Summary: Miss X complained about the content of her daughter Y’s Education, Health and Care (EHC) Plan, about how the Council reviewed the Plan, provided education and refused her request for a reassessment of Y’s needs. We found the Council delayed in completing the annual review of Y’s EHC Plan, and did not tell Miss X of her appeal rights against its decision not to reassess Y’s needs. The Council agreed to apologise to Miss X and pay her £400 to recognise the frustration this caused her.

The complaint

1. Miss X complained about how the Council has handled her daughter, Y’s Education, Health and Care (EHC) Plan. Specifically Miss X complained:
1. about the content of Y’s EHC Plan;
2. the Council delayed consulting with a school she wanted named in the plan;
3. the Council delayed reviewing the EHC Plan;
4. the Council did not seek an EHC reassessment she requested;
5. the Council did not provide Y an education between September and November 2023; and
6. the Council’s communication with her was poor.
2. Miss X said this caused Y a loss of education and social opportunities and caused her frustration, distress and time and trouble. Miss X wanted the Council to carry out further assessments, amend the EHC Plan, improve its communication, make service improvements and provide compensation.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
8. 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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What I have and have not investigated

9. I have not investigated point A. This is because Miss X had a right of appeal to the SEND Tribunal if she disagreed with the content of the Plan in February 2022 and November 2023. It was appropriate for Miss X to use those appeal rights.
10. I have not investigated point B. This is because there is no worthwhile outcome achievable as I can not tell the Council what school to name in the EHC Plan, only the Tribunal can do this. In addition Miss X has since stated she is unsure which school she wants named in the Plan, therefore neither she nor Y have been caused a significant injustice by any delay in the Council’s consultation.
11. I have investigated points C to F of Miss X’s complaint.

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How I considered this complaint

12. I considered the documents Miss X provided and discussed the complaint with her on the phone.
13. I considered the documents the Council provided.
14. Miss 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

Relevant legislation and guidance

EHC Plan 

15. 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. 

Reviewing EHC Plans

16. 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.
17. 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.
18. 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 the final amended EHC Plan within eight weeks.
19. There is a right of appeal to the SEND Tribunal about the content of an amended final EHC Plan once the Plan is issued by the Council.

Reassessments of EHC Plans

20. 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.
21. The council can 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.
22. 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.

Summer Born children

23. ‘Summer born children’ are children born between 1 April and 31 August. These children are not required to start school until the September following their fifth birthday. Ordinarily, they would then start school in year one with their ‘chronological year group’.
24. Parents can request their summer born children are admitted to a reception class in the September following their fifth birthday rather than year one. This means they are educated outside their normal age group.

The Council’s complaint procedure

25. The Council’s complaints procedure states it will respond to complaints within 30 days at stage one, and within a further 20 days at stage two.

What happened

26. This section sets out the key events in the matters I have investigated and is not intended to be a detailed chronology.
27. Miss X has a daughter Y who has special educational needs. She is a summer born child and was due to start reception with her chronological year group in September 2022. In February 2022 the Council issued an EHC Plan for Y which stated Y should attend school R from September 2022. At the time school R was Miss X’s parental preference. It is a special school for children with severe learning difficulties.
28. Miss X contacted the Council in July 2022 and told it she wanted to defer Y starting school until September 2023, and she did not want school R named in the Plan. The Council agreed to defer Y’s placement.
29. In November 2022 Miss X told the Council that her parental preference for September 2023 was school S.
30. Y’s EHC Plan was due for review in February 2023.
31. Miss X contacted the Council again in June 2023 about her preference for Y’s school as she had not heard anything. The Council told Miss X that school S did not have capacity to take Y. It said Miss X could appeal to the Tribunal against the school named in the Plan if she disagreed.
32. Miss X complained to the Council. She said the Council:
• had not changed the named school in the Plan to school S in line with her parental preference;
• had not reviewed the Plan in line with the statutory guidance timescales; and
• had not communicated with her or responded to her contact.
33. The Council held an annual review meeting on 4 August 2023. Miss X asked for a reassessment of Y’s needs by an Educational Psychologist (EP) as she said Y had developed significantly in the 18 months since the EHC Plan was issued. The Council responded and said it would not reassess Y as the provision listed in Y’s Plan had not yet been implemented in an education setting. It said it would review the provision once Y began attending school.
34. The Council wrote to Miss X a week after the annual review and told her it intended to amend Y’s EHC Plan.
35. The Council responded to Miss X’s complaint in August 2023. It said it:
• had not reviewed Y’s plan in line with the guidance, which affected Miss X’s appeal rights, and apologised;
• had delayed consulting school S and apologised;
• could not find any evidence of poor communication but acknowledged it had delayed contacting her in July 2023; and
• considered school R was appropriate to meet Y’s needs.
36. Miss X asked the Council to consider her complaint at stage two of the complaint procedure as she remained dissatisfied. She provided evidence of her contacts to the Council and complained about the Council’s refusal to complete a reassessment of Y’s needs.
37. The Council sent Miss X a draft amended EHC Plan and amendment notice for her comments in September. Miss X provided her comments on the draft amended Plan.
38. The Council responded to Miss X at stage two and upheld its previous response. It said:
• an EP reassessment was not usual practice unless there was a change in the child’s needs and the assessment completed in 2021 was not outdated;
• it had failed to respond to some of Miss X’s communications in October and November 2022 which was caused by high workload. It had since employed more staff to reduce the workload. It has also responded slightly out of timescale in June 2023; and
• the school named on Y’s EHC Plan (school R) could meet Y’s needs.
39. Miss X asked the Council to issue the final amended EHC Plan and provide her appeal rights to the SEND Tribunal.
40. The Council issued Y’s final amended EHC Plan on 14 November 2023. It did not name a school but stated Y should attend a special school for children with severe learning difficulties. The special educational provision in the Plan was unchanged.
41. Miss X stated she did not send Y to school R in September 2023 as she did not think it was suitable for Y’s needs. Miss X said she is no longer sure which school she wants named in the plan. Miss X said she intends to appeal the special educational needs, provision and placement type named in the EHC Plan.

My findings

42. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales

EHC review

43. The Council issued Y’s EHC Plan in February 2022. In line with the statutory guidance the Council should have completed an annual review of the Plan in February 2023, and so it should have begun the process in November 2022. It did not start the review process until August 2023, after Miss X had chased it to do so. That was a delay of nine months and was fault.
44. The Council held an annual review meeting at the beginning of August 2023. In line with the statutory guidance the Council should have issued its decision to amend, and its proposed amendments within four weeks of that review meeting, and issued an amended EHC Plan within a further eight weeks; by 27 October 2023. The Council did not issue the final amended Plan until 14 November 2023. That was a delay of three weeks and was fault.
45. The delay identified in the above two paragraphs delayed Miss X’s appeal rights and caused her frustration. The provision in the updated plan is the same as the previous EHC Plan, and Y remained on roll at school R until the final amended Plan was issued, therefore I do not find the delay caused any injustice to Y.
46. In another case the Ombudsman has recently investigated we recommended the Council improved how it monitors when EHC Plans are due for review and to remind relevant staff of the relevant statutory timescales. I have not repeated those recommendations. We will continue to monitor this through our investigations.

EHC reassessment

47. Miss X requested a reassessment of Y’s needs as she believed they had changed over 18 months. The Council considered the request and told Miss X within 15 days it decided it was not necessary to reassess and gave its reason. It upheld this decision and gave further reasoning in its stage two complaint response. The Council was entitled to make that decision. However, there is no evidence the Council told Miss X of her right to appeal that decision to the SEND Tribunal. That was fault and delayed Miss X’s appeal rights to the SEND Tribunal. Miss X has since received a further appeal right with the final amended EHC Plan.

Education and Provision - September to November 2023

48. Y’s 2022 EHC Plan named school R as the school she should attend. Until the Council amended or ceased the Plan, the 2022 plan remained in force. The Council confirmed school R was suitable and available for Y in August and October 2023. Although Miss X chose not to send Y to school R, there was a suitable placement available for her. There was no fault in the Council’s action.

Communication and complaint handling

49. The Council identified that its communication with Miss X had been poor in October and November of 2022, and it had delayed responding to her in June 2023, which is fault. Further investigation of this point would not lead to a different outcome; therefore I have not investigated this point further.
50. The Council accepted its communication had been poor but did not seek to identify the injustice this caused Miss X or an appropriate remedy. I made an appropriate recommendation below.
51. The Council took four weeks longer that its policy allows to respond to Miss X’s complaint at stage one. This delay caused Miss X frustration.

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Agreed action

52. Within one month of this decision the Council will write to Miss X and apologise for the frustration caused to her by the faults identified above, and pay Miss X a symbolic amount of £400 to recognise the same.
53. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
54. Within one month of this decision the Council will remind SEN staff members that when refusing a request for a reassessment of need, the Council must provide information on the parent’s right to appeal the decision to the SEND Tribunal.
55. The Council will provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation. I found fault causing injustice, and the Council agreed to my recommendations to remedy that injustice and avoid future fault.

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Investigator's decision on behalf of the Ombudsman