Summary: Mrs X complained about how the Council failed to properly review her daughter’s education health and care plan. There was fault in how the Council failed to properly oversee the annual review process for Y’s plan and how it recorded her complaint. This caused Mrs X avoidable confusion and frustration. The Council agreed to send Mrs X a copy of its decision about its last review, apologise and pay her a financial remedy. It also agreed to issue reminders to its staff and review how it asks schools to complete annual reviews on its behalf.

The complaint

1. Mrs X complains the Council failed to review her daughter, Y’s, Education Health and Care plan within 12 months of the last annual review in March 2022 and has not made a decision about the review it carried out in July 2023.
2. As a result, Mrs X says she has not been able to properly prepare for Y’s move to post-16 education and both she and Y have been caused avoidable uncertainty and distress.
3. She wants the Council to make a decision about the July 2023 review, make changes to Y’s EHC plan so she can apply for college places and to properly recognise the impact of the delays.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.
9. 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 found

Education health and care plans

10. 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.
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’).
12. Councils must review EHC plans at least every 12 months (Section 44, Children and Families Act 2014; SEN Code paragraph 9.166).
13. For most types of school, councils can require the child’s school to arrange and hold the meeting to review an EHC plan on its behalf. However, the Council is still responsible for ensuring the meeting takes place. (Regulation 20, Special Educational Needs and Disability Regulations 2014; SEN Code paragraph 9.173).
14. Annual reviews must focus on the child’s progress towards achieving the outcomes from their EHC plan and must consider whether those outcomes and supporting targets are still appropriate. (Regulation 20(5), Special Educational Needs and Disability Regulations 2014; SEN Code paragraph 9.166).
15. Reviews should also:
• gather and consider information for use by the education provider to support the child’s progress and their access to learning;
• review the special education provision made for the child and ensure it is effective;
• review any health and social care provision made for the child and that it is still effective;
• consider whether the EHC plan is still appropriate in light of the child’s progress during the last year, taking into account any changed circumstances, and whether any changed are required to the plan;
• review any targets set by the education provider;
• set new targets for the coming year and, if appropriate, agree any new outcomes; and
• where a child or young person is in year 9 or later, consider what provision is needed to prepare them for adulthood and independent living. (Regulation 20, Special Educational Needs and Disability Regulations 2014; SEN Code paragraph 9.167)
16. The person arranging the meeting must invite, and seek up-to-date information and advice from:
• the child’s parents;
• a representative of the child’s school;
• a council SEN officer;
• a health service officer; and
• a council social care officer.
17. The updated advice must be shared with those attending at least two weeks before the date of the meeting. (Regulation 20(4), Special Educational Needs and Disability Regulations 2014; SEN Code paragraph 9.176)
18. The person arranging the meeting must prepare and sent a report of the meeting to everyone invited within two weeks of the meeting. The report must set out any recommendations for changes to the plan and should refer to any differences of opinion between the school and others attending the meeting. (Regulation 20(9), Special Educational Needs and Disability Regulations 2014; SEN Code paragraph 9.176)
19. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
20. 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, or with the decision not to amend a plan. The right of appeal is only engaged when a decision or final amended plan is issued.

Council’s complaint process

21. The Council has a two stage complaints procedure for most types of complaint:
• Stage 1 – an acknowledgement within five working days and a response from a senior manager from the service concerned within 20 working days.
• Stage 2 – a response from an independent senior officer, on behalf of the Chief Executive, within 28 days.

What happened

22. Mrs X’s daughter, Y, has special educational needs and has had an Education Health and Care (EHC) plan from the Council since 2020.
23. Following an annual review of Y’s EHC plan in early 2022, the Council issued an amended plan which said Y would attend an independent special school from September 2022.
24. In early December 2022, Y’s school held what it described as a “post-admission review”. This was supported by a report from the school’s clinical team which considered Y’s progress against the outcomes in her EHC plan and also her academic progress in the subjects she was studying.
25. It appears that, at the time, the Council considered this to be an annual review of Y’s EHC plan. However, it did not confirm, following that review meeting, whether it intended to maintain, amend or end Y’s EHC plan.
26. Mrs X contacted the Council in mid-May 2023, asking when it would be arranging the annual review, as she believed it was now late. The Council told Mrs X it was the school’s responsibility to arrange annual reviews and Mrs X should contact Y’s school about this. It was at this point that the Council told Mrs X it had treated the “post-admission review” as Y’s annual review. It told Mrs X she could ask for an early review if she wanted to.
27. Around this time Mrs X also complained to the Council about the lack of an annual review. The Council says it acknowledged Mrs X’s complaint the following day, sent its formal response in mid-June 2023 and its final response a few days later.
28. In its responses to Mrs X’s complaint, the Council said:
• it had taken too long to respond to Mrs X’s complaint;
• Y’s school did not properly explain to Mrs X that its “post-admission review” was intended to take the place of the normal annual review; and
• that the “post-admission review” did not give a proper opportunity for Mrs X and Y to share their views about the plan before the meeting.
29. The Council apologised for the distress Mrs X had experienced and said it would arrange another annual review.
30. This annual review took place in July 2023. On this occasion, Mrs X and Y both had an opportunity to contribute their views before the meeting. The brief report from the meeting, prepared by Y’s school, said that Mrs X was happy for Y’s EHC plan to stay the same for the time being and appropriate changes could be made during the review planned for early 2024 to prepare for Y’s move to post-16 education. However, those at the meeting agreed that Mrs X would discuss with Y what changes they might want to make to the EHC plan ahead of the January 2024 annual review meeting.
31. Mrs X contacted the Council in mid-September 2023 to say she had not received the report from the annual review. Following this, and in response to Mrs X’s concerns about preparing Y for college, the Council says it brought forward the annual review it planned for early 2024. It says it held this on 20 October 2023 and is waiting for the report from Y’s school before confirming any changes it proposes to make.

My findings

December 2022 review

32. The Council says it treated the December 2022 review held by Y’s school as an annual review of her ECH plan.
33. The evidence shows the review did consider Y’s academic progress and included input from the school’s therapy team. However, there is no evidence from the report prepared by Y’s school that the review considered:
• all the special education provision in Y’s EHC plan;
• current or future targets for the coming year; or
• what provision would be needed to prepare Y for adulthood and independent living.
34. There is also no evidence that Y’s school told Mrs X it would be holding an annual review of Y’s EHC plan, that it invited all the required persons to the meeting, or that it sought the required information and advice in advance of the meeting, as required by the regulations.
35. After receiving the reports from Y’s school, the Council should have realised the review did not appear to have addressed all the points required by the regulations and statutory guidance. In my view, the Council was at fault for accepting the “post-admission review” as meeting the requirements of an annual review of an EHC plan.
36. Since the Council did consider the meeting to have been an annual review, it should have sent Mrs X its written decision about the review within four weeks of receiving the report from Y’s school. The Council failed to do this, which was fault.
37. The lack of clarity around the December 2022 review and the Council’s failure to confirm the outcome caused Mrs X avoidable uncertainty and distress. It also denied Mrs X her right to appeal any decision the Council made about whether, or not, to change Y’s EHC plan.
38. However, I do not consider it caused Y any injustice, since the evidence shows Y settled into school well and made good progress. There is nothing to suggest Y went without any necessary support.
39. The Council said in its responses to Mrs X that schools were responsible for the annual review process. That is incorrect. The law says that councils are responsible for reviewing EHC plans and making decisions about any changes. While councils can ask some schools to hold annual review meetings on its behalf, it is ultimately responsible for ensuring reviews take place, meet the legal requirements and are completed within the correct timescales.

July 2023 review

40. The July 2023 review meeting was intended to be an annual review. The evidence shows the Council made this clear to Mrs X and it also attended the meeting. Both Mrs X and Y had the opportunity to provide their views ahead of the meeting.
41. In my view, the report from the meeting was very brief and does not provide clear evidence that the review properly considered all the required issues, including appropriate preparation for adulthood. This was fault and the Council should have realised this when it received the report.
42. As with the December 2022 review, the Council should have told Mrs X, in writing, whether it intended to maintain, amend or end Y’s EHC plan within four weeks of the meeting. It did not do so, which was fault.
43. Again, I am satisfied this caused Mrs X some frustration and denied her a right of appeal any decision not to change Y’s EHC plan. However, it did not cause any injustice to Y as she was progressing well.
44. The Council’s plan to hold a further annual review in early 2024 was not fault. It needed to issue an amended EHC plan to prepare for Y’s move to post-16 education by the end of March 2024. Holding a review meeting in January 2024 would have allowed enough time for it to do this. In any event, the Council brought forward this review to October 2023.

Complaint handling

45. Mrs X found the Council’s handling of her complaint confusing. This was partly because Mrs X believed, from the Council’s website, that a different complaints procedure applied.
46. From the evidence I have seen, the Council followed the correct complaint procedure when it responded to Mrs X’s complaint. However, I am not satisfied the Council recorded or monitored Mrs X’s complaint properly. This led to some avoidable confusion for Mrs X.
47. The Council’s stage 1 response to Mrs X’s complaint was one working day late. I do not consider that delay caused Mrs X an injustice. The Council sent its stage two response within the timescale in its complaints procedure.

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Agreed action

48. Within one month of my final decision the Council will:
• send Mrs X its formal decision about the July 2023 annual review of Y’s EHC plan;
• apologise to Mrs X for the confusion and frustration caused by its failures to properly oversee the reviews of Y’s EHC plan and to send Mrs X its decisions about the reviews; and
• pay Mrs X £200 to recognise the distress and confusion it caused her.
49. Within three months of the final decision the Council will:
• remind relevant staff that while the Council can require schools to carry our annual review meetings on its behalf, the Council is still responsible for ensuring that annual reviews are carried out;
• remind relevant staff that, following an annual review, it must send its decision to parents within four weeks of the review meeting, even if it does not propose to make any changes to an EHC plan;
• review its requirements and any supporting guidance for schools when they hold annual review meetings on behalf of the Council. The Council should ensure that:
1. schools to which it delegates those meetings properly consider and record all the relevant issues listed in the statutory guidance, including any steps to prepare for adulthood for relevant children;
2. any reports from such meetings prepared by schools contain sufficient information for the Council to make the required decision about the review; and
3. where reports are not received at the right time or do not contain the required information, it raises this with schools in a timely manner.
• clarify the information on its website about which Council functions fall under the statutory children’s complaints procedure, particularly for closely related services, such as special educational needs.
50. The Council should provide us with evidence it has complied with the above actions.
51. The Council explained that, since September 2023, it has made changes to how it monitors and records EHC plan reviews. Since those changes came after the events I have investigated, I have not made further improvement recommendations about this.

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Final decision

52. I have completed my investigation. There was fault in how the Council failed to properly oversee the annual review process for Y’s EHC plan and how it recorded her complaint. This caused Mrs X avoidable confusion and frustration. The Council agreed to send Mrs X a copy of its decision about its last review, apologise and pay her a financial remedy. It also agreed to issue reminders to its staff and review how it asks schools to complete annual reviews on its behalf.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman