Summary: Ms X complained the Council delayed her child, Y’s annual review process and delayed issuing Y’s amended Education, Health and Care (EHC) Plan following an annual review in January 2023. The Council was at fault for the delay in the annual review process. It was also at fault for the delay in issuing Y’s final amended EHC Plan following the annual review. The Council will apologise to Ms X for the delays and pay her a symbolic payment.

The complaint

1. Ms X complained the Council delayed holding an annual review meeting for her child, Y. She said there were further delays after the annual review meeting in late January 2023. Ms X said the Council did not accurately reflect her comments, or comments made in a private educational psychologist report on Y’s Education Health and Care (EHC) Plan and there were delays caused by Y’s school. She said as a result the Council delayed issuing Y’s amended final EHC Plan until early June 2023. Ms X also said the Council refused to consider a direct payment request for respite care. Ms X said this caused avoidable time and trouble, she had to pay for a professional report and it affected her mental health.

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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. 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. Ms X complained to the Ombudsman in November 2023. She said Y should have had more frequent annual reviews earlier in 2022. This part of Ms X’s complaint is late. There are no good reasons to exercise discretion to investigate events going back to earlier in 2022 because Ms X could have complained to us sooner.
11. I have investigated between early January 2023 when Y had their annual review and June 2023 when the Council issued its final response and issued Y’s final amended EHC Plan. After which Ms X had appeal rights to the SEND tribunal.
12. Ms X also complained about the Council’s refusal to consider direct payments for respite care. Ms X exercised her appeal rights about this issue to the SEND tribunal so for the reasons set out in paragraph 6 and in the law and guidance section below, this aspect of her complaint cannot be investigated.
13. We cannot investigate internal complaints about schools as explained in paragraph 4 above.

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How I considered this complaint

14. I considered:
• the information Ms X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
15. Ms X and the Council had the opportunity to comment on this draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

16. 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. Section B sets out the child’s special educational needs. Section F sets out the educational provision needed by the child or young person.
17. 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. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
18. The courts have established that if someone has appealed to the SEND tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Reviewing EHC Plans

20. 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.
21. 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)
22. 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 issue an amended plan within eight weeks of its notice to the parties that it proposes to amend the plan.

Complaints process

23. The Councils corporate complaints process is as follows:
• issue an auto acknowledgement to confirm receipt of contact; and
• review concerns and respond within 10 working days. If no response can be given within 10 working days it will explain why.

What happened

24. Y lives with their family and has special educational needs. In September 2022 Y was on roll at a specialist school, School 1. This was the placement agreed in their first Education, Health and Care (EHC) Plan. The Council issued this Plan in late January 2022.
25. Ms X commissioned an educational psychology (EP) report to assess Y’s learning difficulties. In late January 2023 the EP report was finalised and submitted as part of Y’s annual review.
26. Two days later Y’s EHC Plan annual review meeting was held by School 1. This was attended by Ms X, a family member, School 1, a speech and language therapist (SALT) and a Family Support Officer. The annual review considered the private EP report and a sensory Occupational Therapy (OT) report produced in late January 2023. The annual review did not recommend any significant changes to Y’s EHC Plan. It decided no further action was needed.
27. In mid-February 2023 the Council emailed School 1 to ask for the annual review paperwork.
28. In late February 2023 Ms X emailed the Council and asked why Y’s annual review had been delayed. She said the Council should have completed the annual review by late January 2023. Ms X also said Y’s annual review should have been completed within four weeks of the annual review meeting, making a decision on whether to maintain, cease or amend the EHC Plan. Ms X said that had not happened.
29. In early March 2023, School 1 sent the Council Y’s annual review paperwork and Ms X received the paperwork a week later.
30. In mid-March 2023, in response to the annual review documentation the Council sent Ms X a letter. It said it was still considering if it would amend Y’s EHC Plan. It also gave Ms X her appeal rights, if the Council and Ms X could not agree if Y’s EHC Plan should be amended.
31. The same day the Council also responded to Ms X’s concerns from late February 2023. It apologised for the delay in getting the annual review paperwork from School 1. It said School 1 did not make any amendments to Y’s EHC Plan and it had received Ms X’s commissioned EP report. The Council gave Ms X information on the Special Educational Needs and Disability Information, Advice and Support Service (SENDIASS).
32. Ms X emailed the Council. She said she was unhappy with inaccuracies in School 1’s annual review paperwork. Ms X asked for amendments to the annual review paperwork and said reports were missing. She asked the Council not to make a decision on Y’s EHC Plan until School 1 provided the correct annual review paperwork.
33. In mid-April 2023 Ms X complained she still had not received Y’s amended EHC Plan. A meeting was offered to Ms X by the Council but she declined because she wanted to see the paperwork first.
34. In late April 2023 the Council decided to amend Y’s EHC Plan. It wrote to Ms X and enclosed a copy of Y’s draft EHC Plan.
35. Between late April and late May 2023 numerous emails were sent between Ms X and the Council. The Council also offered Ms X another meeting to discuss Y’s draft EHC Plan, which Ms X declined. The Council sent Ms X several draft versions of Y’s EHC Plan. The Council considered Ms X’s suggested amendments, School 1’s comments, the EP report and a decision made by a Resourcing Panel. Ms X made further changes to the draft EHC Plan in early June 2023. Four days later the Council issued Y’s final amended EHC Plan. It also sent Ms X her appeal rights to the SEND tribunal.
36. In late June 2023 the Council issued its final complaint response to Ms X. It apologised to Ms X for the delay in responding to her. It explained Y’s draft EHC Plan amendments and said it issued Y’s final amended EHC Plan in early June 2023. It gave her the details of the Ombudsman if she remained unhappy.
37. In late July 2023 Ms X appealed to the SEND tribunal on Sections B, F and on the social care included in Y’s final amended EHC Plan. Ms X subsequently withdrew her SEND tribunal appeal in mid-January 2024.
38. Ms X remained unhappy with the Council stage 2 response and complained to us.

Enquiries

39. In response to my enquiries the Council said it delegated its annual review responsibility to School 1. However, it said it recognised its responsibility to complete the annual review process within 12 months. It said it had already discussed this with School 1.

My findings

Annual Review delays

40. The Regulations state councils must arrange for a new EHC Plan to be reviewed within 12 months of the first EHC Plan. This process is only complete when the council issues a decision about the review. The Council issued Y’s first EHC Plan in late January 2022. School 1 held Y’s EHC Plan annual review meeting in late January 2023 and the Council decided to amend Y’s EHC Plan in late April 2023. This was a delay of three months and was fault. It caused Ms X frustration and delayed her right of appeal to the SEND tribunal if she disagreed with the decision. The Council said it had already spoken to School 1 about annual review timescales.
41. School 1 held Y’s EHC Plan annual review meeting in late January 2023. To be in line with statutory guidance the Council should have told Ms X if it intended to maintain, amend or discontinue Y’s EHC Plan within four weeks (by late February 2023) and issued an amended final EHC Plan within a further eight weeks (by late April 2023). The evidence shows the Council did communicate with Ms X and School 1 throughout this period and issued several draft EHC Plan’s and considered comments raised and the private EP report. However, the Council did not issue Y’s final amended EHC Plan until early June 2023, this was a delay of 7 weeks and was fault. It caused Ms X frustration. It also delayed her rights of appeal to the SEND tribunal which she exercised.
42. The Ombudsman has already made recommendations to this Council on similar cases. It has been asked to remind staff completing annual reviews that final amended EHC Plans are issued within 12 weeks of the annual review meeting case. The Council has also been asked to review if staffing changes implemented in Autumn 2023 resolved problems with delays in completing annual reviews case. On this basis no further recommendations are needed.

Complaint handling

43. Ms X first complained to the Council about Y’s EHC Plan annual review delays in late February 2023. The Council’s complaint process states it would respond to concerns within 10 working days. At first the Council responded informally through emails. The Council sent Ms X a formal response in late June 2023. This was delay and caused Ms X frustration. The Council has already apologised for its delayed response. This was a suitable remedy for the injustice caused to Ms X.

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Agreed action

44. Within one month of the final decision the Council will apologise and pay Ms X £200 for the delayed appeal rights and frustration caused to her by the three-month delay in completing the annual review process and the seven week delay in issuing Y’s final amended EHC Plan.

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Final decision

45. I have completed my investigation finding fault. The Council has agreed to take action to prevent reoccurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman