• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained about how the Council handled her daughter’s Education, Health and Care Plan annual review and a request to change school placement. We have found the Council at fault for delays during the annual review process. This caused Mrs X and her daughter avoidable distress.

The complaint

1. Mrs X complained the Council initially refused and then delayed carrying out a review of her daughter’s (Y’s) Education Health Care (EHC) Plan when she requested to move schools. She said this delayed the consultation with alternative schools and prevented Y’s move to a more suitable school. Mrs X says this has caused her and her daughter significant anxiety and stress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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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How I considered this complaint

4. I considered Mrs X’s complaint and spoke to her about it.
5. I also considered the Council’s response to Mrs X and to my enquiries.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Law and guidance

EHC Plan

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.

Reviewing EHC Plans

9. 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.
10. There is currently no legal timescale for a council to respond to a request for a change of school made at a time other than draft Plan stage. We are likely to view this similarly to any other change of circumstances where early review of reassessment should be considered. The Code (9.193) provides for council to amend EHC Plans at times other than an annual review or after a reassessment.
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.

What happened

12. Mrs X’s daughter (Y) has special educational needs and disabilities (SEND) and has an EHC Plan.
13. In January 2023, Mrs X removed Y from her school (School A) as she did not consider it was meeting her needs and had stopped providing wrap around care. Mrs X approached her preferred school (School B) who said it would need to see an up to date EHC Plan before offering Y a place.
14. The Council was due to carry out an annual review of Y’s EHC Plan in May 2023. Mrs X said she requested an early review in March 2023. The Council has no record of this request.
15. In May, the Council held the annual review meeting. The Council agreed to a change of placement and to amend the EHC Plan. Before it could consult with School B, it requested Y’s annual review paperwork from School A.
16. During June and July, the Council was in contact with both schools to complete the relevant paperwork and confirm the change in placement. The Council chased School A for the annual review report which it received in mid-July. The Council immediately forwarded this to School B outside the formal consultation process. School B said it could not admit anymore pupils with EHC Plans and said the Council would need to go through the formal consultation process.
17. In early September, at the start of the autumn term, the Council formally consulted School B. The school explained why it could not offer Y a place. Its reasons included that Y’s attendance at the school would be incompatible with the efficient education of others. In addition, it explained that it did not have staff capacity to deliver the SEND provision outlined in Y’s EHC Plan.
18. The Council issued Y’s Proposed Amended EHC Plan in November and the Final Amended Plan in January 2024. This named School A. Mrs X said she is working with School A to improve conditions for Y and that the school was now providing wrap around care again.

My findings

19. There was a delay between the annual review meeting in May 2023, and the Council consulting School B in September 2023. The Council said this was due to the delay in School A sending through the relevant annual review paperwork, and then the summer holidays. It confirmed it did approach School B before the summer break.
20. While I appreciate that School A delayed returning the paperwork, it is the Council’s responsibility to meet the EHC Plan annual review deadlines. This was fault. While the delay caused Mrs X and Y frustration and distress, on balance, I do not believe the outcome regarding a place at School B would have been any different. The Council has agreed to remedy Mrs X and Y’s avoidable distress with an apology and a symbolic payment of £300.

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Agreed action

21. Within 4 weeks of my decision, the Council has agreed to:
    • 1. Apologise to Mrs X for the delays she experienced during the annual review process, and
      2. Pay Mrs X £300 in recognition of the avoidable distress she experienced because of the delays.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. I have completed my investigation. I have found the Council at fault for delays during the annual review of Y’s EHC Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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