Summary: Ms X complained the Council delayed carrying out her daughter, Child Y’s Education Health and Care (EHC) plan annual review in line with the statutory timescales and then delayed issuing Child Y with the amended EHC plan following the annual review. The Council was at fault for delaying Child Y’s annual review and not explaining the annual review decision, which caused Ms X distress and uncertainty and delayed her right of appeal. The Council will make a payment to Ms X to acknowledge the injustice this caused her. Ms X had a right of appeal to the tribunal over Child Y’s provision.

The complaint

1. Ms X complained the Council delayed carrying out her daughter, Child Y’s EHC plan annual review in line with the statutory timescale and then delayed issuing Child Y her EHC plan following the annual review. Ms X also complained the Council failed to provide the necessary funding for Child Y in the Summer term 2022 and she had to source alternative provision for physical education.
2. Ms X further complained the Council had failed to provide reasonable adjustments and has subjected Child Y to indirect disability discrimination by refusing to include certain provision in the EHC plan.
3. This caused distress, health implications, time and trouble, and a financial burden.

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What I have not investigated

4. The Council has now issued Child Y’s amended final EHC plan. Ms X is unhappy with the content of this plan for physical education provision for Child Y. The Ombudsman cannot direct changes to Section F of the EHC plan. Only the SEND Tribunal can do this. The Council issuing the amended final plan provided Ms X with the right of appeal to the SEND Tribunal. Ms X remained dissatisfied with the content of Child Y’s EHC plan and has appealed to the Tribunal.
5. I have not investigated Ms X’s claims of indirect discrimination. This is because the matter is around what provision the Council has included in Section F of Child Y’s EHC plan. The SEND tribunal can consider both the provision aspect and any claims of discrimination. Ms X has already appealed to the Tribunal therefore I have not investigated this.
6. A resource panel has already considered Child Y did not receive funding in the summer term of 2022 and did not agree Child Y needed this funding for one to one support. If needed Ms X can raise this issue again at Child Y’s next annual review.

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The Ombudsman’s role and powers

7. 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)
8. 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.
9. 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)
10. 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

11. I considered:
• the information Ms X provided about her complaint and spoke to her on the telephone;
• information the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
12. Ms X and the Council had an opportunity to comment on the draft decision. We considered comments received before making a final decision.

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What I found

Relevant law and guidance

13. A child with special educational needs (SEN) 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 includes the special educational provision needed by the child or the young person. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
15. 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.

The Code of Practice

16. The Code says councils should review the plan at least annually. The review meeting will usually be led by the school, which should send the council a report of the meeting within two weeks.
17. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it. It must tell the child’s parents and school its decision (s20 (10) Special Educational Needs and Disability Regulations 2014)
18. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2) (c) SEND Regulations 2014)
19. 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 8 weeks of the date it sent the EHC plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
20. Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
21. Where a parent or young person disagrees with the contents of the EHC plan there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
22. Parents do not have a right of appeal until a final EHC plan (or decision not to issue a plan) is made and a decision letter issued by the Council.

What happened

23. Child Y lives with their family and attends a mainstream primary school, School 1. Child Y has some health conditions and is disabled which means Child Y cannot do certain physical activities.
24. Child Y first had an EHC plan in December 2020. An annual review of Child Y’s EHC plan took place in mid-March 2022 by School 1. This was attended by three members of staff from School 1, the Council, Child Y’s mother Ms X and Child Y’s father. The annual review record noted Child Y’s school placement remained suitable, it did not recommend Child Y’s EHC plan was amended but said a further reassessment should take place because of a new ADHD diagnosis. Ms X also asked for an amendment to Section F to add one to one support.
25. In early July 2022 the Council sent Ms X a decision letter following the annual review. At the same time, it sent Ms X Child Y’s draft amended EHC plan.
26. Two days later Ms X made comments on the amended draft EHC plan. She said she wanted one to one support for Child Y, alternative provision and a personal budget. Ms X said due to Child Y’s health conditions and disability she cannot do certain physical activities and wanted swimming lessons included in the EHC plan.
27. Four days later the Council wrote to Ms X and apologised for the delay in telling her the Council decision following the annual review.
28. In mid-July 2022 a resource panel decided:
• it did not agree Child Y needed one to one support;
• it did not agree education otherwise than at school (EOTAS) was needed because Child Y could access all education at School 1;
• it did not agree a reassessment of Child Y’s special educational needs was needed; and
• it did not agree to a personal budget.
29. In late July 2022 the Council sent Ms X Child Y’s final amended EHC plan.
30. In mid-August 2022 Ms X complained to the Council. She said the Council had breached the statutory timeframes in reviewing Child Y’s EHC plan and failed to fund the provision set out in Section F of Child Y’s EHC plan. Ms X also said the Council caused indirect disability discrimination under the Equality Act 2010 against Child Y by refusing to make reasonable adjustments that would allow Child Y to access physical education, specifically swimming lessons.
31. In early September 2022 the Council responded and said it sincerely apologised Child Y’s annual review meeting did not take place within the statutory timescales. It also explained the latest position on Child Y’s funding and explained the result of the resource panel.
32. Mrs X remained unhappy. In mid-September 2022 the Council sent its final complaint response. It said it was unaware on what basis Ms X was making the alleged discrimination claim. The Council also said it was fully funding Child Y’s EHC plan based on a full-time school placement and there was no evidence to support the funding of educational provision outside of School 1. The Council said Ms X could complain to us if she remained unhappy, which she did.

My findings

33. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
34. The Council accepted delay with Child Y’s annual review. The annual review should have taken place in mid-December 2021 and it took place in mid-March 2022. This was a delay of three months and is fault. Within four weeks of the review meeting the Council should have told Ms X its decision to maintain, amend or discontinue Child Y’s EHC plan. The Council sent the decision letter to Ms X in early July 2022. This was a delay of three months and is fault. These delays caused Ms X distress and uncertainty. The Council has already apologised to Ms X for the delays which partially remedies the injustice caused. The delays also meant Ms X’s appeal rights were delayed, I have recommended a symbolic payment for the injustice caused. There is no evidence the delay caused Child Y an injustice and the Council’s stage 2 complaint response shows School 1 was already providing all the provision in Child Y’s final amended EHC plan.
35. The Ombudsman has recently made recommendations to this Council on a similar case which is ongoing. It has been asked to remind staff of the importance of adhering to the statutory guidelines and timescales in completing EHC plan annual reviews and explain to the Ombudsman how the Council will monitor performance against timescales. On this basis, no further recommendations were needed.
36. In early July 2022 the Council sent Ms X, Child Y’s draft amended EHC plan. Two days later Ms X made comments on the draft EHC plan. A panel considered these comments in mid July 2022 and Child Y’s final EHC plan was issued in late July 2022. There was no delay between the decision letter which Ms X received in early July 2022 and the final amended EHC plan which was issued in late July 2022. This was not fault.

Agreed Action

37. Within one month of the final decision the Council will pay Ms X £100 for the distress and uncertainty caused by the annual review delays.

Final decision

38. I have completed my investigation finding fault causing personal injustice. The Council has already apologised for the delays which partially remedied the injustice. The Council has also agreed to take action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman