Summary: Ms B complained how the Council handled her daughter’s annual review. She says the Council delayed processing the annual review and it failed to consider her daughter’s safety and welfare during the request for a change of placement. She also says the Council failed to consider all her comments and evidence when it responded to her complaint. We find the Council was at fault for its delays during the annual review process. It also failed to evidence it considered all relevant information when deciding on a suitable placement for Ms B’s daughter. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms B complained how the Council handled her daughter’s (C) annual review. She says the Council delayed processing the annual review and it failed to consider C’s safety and welfare during the request for a change of placement. Ms B also says the Council failed to consider all her comments and evidence when it responded to her complaint.
2. Ms B says the matter has put enormous pressure on the family. She says C is at risk of harm in her current educational setting and she is missing out an education.

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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. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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)
7. 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

8. I considered information from Ms B. I made written enquiries of the Council and considered information it sent in response.
9. Ms B 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

Relevant law and statutory guidance

10. 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. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC Plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
12. Paragraph 9.194 says where the council proposes to amend an EHC Plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
13. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC Plan.
14. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC Plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
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.

What happened

16. This chronology includes an overview of key events and does not detail everything that happened.
17. C has special educational needs and an EHC Plan.
18. C’s school arranged an annual review of her EHC Plan in early February 2023. The Council says it was unaware the review was taking place and therefore did not attend. The school said C had been experiencing seizures which was making learning difficult. It said C’s needs were now more complex and it could not meet them.
19. The school says it contacted the Council several times to request a telephone meeting, but it did not receive a response. It also says it sent the annual review paperwork to the Council at the end of March. The Council has no record of the telephone calls or receiving the paperwork at the end of March.
20. Ms B contacted the Council in early April and asked what was happening with C’s annual review. She sent two chaser emails for a response.
21. The Council responded to Ms B and said her case officer left at the end of March. It said there would be a delay processing the annual review due to staffing issues.
22. The Council assigned a different case officer to C’s case in late April, but she went on medical leave shortly after.
23. The Council assigned a further case officer in May. She emailed Ms B and attached a copy of C’s amended EHC Plan. Ms B provided her comments on the Plan.
24. The Council issued C’s further amended EHC Plan in early June. Ms B asked the Council to consult with her preferred setting, an independent special school. The Council consulted with Ms B’s preference, C’s school, and some other settings.
25. C’s school responded to the consultation. It said it could not meet C’s needs and it could not keep her safe. It said C would benefit from a smaller setting with a focus on therapeutic support.
26. Ms B provided the Council with medical letters from C’s psychiatrist and a mental health service. These letters said C’s mainstream school environment was worsening her mental and physical health.
27. The Council reviewed the evidence. It emailed Ms B and said it did not agree to a specialist placement. It said C’s needs could be met within her mainstream school. The Council issued C’s final EHC Plan at the end of June. It named C’s school as the appropriate setting to deliver the provision in her plan. It told Ms B she could appeal to the SEND Tribunal if she was unhappy with the content of the plan.
28. Ms B complained to the Council. She said it failed to consider C’s safety and welfare when it named the school in her final EHC Plan. She said the school could not keep C safe. She sent the Council a further email with information about C’s seizures. She also said the Council had delayed processing the annual review.
29. Ms B asked the Council to complete a reassessment of C’s EHC needs in early July. The Council agreed to this. It sought advice from various professionals and C’s school.
30. Ms B sent the Council further information on 19 July for it to consider before it responded to her complaint.
31. The Council responded to Ms B’s complaint at the end of July. It apologised for the delay in processing C’s annual review. It said this was due to staffing issues. It also said it had reviewed the evidence and it was satisfied C’s needs could be met in a mainstream setting. It said it would organise a multi-professional meeting at the beginning of the next academic year to discuss C’s seizures and look at the support that could be put in place.
32. Ms B emailed the Council and said it failed to consider the information she provided on 19 July. The Council responded and said it was not aware of her email. It said it had now read it, but the content did not alter its previous response. It apologised for not referencing it previously.
33. The Council completed the reassessment in September. It said it had enough evidence that a special school was appropriate for C. It issued C’s final EHC Plan in early October. It left the name of the placement blank but noted it would be a special school.

Analysis

34. As the annual review took place in early February, the statutory deadline for the Council to issue C’s final EHC Plan was 1 May. The Council issued C’s EHC Plan on 23 June, which is nearly eight-weeks late. The Council says it did not know the annual review was taking place and it first knew about it in early April. It says the school did not send the annual review paperwork until 18 May, but it accepts it delayed chasing the paperwork due to staffing issues. It says the team is now almost fully staffed and this should prevent further delays.
35. Ms B has provided me with a timeline from the school which suggests it contacted the Council in February about what was discussed in the annual review, and it sent the annual review paperwork to the Council at the end of March. I have not been provided with the emails and so I cannot independently verify whether this happened or not. However, I have seen the Council acknowledged receipt of the annual review paperwork in late April. In any event, the Council is responsible for ensuring an annual review takes place. Therefore, as the 12-month deadline for the review was due, it should have contacted C’s school to find out what the arrangements were. If it had done so, it would have known the review was taking place and it could have chased the school sooner for the paperwork. Its failure to do so was fault, which caused Ms B frustration. I welcome the Council apologised to Ms B for its delays when it responded to her complaint, but I also recommend a financial remedy for the frustration caused. The Council should also implement a service improvement to prevent a recurrence of the fault.
36. Ms B says the Council failed to consider C’s safety and welfare during the request for a change of placement. The Council’s decision to name C’s school had a right of appeal to the SEND Tribunal. We would usually expect a complainant to use their appeal right unless we consider it was unreasonable for them to do so.
37. In Ms B’s case, she asked for a reassessment of C’s needs shortly after the Council issued C’s final EHC Plan. It was reasonable for Ms B to wait for the outcome of that process, rather than appealing. Therefore, I have exercised discretion to look at Ms B’s complaint about the change of placement.
38. When the Council responded to my enquiries, it said it initially did not have enough information to suggest C’s needs could not be met in a mainstream school. It said during the reassessment process it gathered new information about C’s needs. This showed a special school was now appropriate.
39. The Council has not provided me with any records or panel notes to show how it reached the decision a mainstream school was suitable for C. This is fault. The Ombudsman’s good administrative practice guidance says councils should state the criteria for decision making, keep proper and appropriate records and clearly explain the rationale for decisions. The Council’s failure to keep contemporaneous records casts doubt on how it reached its decision on C’s placement.
40. As the Council failed to keep proper records, there is no evidence it properly considered the school’s view that C’s needs had changed and she was not safe in its setting, or the view from the mental health service that C’s mainstream placement was worsening her mental and physical health. There is no evidence C’s needs had changed so significantly within the short time from June 2023 (when the Council said a mainstream school was appropriate) to September 2023 (when the Council agreed a special school was appropriate). If the Council had fully reviewed the evidence, I consider it is more likely than not it would have decided a special school was appropriate for C when it issued her EHC Plan in June.
41. The Council’s faults have caused C an injustice as she has lost out on suitable educational provision that is likely to have been in place sooner. It has caused Ms B frustration and distress about C’s provision, especially as she was repeatedly raising concerns C was not safe in her mainstream school. She has also had to time off work because of the stress caused by C having seizures at school.
42. Finally, Ms B says the Council failed to consider information she provided when it responded to her complaint. The Council did not consider Ms B’s email of 19 July when it responded to her complaint. This is fault, which caused Ms B some frustration. However, when Ms B bought it to the Council’s attention, it apologised and reviewed it without delay. This is sufficient to remedy Ms B’s injustice. I do not recommend anything further.

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Agreed action

43. By 4 April 2024 the Council has agreed to:

• Apologise to Ms B for the injustice caused by the faults identified.
• Pay Ms B £250 for her frustration and distress.
• Pay Ms B £1000 for the loss of C’s educational provision from June to October 2023. We would suggest Ms B uses this payment for C’s educational benefit.

44. By 3 May 2024 the Council will:

• Ensure it has a robust process in place to monitor when the annual review of an EHC Plan is due. Within this process it should ensure when the annual review is due the appropriate arrangements have been made for a meeting to take place.
• Ensure it has a process in place to keep detailed and contemporaneous records of special educational needs panel meetings.

45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. There was fault by the Council, which caused Ms B and C an injustice. The Council has accepted my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman