties to prepare Mr Y for his transition, but this was because the report his private college submitted in September 2022 said that he was continuing his education and did not mention change of an educational setting.
53. The Council referred to the document dated July 2021. It did say that Mr Y would continue for another year at the private college. This meant that he would continue his education there until July 2022. This is further supported by the same report when it stated that Mr Y’s placement “…has been agreed until July 2022”.
54. In February 2022 Mr Y’s private college submitted an update to the Council and spoke about Mr Y’s wishes to attend a mainstream college.
55. We consider the Council made an error, most likely because of the drift in Mr Y’s EHC plan annual review, when reading the report and assumed Mr Y would continue at the private college until summer 2023. This was despite the update from Mr Y’s private college and despite the fact the Council agreed Mr Y’s placement at the private college until July 2022. This is fault.
56. This further added to the avoidable stress Ms X and Mr Y experienced. It also meant Ms X had to support Mr Y in his transition on her own.
57. Additionally, it meant the Council did not have conversations with Ms X about the transport implications applying for a college out of the Council’s area would have for her and Mr Y.
58. When the Council realised that Mr Y was attending a different college it told Ms X that it could not name it in Mr Y’s EHC plan without a formal consultation. This is true, however we consider this could have been avoided had the Council kept appropriate oversight of annual reviews of Mr Y’s EHC plan in 2021.
59. Furthermore, the Council told Ms X that Mr Y would have to change college to the one in the Council’s area. She told us this caused her and Mr Y considerable distress.
60. The EHC plan the Council issued in January 2023 named two colleges available to Mr Y. The one he started attending in September 2022 and a college in the Council’s area. It is up to Mr Y and Ms X to decide which one he decides to attend and complete his course at.

C) Preparation for adulthood

61. Under the Care Act 2014 councils must carry out a social care needs transition assessment for the young person when it becomes apparent it is likely they will need care and support after they turn 18. For young people with an EHC Plan this planning should take place as part of the annual review process.
62. We have seen no evidence to suggest this happened during Mr Y’s 2021 annual reviews, and there was no 2022 annual review of his EHC plan. This is fault.
63. The Code says the local authority should ensure the transition to adult care and support is “well planned [and] is integrated with the annual reviews of the EHC plans”.
64. This also did not happen. Instead, the Council emailed Ms X and told her to contact the adult social care services if she felt Mr Y needed support. This is fault.
65. We cannot say what would have happened had the Council acted without fault and assessed Mr Y’s social care needs and collaborated with its adult services as part of his annual review process. However, we consider this caused Ms X and Mr Y added avoidable uncertainty.

Annual review in 2022

66. Because of the delay in finalising Mr Y’s 2021 annual reviews, the Council failed to hold an annual review of Mr Y’s EHC plan in 2022. This is fault.
67. Ms X told us that she asked the Council to consider a request for direct payments, but the Council ignored her request. This is something that we would expect to form part of annual review conversations but because the Council did not hold an annual review of Mr Y’s EHC plan in 2022 this did not happen. This further adds to Ms X’s injustice resulting from a lack of appropriate annual review in 2022.
68. The Council also issued the January 2023 EHC plan with the wrong review date. It incorrectly stated the review was due within one year of the final plan, when it should have stated the review is due within one year of the date of the annual review. This was fault and caused Ms X frustration.
69. Our review of recent Ombudsman’s investigations shows the Council has repeated that mistake recently, so we consider it was not a one-off error. We have recently made a recommendation to prevent the fault occurring again, and for this reason we will not make another recommendation in this decision.

School transport

70. Ms X also said that Mr Y missed three weeks of education when the Council refused to provide transport for him.
71. We have seen a decision the Council sent to Ms X where it told her that it considered her application for transport and Mr Y was not eligible for support.
72. We consider the Council was not at fault for how it decided Ms X’s application for school transport for Mr Y.
73. It took account of its transport policy and when Ms X’s circumstances changed after a car accident it agreed to support her until she could provide the transport for Mr Y again.
74. At the end of this year Mr Y will turn 19 and Ms X can apply for school transport for him as an adult learner.

Include Mr Y’s views in his EHC plan it issued in January 2023

75. The Council accepted that the final amended EHC plan it issued to Mr Y in January 2023 did not include his views. This is fault.
76. This caused Ms X avoidable frustration and uncertainty about whether the Council took Mr Y’s views into consideration before issuing the final amended EHC plan.
77. It has also caused Mr Y avoidable distress. Ms X told us she noticed this affected Mr Y’s mental health as he felt his view did not matter and he was not being taken seriously by the Council.

Communications with the SEN Team

78. Ms X said the Council failed to keep her informed about the progress of her case.
79. We have seen there have been times when Ms X’s calls and emails went unanswered. We consider that on this occasion the Council’s communications with Ms X following Mr Y’s annual reviews in 2021 fell below the expected standard and this is fault.
80. This has further contributed to the stress Ms X and, by extension Mr Y, experienced when they were waiting for his amended EHC plan following the 2021 annual reviews.

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Agreed action

81. Within one month of my final decision the Council will:

• pay Ms X £600 in recognition of the avoidable distress caused by the Council’s failure to complete the 2021 annual reviews, poor communication with her about the progress of the case and the lack of overview of the annual review process;
• pay Mr Y £500 in recognition of the avoidable distress he experienced as a result of the Council’s lack of support in transitioning into a new college and lack of 2022 EHC plan review;
• the Council should consider an early annual EHC review to ensure it is satisfied the EHC plan it issued in January 2023 is an accurate reflection of Mr Y’s needs and the provision is in place. If it decides not to it should be able to fully explain its decision to Ms X and Mr Y; and
• if the Council decides to carry out an early EHC plan review it should ensure a social care assessment of Mr Y’s needs forms part of the review.

82. Within three months of the final decision the Council will develop and incorporate a way of monitoring outstanding and/or delayed post annual review reports from the educational providers. This should enable the Council to act promptly and chase the school providers for the annual review reports and ensure the Council meets its own statutory duties with regards to issuing final amended EHC plans following an annual review.
83. The Council should provide us with evidence it has complied with the above actions.

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Final decision

84. My investigation is complete and the Council accepted my recommendations. The Council was at fault and it caused Ms X and Mr Y injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman