Summary: Mrs X complained about the way the Council handled the review of her child’s education, health and care plan and her complaint. She said this delayed her right to appeal the plan, caused unnecessary distress and frustration, and cost her time and trouble. We find the Council at fault, and this caused injustice. The Council has made a payment to Mrs X, apologised, and agreed to add a note to Mrs X’s file. The Council has also agreed to arrange catch-up sessions for provision which was missed as a consequence of a delay in triggering Mrs X’s right of appeal.

The complaint

1. Mrs X complained about the way the Council handled the review of her child’s education, health and care (EHC) plan. Specifically, she complained that the Council:
1. failed to complete a review of the EHC plan by the statutory date set out for transitions into secondary education;
2. failed to send her a decision notice or a draft EHC plan after the annual review;
3. failed to issue the final EHC plan after the annual review within statutory timeframes; and,
4. refused to deal with her complaint about the matter.
2. Mrs X said this delayed her right to appeal the EHC plan. She also said it caused unnecessary distress and frustration, and cost her time and trouble.

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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 significant injustice, or that could cause injustice to others in the future 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

6. Mrs X has asked for the following outcomes. She wants:
• an apology from certain Council officers who she contacted but did not respond to her; and,
• to be able to communicate directly with named officers.
7. We are not able to achieve these outcomes. We do not ask individual officers to apologise to complainants unless there are exceptional circumstances. I do not find this is the case here.
8. The Council is managing Mrs X’s communication under its vexatious complainants policy. Mrs X told me she wants to be able to communicate directly with named officers, which she is currently unable to do. She wants the Council to make a reasonable adjustment and allow her to do this.
9. If Mrs X is unhappy with the way the Council is managing her communication, and feels the Council has failed to make a reasonable adjustment, she can make a fresh complaint to the Council. She can then bring the complaint to the Ombudsman if she remains dissatisfied.

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How I considered this complaint

10. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement.
11. I considered the relevant legislation, caselaw, statutory guidance, and policies, set out below. I also considered legal advice and the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Annual reviews of education, health and care plans

12. A council must review an education, health and care (EHC) plan within 12 months from the date the plan was made (meaning the date the plan was finalised). It must then review the plan annually, within 12 months of any previous review, as a minimum.
13. The council must decide within four weeks of a review meeting whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan. The council must notify the child’s parent about its decision within four weeks of the review meeting.
14. If, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as quickly as possible, and within 12 weeks of the review meeting.
15. An EHC plan must be reviewed and amended in sufficient time before a child or young person moves between key phases of education. Transfers between key phases of education includes primary or middle school to secondary education.
16. The review and any amendments to the plan must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

The Council’s complaints procedure

17. The Council’s complaints procedure says it will not investigate certain complaints. It says:

“Discretion in deciding whether to consider complaints where to do so would prejudice any of the following investigations will be outside of scope. In these cases, the Customer Relations Team should write to advise the complainant that their complaint cannot be considered …

Court proceedings;

Tribunals;

Disciplinary proceedings; or

Criminal proceedings.”

What happened

18. Mrs X’s child, B, has an education, health and care (EHC) plan. In August 2022, the Council issued a final EHC plan after a tribunal consent order about the plan. This plan named the school B was going to attend from September 2022, and which the Council planned B would attend into their secondary education, which started in September 2023.
19. On 15 February 2023, Mrs X sent the Council an email saying it had not completed a review of B’s EHC plan by that date. She said the Council should have reviewed the plan because B was transferring into secondary education in September.
20. The following day, the Council sent Mrs X a letter. The Council said it was appropriate for B to remain at the school named in the August 2022 EHC plan. It said there would be an annual review of B’s EHC plan in March. It apologised for the delay sending this decision letter.
21. The annual review meeting was held in May. At the end of May, the Council emailed a decision letter and a draft EHC plan to itself.
22. A few weeks later, Mrs X told the Council it had not given her its decision after the annual review.
23. The Council told Mrs X it had sent her its decision letter and draft EHC plan at the end of May. Mrs X replied that she had not received this email. The Council said it would forward the email to her.
24. In June, Mrs X made a formal complaint. She said the Council still had not sent her the decision letter or the draft EHC plan. On the same day, the Council emailed the draft EHC plan and decision letter to itself again.
25. The Council said it had responded to Mrs X’s complaint so would not deal with the matter as a formal complaint. Mrs X said she still had not received the documents.
26. Mrs X brought her complaint to the Ombudsman.
27. At the end of June, the Council sent Mrs X the emails it had sent her in June. But it did not attach the decision letter or draft EHC plan. The Council said none of the emails it sent her had bounced back, which suggested they were received by Mrs X’s inbox or junk folder. Mrs X replied that she still had not received the documents.
28. Shortly after, the Council emailed Mrs X the decision letter and the draft EHC plan. It apologised for not sending the documents to her in the first instance. The Council said the officer did not know how to use the specific mailbox it was using to manage Mrs X’s correspondence. The Council acknowledged it had not sent these documents before and that they were late.
29. The Council further apologised that Mrs X had had to follow up so many times to get this information from the Council. It explained it was a result of “human error”.
30. Mrs X said she could not access the documents the way they had been sent to her. The Council sent the documents in an accessible format in early July.
31. The Council issued the final amended EHC plan at the end of July.

Analysis

Education, health and care plan review

32. Mrs X complained the Council failed to complete a review of the EHC plan by the statutory date set out for transitions into secondary education (part a of the complaint).
33. Mrs X’s child, B, was transitioning into secondary education in September 2023. In August 2022, the Council issued a final EHC plan after a tribunal consent order. This plan named the school B was going to attend from September 2022 and which the Council planned B would attend for their secondary education, which started in September 2023.
34. The Council said it felt it was not necessary to amend B’s EHC plan before their transfer to secondary education. This was because the phase transfer had already been considered as part of Mrs X’s appeal, and the plan issued in August 2022 reflected the school B would be attending for secondary education.
35. There is relevant caselaw here: M, R (on the application of) v East Sussex County Council [2009] EWHC 1651 (Admin). This sets out that the courts have decided it is the phase transfer which triggers the duty to review EHC plans by 15 February, not a change in educational placement. Therefore, the Council’s duty to review B’s EHC plan by 15 February was triggered when B came within 12 months of transferring from primary to secondary, irrespective of the fact the Council had already identified a secondary school placement. The August 2022 EHC plan was not issued within 12 months of B transferring to secondary education.
36. The Council should have reviewed B’s EHC plan by 15 February 2023 for B’s transfer to secondary education in September 2023. It failed to do so. This is fault. This caused Mrs X injustice in that it caused uncertainty and delayed her right to appeal the plan.
37. Mrs X said that, even if the Council did not have a statutory duty to review B’s EHC plan by 15 February 2023, it should have reviewed the plan by March 2023. This is because the last annual review was held in March 2022. But it actually held the annual review in May 2023.
38. I find the Council’s fault for not reviewing B’s EHC plan by 15 February supersedes this point.

Decision notice

39. Mrs X complained the Council failed to send her a decision notice or a draft EHC plan after the annual review (part b of the complaint).
40. The annual review meeting was held in May. The Council emailed itself its decision letter and draft EHC plan in May and June. In late-June, the Council re-sent the emails it had sent Mrs X earlier but did not send the decision letter or draft EHC plan. Mrs X received an accessible copy of the decision letter and draft EHC plan at the beginning of July.
41. The Council had four weeks from the date of the review to send Mrs X its decision and draft EHC plan. This would have been early June. Mrs X did not receive them until early July. This delay of one month is fault.
42. The Council said the officer who sent the emails did not know how to use the specific mailbox the Council was using to manage Mrs X’s correspondence. This is fault.
43. These faults caused Mrs X unnecessary distress and frustration. The Council has apologised for this injustice.

Delay issuing the final plan

44. Mrs X complained the Council failed to issue the final EHC plan after the annual review within statutory timeframes (part c of the complaint).
45. As I have found above, the Council failed to complete the review of B’s EHC plan by 15 February. The Council should have completed the review and any amendments to B’s EHC plan by 15 February.
46. The Council issued B’s final EHC plan at the end of July, five months after it should have issued the plan (in February), and is therefore fault. This caused injustice because Mrs X did not get a right to appeal the EHC plan until July.
47. Mrs X says B missed out on certain provision because of the delay issuing this EHC plan.
48. The Council has confirmed the EHC plan issued in July included some adjustments to B's provision – specifically that B should receive, each week, one 45-minute session of speech and language therapy (SALT), one 45-minute session of occupational therapy (OT), and a minimum of two sessions of a touch-typing programme. Had the EHC plan been issued by 15 February, as it should have been, these sessions would have started sooner, and so I am satisfied B wrongly missed out on some of the provision because of the delay in reviewing and reissuing the EHC plan.
49. The Council has now acknowledged this, and has agreed to implement catch-up sessions for B to make up for this lost provision. We are satisfied this represents a suitable, pragmatic remedy for this injustice.

Complaint handling

50. Mrs X complained the Council refused to deal with her complaint (part d of the complaint).
51. Mrs X complained to the Council about several matters, including the lack of decision letter and draft EHC plan, and that there was no transition review of B’s EHC plan by February 15. In June, she asked the Council five times to consider her point about the transition review, as well as other points. Each time, the Council responded to some points Mrs X raised, but did not respond to the part about the review.
52. The Council told Mrs X that an officer “has responded to you therefore we will not be dealing with this matter as a formal complaint”.
53. After this, Mrs X asked the Council again to consider her complaint about the review, as well as asking other questions. The Council responded to the other questions but not the part of her complaint about the review.
54. The Council said part of Mrs X’s appeal of the EHC plan was that she wanted the Council to name a certain school for B. It said the named school is a “through” school where there is no transition between primary and secondary education. The Council said it agreed to name this school, so Mrs X knew this was a placement for B going into their secondary education, and therefore there would be no need for a transition or a transition review.
55. The Council said it did not answer this part of Mrs X’s complaint because it believed Mrs X knew there would be no transition review. This was because there would be no transition between primary and secondary once B started at the school.
56. I have seen an email Mrs X sent the Council in July 2022 about her appeal. In this email, Mrs X acknowledged the Council would name this school “as the secondary placement for [B] and that the necessary review will be completed when appropriate”.
57. I find the Council failed to respond to this part of Mrs X’s complaint. While it would have been best practice for the Council to have responded to this part of Mrs X’s complaint, on balance, I do not consider this is significant enough to constitute fault.

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Completed remedies and newly agreed action

58. We issued a previous decision on this complaint, at which point the Council had agreed to:

• apologise to Mrs X for its failure to review B’s EHC plan by 15 February 2023; and
• add a note to Mrs X’s casefile, to ensure staff understood the communication plan.

59. Following our decision, the Council provided evidence to show it had satisfactorily implemented this remedy. Separately, we also noted in our decision the Council had already made a payment of £100 to Mrs X in reflection of her distress and frustration
60. The Council has now agreed, within four weeks of the date of my final decision, to make arrangements to begin implementing the catch-up provision for B, as described at paragraph 48. The Council should provide evidence to show it has taken satisfactory action in response to this recommendation.

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Final decision

61. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman