Summary: Miss X complained the Council failed to review her daughter’s Education, Health and Care Plan (EHC Plan) and it failed to provide Speech and Language Therapy (SALT) she was entitled to. We found the Council had not carried out the EHC Plan reviews that it was required to, it had issued an EHC Plan in 2021 without consultation and it delayed issuing the 2023 EHC Plan. The Council also failed to provide Y’s SALT. We recommended and apology and payment to the complaint to recognise the impact.

The complaint

1. Miss X complains the Council failed to ensure her daughter’s Education, Health and Care plan (EHC Plan) was reviewed since September 2021 when she moved from a school to a college.
2. Her daughter’s previous school stated she would benefit from a scribe and a reader. Miss X complained that, because there had been no review, no consideration had been given to adding this to her EHC Plan. Miss X also told us that the SALT provision set out in the plan had not been provided since her daughter moved to college.
3. Miss X complained that her daughter had been disadvantaged by the lack of reviews and resulting lack of consideration about how her support needs had changed.

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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. 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. I spoke to Miss X and considered the information she provided. I asked the Council for information and considered its response to the complaint.
7. Miss X 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

Special Educational Needs Code of Conduct (SEN Code)

Education, Health and Care Plan (EHC Plan) Reviews

8. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. If a council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. Where the 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 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). Case law sets out this should happen within four weeks of the date of the review meeting. The Council should then issue any final amended plan within 8 weeks of the amendment notice. Therefore, a final plan must be issues within 12 weeks of the review meeting.

Planning for Transitions

12. The SEN Code states that SEN support should include planning and preparation, before a child moves into another school. The outcomes considered should include those needed to make successful transitions between phases of education. All reviews taking place from Year 9 must include a focus on preparing for adulthood, including employment, independent living and participation in society. It is particularly important in these reviews to seek and to record the views, wishes and feelings of the child or young person.
13. The code also states that Colleges should be involved in transition planning between school and college so that they can prepare to meet the student’s needs and ensure a successful transition into college life.

Annual Reviews of the Education, Health and Care Plan (EHC Plan)

14. I have referred to Miss X’s daughter as Y in this statement.
15. The Council acknowledged in response to our enquiries on Miss X’s complaint that Y’s EHC Plan had not been reviewed since December 2020. The annual reviews that should have taken place in 2021 and 2022 did not take place.
16. The Council stated it delegated responsibility for carrying out reviews to the Further Education (FE) college Y attended from September 2021. It understood the reviews did not take place due to COVID-19 impacts and staffing issues.
17. The Council stated its caseworkers should keep track of annual reviews and attend annual reviews when schools/colleges contact the Council to arrange them. It seems this was not happening and annual reviews were not being followed up if the Council did not hear from schools/colleges.
18. The lack of Annual Review in 2021 constitutes fault by the Council. It was more significant in Y’s case because she was in Year 11 in 2021, and she left Secondary School in the summer. As such this was a key transitional stage of education for Y where an EHC plan review was important to ensuring a smooth transition between school and college.
19. Despite not carrying out an Annual Review in 2021, the Council did issue a revised EHC Plan. This was dated 30 September 2021 but sent to Miss X on 5 October 2021. In its letter to Miss X, the Council stated, because of Y’s transfer to college, it had been decided that the EHC Plan should be amended to reflect the new placement to ensure the college are appropriate resources to support Y. The letter stated ‘The amended EHCP is enclosed and a copy will also be sent to the college. We acknowledge that [Y’s] needs may have changed since his (sic) transfer to college and so the information contained within the EHCP may not be a wholly accurate representation of her current strengths and special educational needs. In order for us to ensure her EHCP fully depicts her strengths and needs, we will recommend the college holds an early review of the EHCP…’.
20. The Council’s letter went on to set out Miss X’s appeal rights if she disagreed with the content of the EHC Plan.
21. The way the Council issued the EHC Plan in late 2021 without any consultation with professionals or any opportunity for Miss X and Y to comment on a draft, was a clear breach of the SEN Code.
22. No early review of Y’s EHC Plan did take place in late 2021 as the Council proposed. This was despite the Council being aware of the need for this given the EHC Plan it had issued without consultation was likely to be outdated. This was poor.
23. Part of Miss X’s complaint to us was that Y’s school had stated (in November 2020) that she needed a reader and a scribe in class and in exams and 25% extra time in timed tests and exams. This was not provision the Council included in her EHC Plan dated September 2021.
24. While the failure to conduct a review at a key stage of education was fault by the Council, it was reasonable to expect Miss X to use her appeal rights to challenge the content of the EHC Plan issued in September 2021 if she disagreed with the content. Because concerns about Y’s EHC support could have been addressed by appeal, we cannot investigate any lack of provision in 2021 further or seek a remedy for it.
25. The Council told us, since May 2022, it had changed practice. Since then, the Annual Review Manager has completed monthly checks of the EHC Plans which should have Annual Reviews to see if any are outstanding. This allows these to be followed up as necessary. This is ongoing.
26. However, no annual review was carried out for Y during 2022 either. The Council stated, in Y’s case it put measures in place to ensure the Annual review happened the following year 2023. This doesn’t explain the lack of review for Y in 2022.
27. Because Y’s EHC plan was not reviewed in 2022, it is unclear whether Y’s needs had changed and gone unmet during this period. No EHC Plan was issued in 2022, so Miss X had no appeal rights.

2023 Annual Review

28. The SEN Code and relevant case law requires a final plan to be issued within 12 weeks of a review meeting. An Annual Review took place in March 2023. In Y’s case the final plan should have been issued by 23 June at the latest.
29. In August, Miss X complained about the lack of action following the review and the Council agreed to carry out a further annual review. This was held in December 2023. The Council told us it issued an amended final EHC Plan on 9 January 2024. There was significant delay in issuing the final EHC Plan. The delay represents fault.

Speech and Language Therapy (SALT)

30. The Council told us that Y had not received any SALT provision since moving to her Further Education college. The Council told us Y was discharged from SALT on 21 July 2021. The letter from the SALT provider indicates that this was because she was leaving the Secondary School where the SALT had been arranged. It did not indicate this was due to Y’s needs changing.
31. The EHC Plan issued in September 2021 included SALT provision. So, it should be provided. In terms of specific SALT needs, Section F of the EHC Plan required:
• Monitoring and support from the Speech and Language Therapy Service and continued liaison with Speech and Language Therapy staff. This should be: Half-termly input from a qualified SALT for one session to review targets with a learning mentor present. This should be reviewed termly, and then as part of the annual EHC Plan review process.

Was there fault and Injustice

32. There was repeated failure to carry out reviews of Y’s EHC plan in 2021 and 2022. There was also delay in issuing a revised EHC plan when it was reviewed in 2023. We have recommended a payment be made to Miss X to recognise the distress and frustration caused by these faults.
33. The Council suggested that Y was discharged from SALT in 2021. The evidence it provided indicated this ended because Y had left Secondary School. It did not evidence that Y no longer needed SALT. Indeed, Y’s EHC Plan in September 2021 specified that she should have support from a Speech and Language Therapist. This remained part of Y’s provision throughout 2021, 2022 and 2023. The failure to provide the SALT was therefore fault. We have recommended a payment to reflect the lack of this provision.
34. Our guidance on remedy states, where fault has resulted in a loss of all educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In Y’s case she has not missed all educational provision. However, she has missed out on SALT provision. As a result, we have recommended a payment of £150 per term, for 9 terms (2021, 2022 and 2023). This amounts to £1350.

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Recommended action

35. Within four weeks of my final decision:
36. The Council should send a written apology to Miss X and Y for the lack of Education, Health and Care Plan reviews and for the delay in issuing the EHC Plan following the 2023 review. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
37. To recognise the distress and frustration caused by the failure to review Y’s EHC plan and the delay in producing the Education, Health and Care Plan following the 2023 review, we recommend the Council pays Miss X £750.
38. To recognise the failure to provide Y’s Speech and Language Therapy, the Council should make a payment to Miss X, for Y of £1350.
39. The Council should write and distribute a briefing note for all staff dealing with Education, Health and Care Plans (EHC Plans) to remind them of the Councils obligations to carry out Annual Reviews of plans and the correct process to follow to consult families and relevant professionals before issuing EHC Plans.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. There was fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman