Summary: Miss Y complains about failures in the annual review process for her son’s Education Health and Care Plan. She says the Council failed to comply with a Tribunal order because it did not consider her son’s need for increased Speech and Language therapy. The Council accepts it failed to carry out the review process properly and has agreed to provide additional therapy to make up for the shortfall caused by fault.

The complaint

1. Miss Y says the Council failed to carry out the post Annual Review procedures properly in respect of her son’s EHC plan. Miss Y asked for amendments which she says were informally agreed via a working document put together before a Tribunal hearing in 2022. The Council conceded to the appeal and the Tribunal issued a consent order which Miss Y says the Council did not comply with.
2. As a result, Miss Y says her son missed important provision which he was entitled to.

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The Ombudsman’s role and powers

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 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. 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. 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

7. During my investigation I discussed the complaint with Miss Y by telephone and considered any information she provided.
8. I made enquiries of the Council and considered its response.
9. I consulted the relevant law and guidance about annual reviews of EHC plans.
10. I considered the Ombudsman’s Guidance on Jurisdiction and our discretion to investigate complaints about things which happened more than 12 months ago. I have exercised discretion in this case to investigate matters dating back to 2022 because the ongoing nature of some of the matters complained about.
11. Miss Y 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

What should happen

12. Councils must arrange for EHC plans to be reviewed at least once a year to make sure they are 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.
13. 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) 
14. 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.
15. The Ombudsman does not usually investigate complaints about issues which carry a right of appeal to the Tribunal. However, we can investigate complaints where a council has not followed a Tribunal decision because the Tribunal does not have powers to follow up on its own final orders.

Summary of key events

16. Miss Y’s son, who we will call B, has an EHC plan which sets out the provision needed to meet his special educational needs. The EHC plan issued by the Council in August 2021 contained the following provision for B’s speech and language therapy (SLT):

“9 x 60 min SLT sessions with a Speech and Language Therapist to be used flexibly for advice/training/demonstration in strategies and interventions to develop [B’s] attention, language and interaction”.

17. In 2022 Miss Y submitted an appeal to the Tribunal because she disagreed with some of the contents of B’s plan. Miss Y thought that B needed more SLT than the amount included in Section F of his plan.
18. The Council did not annually review B’s EHC plan in 2022. In response to our enquiries, it said B’s school incorrectly assumed that a review was not needed due to the ongoing appeal.
19. The Tribunal scheduled an appeal hearing for 16 September 2022. The day before the heating the Council agreed to settle the appeal. The Tribunal issued a consent order which said:

“… prior to the hearing the parties had been able to reach agreement and provide a working document (version 8) setting out the provision which is to be made. This includes both direct and indirect therapy from the SLT and we have been told that the new SLT assigned to [B’s] case recommends that most of the time allocated to the direct therapy should take place during the first months he is at school. There will then be a review as to whether this enhanced programme should continue or what other provision is to be made”.

“The LA accepts this plan and acknowledges that it would be sensible to bring [B’s] annual review forward to early 2023 so that there can be a full discussion of the provision to be made for him and to preserve the parents’ potential right of appeal in the unlikely event there is no agreement”.

20. The working document referred to by the Tribunal included a recommendation for B to receive 37 hours of SLT per year: 18 hours direct therapy and 19 hours of indirect therapy.
21. On 2 February 2023 a speech and language therapist submitted professional advice about D. Their report included the following recommendation:

“SLT [Speech and language therapy] 30 hours direct per year for intervention/demonstration/modelling of techniques and strategies for working towards targets…. [B] is also recommended 20 hours of indirect time per year to be used for liaison with parents, education staff and any other relevant professionals... Total: 50 hours comprising 30 hours direct and 20 hours indirect”.

22. The Annual Review took place on 2 February. The meeting report says, “All were in agreement that outcomes from previous EHCP needed to be changed as they were not appropriate for [B] at this stage”.
23. Despite this, the SEN Coordinator at B’s school made a recommendation at the end of the report to maintain the EHC plan without amendments. Following the review, the Council wrote to Miss Y to confirm its decision to maintain the plan:

“Following the Annual Review for [B], I am pleased to advise you that the recommendation made at the review that [B] is appropriately placed at [school name] has been accepted by the Authority”.

24. The letter went on to say, “We trust you agree with this decision. If you have any queries, please do not hesitate to contact me at the above address”.
25. Miss Y contacted the Council on 20 April to express her disagreement with the decision to maintain B’s plan without amendments. She also contacted the Tribunal about the decision not to amend B’s plan. Miss Y says she received a telephone call from a Tribunal officer who said her concerns were a matter for the Ombudsman to consider.
26. The Council responded to Miss Y’s complaint in May. The Council said it would be willing to update B’s plan with amendments arising from any updated professional advice. The Council confirmed it already had a report for SLT.
27. Following this, the Council issued an amended final EHC Plan in October 2023 and a final EHC plan in February 2024. This contained amendments including 50 hours of SLT made up of 30 hours of direct therapy and 20 hours of indirect therapy. The final EHC plan says this provision is in accordance with the SLT report from 2 February 2023.

Was there fault in the Council’s actions causing injustice to Miss Y and B?

28. It is not for the Ombudsman to decide what provision should be in a child’s EHC plan. This is because parents have a right of appeal to the Tribunal if they disagree with the content of the plan. However, we can consider whether the Council has followed the statutory procedure outlined in the regulations and the Code of Practice when issuing, reviewing and amending EHC plans. We can also consider the actions taken by the Council following the issue of a consent order.
29. We asked the Council to explain how it complied with the Tribunal’s consent order which referred to a working document showing a commitment to increase B’s hours of SLT. We also asked whether there had been a change which prompted the significant increase in SLT hours between the February 2023 ‘no change’ decision and the February 2024 final plan.
30. In response to our enquiries the Council accepted there was fault in the review process and that it should have amended B’s plan sooner. It says the ‘no change’ letter was issued in error. The Council says thiis was partly due to assumptions made by the caseworker who was not able to attend for the whole meeting and incorrect paperwork supplied by B’s school. As a result, the review meeting did not include any consideration of B’s SLT needs. This was the key issue in dispute and one which the Tribunal had ordered the Council to consider.
31. We also find further fault because the Council did not arrange a review of B’s EHC plan in 2022.
32. The Council accepts that the fault caused injustice to B because he did not receive the increased level of SLT he was entitled to. The fault also caused injustice to Miss Y because she has experienced avoidable frustration, time and trouble. The Council has agreed to complete the actions outlined in the following section of this statement to remedy the injustice caused by fault.

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Agreed action

33. Within four weeks of our final decision, the Council has agreed to:
• Contact Miss Y to discuss the provision of additional SLT to address the shortfalls caused by the fault. Any shortfall is to be funded by the Council and arranged at a frequency and pace which is suitable for B;
• Apologise to Miss Y. 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 I have recommended; and
• Pay £250 to Miss Y. This is a symbolic payment in acknowledgement of the frustration time and trouble caused by the fault.
34. The Council will provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman