Summary: Ms X complained the Council failed to follow proper procedure and did not update her son’s EHCP for over two years. She complains it then issued an amended final plan in early 2023 using out of date and inaccurate information and naming an inappropriate school. The Council’s failure to follow the correct procedure in carrying out annual reviews is fault. This fault has caused Ms X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complained the Council failed to follow proper procedure and did not update her son’s EHCP for over two years. It then issued an amended final plan in early 2023 using out of date and inaccurate information and naming an inappropriate school. Although the errors have now been rectified and an appropriate school named, Ms X complains she had her son have experienced months of unnecessary upset and stress.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter (Local Government Act 1974, section 26(6)(a), 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. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms X
• Ms 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

Education, Health and Care plans

7. 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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

Annual reviews

8. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the plan. Councils must review the plan every 12 months as a minimum. They must then notify the child’s parent within four weeks of the meeting whether they intend to keep the EHC plan as it is, amend, or cease to maintain the plan.
9. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
10. 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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
11. 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.

Phase reviews

12. 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. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school

What happened here

13. The Council finalised Ms X’s son, Y’s initial EHC plan July 2020. Although there were then annual review meetings in June 2021 and March 2022, Ms X says the Council did not inform her of any decisions.
14. Y was due to transfer from primary to secondary school in September 2023. In January 2023 the Council sent Ms X an amendment notice naming School 1, a mainstream school, for the phase transfer. The Council then issued a finalised plan in February 2023.
15. On receiving the final plan, Ms X made a formal complaint to the Council. She noted that the amended final plan referred to an earlier plan finalised in October 2022. Ms X had not received an amendment notice or final EHC plan in October 2022. She complained the Council had not informed her of any decisions about Y’s EHC plan between July 2020 and January 2023.
16. Ms X also complained she had questioned changes to the details of Y’s academic levels and needs which were now inaccurate and had been told they had been made in October 2022. As the caseworker no longer worked for the Council it could not provide any further information about the changes. Ms X complained the Council’s failure to follow the proper review process had frustrated her right of appeal.
17. She did not consider the EHC plan prepared for Y’s phase transfer was reflective of his needs and was concerned it named a large mainstream school which Y would be unable to access. Ms X asserted this caused a significant injustice to Y and the Council’s failings meant she had not had the opportunity to remedy this.
18. The Council responded to Ms X’s complaint and accepted there had been errors on the Council’s part. It noted that while an amendment notice was completed in October 2022, the Council had not sent this to Ms X. The October 2022 amendment notice specified the proposed provision to be removed. A new case worker assumed Ms X had received the October 2022 notice and issued the January 2023 amendment notice with the provision removed and made the other amendments proposed in the October 2022 notice. The Council apologised Ms X did not receive the October 2022 amendment notice and for any confusion this caused.
19. The Council also accepted the January 2023 amendment notice should not have stated Y was writing ‘at’ age related expectations. It apologised for this error and confirmed it would be noted at the next annual review.
20. However, the Council did not consider Ms X’s appeal rights had been frustrated. As a final plan was issued in February 2023 Ms X’s appeal rights remained open to her. The Council noted Ms X had now exercised this right of appeal in relation to the named school.
21. Ms X was not satisfied with the Council’s response and asked for her complaint to be considered further. She maintained the Council had frustrated her right of appeal following the review in March 2022 as it had taken 11 months to finalise the amended EHC plan. This delay meant the EHC plan was almost 12 months out of date when the Council used it to name/ consult an appropriate secondary school.
22. In addition Ms X did not consider it acceptable to amend the errors in the ECH plan at the next annual review. Ms X was concerned the EHC plan states Y could write at age related expectations when he could barely write and had a scribe for most of his writing. Ms X asserted this was a significant change which would impact significantly on the level of provision Y required in a secondary school setting.
23. The Council reviewed Ms X’s complaint and acknowledged her appeal rights were delayed in terms of the content of the plan, as the Council should have issued an amendment notice in October 2022. However, it did not accept there was a delay in terms of Ms X being able to appeal the named school. The Council said all parents of phase transfer pupils were notified in February 2023 in line with the timescales laid out by the SEND Code of Practice.
24. In terms of rectifying the errors, the Council considered this could be done using the working document process as part of the appeal process. It also noted the annual review should take place before Y started secondary school and that the named school was expected to attend. This would be an opportunity to put strategies/ plans in place and to amend any inaccuracies.
25. The Council also confirmed the decision to name School 1 was made taking into account all of the available evidence and that the school and panel had access to correct information.
26. The Council did not consider it appropriate to investigate Ms X’s concerns further but acknowledged it had made errors. It asked Ms X to confirm what she would like the Council to do to resolve the complaint.
27. Ms X asked the Council to:
• correct the misinformation in Y’s EHC plan immediately and add in missing information so the plan gave a true reflection of Y.
• send the amended EHC plan out for consultation to specialist schools and consider naming a specialist school place for September 2023
• take ownership for the errors and the impact they caused
• confirm what changes were being made to the service to prevent constant errors by the SEN casework team affecting children.
28. In late May 2023 Ms X asked the Ombudsman to investigate her complaint as she had not received a response from the Council. Ms X asserted that as Y’s EHC plan was incorrect due to the Council’s errors they should not have to wait and use the normal channel. She said having to wait for the next annual review or tribunal hearing was causing Y an injustice. He was experiencing significant distress knowing he had a secondary school named for September 2023 that he could not access.
29. We contacted the Council who then responded to Ms X’s requested outcomes in early June 2023. It apologised to Ms X for the length of time taken to respond. The Council reiterated its view that the erroneous statement that Y was working ‘at’ age related expectations could be rectified using the working document process. It did not consider this error had caused an injustice as School 1 and the panel had access to correct information. The Council considered Y could access School 1, who still considered they could offer him a place.
30. The Council confirmed it would work with Ms X through the Tribunal process as this was the correct route to redress issues about the content of an EHC plan / the named school. The Council also noted it had recently issued an amendment notice. It confirmed that although the SEN service had agreed to amend the EHC plan, it had not agreed to re-consultation. It said the decision whether to name a specialist school would be made at the Tribunal hearing.
31. Although the SEN service did not agree that ‘constant errors’ were being made, it did recognise there was room for improvement in the service provided, due to capacity issues. It confirmed the Council was recruiting additional casework staff and would use agency staff to support with the workload until they were in place. The Council also confirmed it was redesigning the structure of the SEN service to improve the support it provides and the flow of casework.
32. Ms X remains unhappy with the Council’s actions and responses. Since complaining to the Ombudsman the SEND Tribunal has considered Ms X’s appeal. In preparation for the Tribunal hearing Ms X and the Council agreed amendments Y’s EHC plan. The Council also agreed to name a specialist school, School 2, from September 2023. They asked the Tribunal to issue a consent order approving the final agreed working document. The Tribunal agreed the working document accurately reflected Y’s needs and the provision required to meet them. It was also satisfied School 2 was a suitable school and granted the consent order.
33. Ms X asserts that the stress and anxiety she and Y experienced in the months leading up to the Tribunal hearing could have been avoided if the Council had followed proper process in the annual reviews and taken timely action to redress its errors.

Analysis

34. Legislation and Government guidance set out a clear procedure and timeframe for carrying out an annual review of an EHC plan. The documentation provided shows the Council did not follow this procedure or meet this timeframe. There is no evidence the Council contacted Ms X within four weeks of the annual review in March 2022 to confirm it would amend the plan. Having decided to amend the plan the Council should have started this process without delay however the Council did not seek to amend Y’s plan until October 2022, seven months after the review.
35. In addition, the Council accepts it did not send Ms X an amendment notice in October 2022. Ms X was therefore unaware of the proposed amendments and did not have the opportunity to comment. When the Council issued a further amendment notice in January 2023 the full extent of the proposed amendments were not clearly identified, as provision had already been removed and amendments made based on the October 2022 notice.
36. The Council’s failure to follow the correct procedure and meet the required timeframes is fault.
37. Having identified fault, I must consider whether this had caused Ms X and Y an injustice. The errors and delay in amending Y’s EHC plan following the annual review in March 2022 caused Ms X distress and anxiety and put her to unnecessary time and trouble. It also delayed her ability to exercise her right of appeal to the SEND tribunal in relation to the content of the plan.
38. The Council has apologised for any confusion caused by the failure to send Ms X the amendment notice in October 2022. This is to be welcomed, but I do not consider an apology sufficient to remedy the injustice this has caused. I consider the Council should also make a symbolic payment to recognise the distress Ms X has experienced.
39. It is possible that but for the errors the Council would still have named School 1 in Y’s EHC plan in February 2023 and Ms X would have needed to appeal to the SEND Tribunal. But it is also possible the Council would have named a different placement.
40. The Council has confirmed that following the annual review in March 2022, Ms requested School 3, a specialist school, as a secondary school placement for Y. The Council did not consult with School 3 or any schools at that stage. In response to our enquiries, the Council has confirmed it consulted a mainstream school in August 2022, School 1 in late April 2023, School 3 in May 2023, and School 2 in June 2023. The records provided do not suggest it had consulted School 1 before naming it in Y’s EHC plan in February 2023. I also note that when the Council did consult School 1 it responded to say it did not feel the school was a suitable placement for Y or that it would be able to meet his needs.
41. Ms X has exercised her right of appeal to the SEND Tribunal and has confirmed she is now happy with the content of Y’s EHC plan and with the placement at School 2.
42. The Council has taken action to improve the service it provides by recruiting additional casework staff and redesigning the structure of the SEN service. This is to be welcomed.

Agreed action

43. The Council has agreed to apologise to Ms X and pay her £200 to recognise the distress and anxiety she experienced as a result of the Council’s failure to follow the correct procedure for carrying out annual reviews.
44. The Council has also agreed to review its process and procedures to ensure it has an effective system in place to ensure
• decision letters are sent out within four weeks of the annual review process and
• that where the plan is to be amended the process starts without delay.
45. The Council should take this action within one month of the final decision and provide us with evidence it has complied with the above actions.

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Final decision

46. The Council’s failure to follow the correct procedure in carrying out annual reviews and to meet the required timeframes is fault. This fault has caused Ms X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman