Summary: Miss X said the Council delayed carrying out an annual review of her Education, Health and Care plan. The Council was at fault. This caused Miss X avoidable uncertainty for which the Council will apologise and pay her £350. The Council will also clarify with staff that they must carry out annual reviews within twelve months of the previous review.

The complaint

1. Miss X said the Council delayed carrying out an annual review of her Education, Health and Care plan. She said this caused her significant distress which impacted on her education and wellbeing.

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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 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)
3. 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)
4. 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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How I considered this complaint

5. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. Miss X and the organisation 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

Relevant law and guidance

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child or young person’s needs and what arrangements should be made to meet them.
8. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review EHC plans once a year. The first annual review must take place within twelve months of the date of the first EHC plan. Subsequent annual reviews must take place within twelve months of the previous annual review.
9. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the council. Following the meeting, the school or college sends the council the review paperwork to the council. The second stage of the annual review is the council’s decision notice. Within four weeks of the meeting, the council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
10. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice (an amendment notice, also known as a draft plan) providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). It must do so ‘without delay’.
11. 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 existing EHC plan and amendment notice to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
12. Caselaw has established that when councils are amending an EHC plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended plan.

What happened

13. Miss X had an EHC plan dated October 2021 that set out the provision she needed while she attended college. In early February 2022, Miss X’s college held her first annual review meeting. The college noted the placement was still suitable to meet Miss X’s needs and the EHC plan should be maintained without amendments. The Council has no record it issued a decision to amend, maintain or cease Miss X’s EHC plan.
14. In late November 2022, the college held Miss X’s second annual review meeting. In mid-March 2023, the Council issued its decision to amend Miss X’s EHC plan. It sent Miss X an amendment notice (draft EHC plan) setting out the proposed changes in early April 2023, and a further draft plan in mid-April, three days after Miss X made some comments.
15. The Council issued Miss X’s amended final EHC plan in early June 2023. There was no new provision in the plan. The cover page of the plan noted the next review date for the plan was “within one year from issue of Final Plan”.
16. 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.
17. 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.
18. 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 Miss X’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.

Findings

19. The Council does not have a record it sent Miss X its decision to amend, maintain or cease her EHC plan following the February 2022 review meeting. This was fault and meant the Council did not complete the annual review process. This did not cause Miss X an injustice as the college recommended the EHC plan continue without amendments, which is, in effect, what happened. I have seen no evidence Miss X wanted provision different to that already in her plan.
20. The college held Miss X’s next annual review in late November 2022. However, the Council did not issue its decision to amend, and therefore finish the annual review, until mid-March 2023. This was fourteen weeks after the review meeting, over three months longer than the Council should have taken. The delay was fault.
21. The Council issued Miss X’s amendment notice (draft plan) in early April 2023 and the final amended plan in early June, around eight weeks later. This was in line with the statutory timescales. However, the delay in completing the annual review meant that overall, the Council took 27 weeks from the annual review meeting to the final amended plan, fifteen weeks (almost four months) above the twelve-week timescale.
22. This caused Miss X avoidable uncertainty and upset for which I have made recommendations below. However, the June 2023 EHC plan does not contain new provision, so I am satisfied the delay in issuing it did not result in a loss of support for Miss X. We have made service improvement recommendations to the Council in another ongoing investigation, so I have not repeated those recommendations here.
23. The Council issued the June 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 Miss X frustration. My review of recent Ombudsman’s investigations shows the Council has repeated that mistake recently, so I am satisfied it was not a one-off error. I have therefore made a recommendation to prevent the fault occurring again.

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Agreed action

24. Within one month of the date of my final decision, the Council will take the following action.
• Apologise to Miss X for the uncertainty and upset she experienced due to the delay in carrying out the annual review and the frustration she felt because of the mistake on her June 2023 EHC plan.
• Pay Miss X £350 in recognition of that uncertainty.
• Clarify with staff that they must complete annual reviews within twelve months of the previous annual review, not within twelve months of the previous EHC plan.
25. The Council will provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman