Summary: Mr X complained that the Council failed to review his daughter’s EHC plan and failed to respond to his communications. We found the Council delayed significantly in completing an annual review of the EHC plan. It has agreed to make a payment to Mr X and to his daughter in recognition of the injustice caused.

The complaint

1. Mr X complains on behalf of his daughter, Miss D, that the Council has failed to review her EHC plan and failed to respond to his communications. As a result, Miss D’s special educational needs have not been met and she has been isolated from her peers. This has also caused the family distress and frustration.

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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)

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What I have and have not investigated

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mr X complained to us in October 2023. I have exercised discretion to investigate his complaint back to June 2022 when the 2022 annual review was due. I have not investigated events which took place before this.

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How I considered this complaint

6. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
7. Mr X 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

Legal and administrative background

EHC plans

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
9. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviewing EHC Plans

11. 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.
12. 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)
13. If the 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.

Reassessments of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
15. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
16. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
17. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Service failure

18. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Key facts

19. Miss D has autistic spectrum disorder and special educational needs (SEN). She had an EHC plan which had been in place since 2017.
20. In June 2022 Miss D’s college held an annual review of the EHC plan. The annual review document stated that she was not currently attending college but was accessing classes online. Although this was helping Miss D towards a qualification, it was not allowing her to interact socially with her peers. So, the objective of developing her social and emotional skills was only partially being met and continued to be an area of need. The review stated that Miss D felt she was finished with mainstream education and would like a job.
21. Miss D did not re-enrol at college in September 2022. She was not in education, employment or training.
22. On 7 May 2023 Mr X complained to the Council about the failure to carry out an annual review, lack of contact, failure to comply with the Code of guidance and failure to fulfil its statutory duty. He said his daughter had been out of meaningful education for years and the family had had no support. He said Miss D’s EHC plan had not been updated for several years.
23. On 31 May an SEN officer contacted Mr X to arrange the 2023 annual review meeting. Mr X responded confirming his availability.
24. In June the Council requested the 2022 annual review report from the college. The college provided the report and explained Miss D was no longer enrolled with them but they were still providing some support.
25. On 23 June the Council responded to Mr X’s complaint.
26. On 31 August the SEN officer sent an email to Mr X apologising for the delay in arranging the annual review. She again requested Mr X’s availability. She also asked what Miss D’s plans were for the coming academic year. Mr X explained Miss D was of the opinion that formal learning was not an option but she needed significant support in social skills to enable her to find a job or placement. He said this was vital for her independence as she transitioned to adulthood. He said her EHC plan had not been changed for several years and he would be seeking an amendment to the plan to include such support.
27. An annual review meeting was held on 9 October 2023.
28. On 12 February 2024 Mr and Mrs X requested a re-assessment of Miss D’s SEN because of her inability to access education and training. The Council agreed to carry out a re-assessment.
29. On 22 March the Council wrote to Mr and Mrs X stating that, following the annual review, it considered Miss D’s current EHC plan continued to accurately reflect her educational needs and the placement and provision remained appropriate. So, it had decided not to amend the plan. The Council informed Mr and Mrs X of their right of appeal if they were not happy with this decision. It explained that, once the reassessment had been completed, it would review this decision.

Analysis

2022 Annual Review

30. The 2022 annual review was never finalised. Although the college held an annual review meeting in June 2022 it did not send the documentation to the Council. The Council says the SEN team contacted the college several times but did not receive the annual review documentation until June 2023. So, it could not respond to the annual review. It accepted this was a significant failing.
31. Councils must review EHC plans at least annually. The annual review process includes a review meeting and the subsequent decision which will have appeal rights. The meeting should be timed so that the whole process is completed within 12 months of the previous review.
32. The Council can delegate the holding of the review meeting to a school or college. But it is responsible for the overall review process and we would expect it to chase up the college for the annual review documentation after a review meeting to enable it to complete the review on time.
33. I appreciate the Council made some effort to chase up the documents, but ultimately it failed to ensure that they were provided so it could complete the review. The Council should have told Mr X within four weeks of the annual review meeting in June 2022 whether it intended to continue, change or end Miss D’s EHC plan. It did not do this. This was fault.

2023 Annual review

34. The Council was also at fault because it delayed in arranging the 2023 annual review. The review was due in June 2023. The Council contacted Mr X in May to arrange the meeting. He provided his availability but the Council did not contact him again until October. The annual review process was not completed until March 2024. This was a significant delay, particularly following the failure to complete the annual review process the previous year.

Injustice

35. The delays, which are way outside the statutory timescales, have left Miss D and Mr X in limbo. Mr X has been caused worry and uncertainty about the arrangements for Miss D’s education and support. He has also been put to time and trouble in pursuing the matter with the Council. In addition, the Council’s failure to complete the annual review process in 2022 meant Mr X was denied the opportunity to appeal to the SEND Tribunal. The delay in completing the annual review due in June 2023 meant that Mr X’s appeal rights were delayed until March 2024 when the Council informed him of its decision not to amend Miss D’s EHC plan.
36. Mr X says the failure to review Miss D’s plan led to a failure to meet her needs and she was left isolated from her peers and reliant on Mr and Mrs X. Miss D has suffered a great deal of distress as a result and this has hugely impacted the whole family.
37. In response to Mr X’s complaint, the Council said it considered Miss D did not suffer significantly because of the delay in completing the 2022 annual review because she had an EHC plan in place and “was being provided for appropriately-for the most part”. The Council said her injustice was limited to a lost opportunity to improve on the existing plan taking into account any changes to her needs. The Council accepted there was a degree of uncertainty about Miss D’s future arrangements and how that would impact on her well-being. It offered to pay Miss D £250 in recognition of the distress caused and offered to pay Mr X £200 in recognition of the time and trouble he had been put to in having to make his complaint. I do not consider this to be an adequate remedy.
38. I disagree with the Council’s view that Miss D was not significantly disadvantaged because there was an existing EHC plan in place. The plan was issued in 2017. Miss D left college in June 2022. So the Council should have considered what her needs were going forward and how they would be met. The Council delayed in complying with its duty to do so. The Council has not yet issued a revised plan so I cannot say what provision Miss D missed out on because of the delays. But she has suffered uncertainty and distress together with a loss of opportunity to have her EHC plan amended sooner. If Mr X is dissatisfied with the provision in the revised EHC plan once it is issued, he can appeal to the SEND Tribunal.

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Agreed action

39. The Council has already apologised for the delay in completing the annual review process. So, I have not recommended a further apology.
40. The Council has agreed that, within one month, it will:
• pay Mr X £500, to be used for Miss D’s educational benefit, in recognition of the distress and uncertainty she suffered; and
• pay Mr X £500 in recognition of the distress and uncertainty he suffered, for his time and trouble in pursuing the matter and for the lost opportunity to appeal to the SEND Tribunal.
41. The Council has also agreed that, within three months, it will:
• produce an action plan to demonstrate how it will meet statutory timescales for annual reviews in future;
• issue a reminder to relevant staff that they are aware of the Council’s duties where annual reviews are delegated to school and colleges,
• review its processes to ensure it has monitoring arrangements in place to identify potential failings at the earliest opportunity.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I find fault causing injustice.
44. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman