Summary: Mrs Z complains about how the Council administered her son’s (X) Education Health and Care Plan review. We uphold the complaint when comparing the Council’s assessment against the requirements of the Special Educational Needs Code of Practice. The Council has agreed to our recommendations.

The complaint

1. The complainant (Mrs Z) complains about how the Council has administered her son’s (X) Education Health and Care (EHC) Plan review. My summary of the complaint is the Council:
• repeatedly breached the statutory procedure relating to the EHC Plan reviews;
• did not provide Mrs Z with a written copy of review meeting minutes;
• did not consider the evidence provided for review at the meeting;
• delayed producing a draft and final EHC Plan;
• did not implement the findings of its complaint responses;
• through its Special Educational Needs and Disability (SEND) Caseworker was poor in its communication with Mrs Z.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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 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. 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. Mrs Z complained to the Ombudsman in February 2024. There is a time bar on the Ombudsman considering any matter a complainant has known about for more than twelve months.
10. One of Mrs Z’s complaints is about a review of X’s EHC Plan that started in November 2022. But Mrs Z says it was only when she complained that she was told this was an EHC Plan review meeting. I accept Mrs Z’s evidence about this. This means that complaint is within time and so is something I have investigated.
11. My investigation ends in February 2024 when Mrs Z complained to the Ombudsman.

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How I considered this complaint

12. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs Z;
• made enquiries of the Council and considered its response;
• spoken to Mrs Z;
• sent me draft decision and invited comments from Mrs Z and the Council.

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What I found

EHC Plan

13. A child or young person with special educational needs may have an 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

14. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place.
15.  
16. The “Special Educational Needs and Disability Code of Practice” (The Code) says:

• reviews should normally be held at the school;
• parents are among the people who must be invited to a meeting;
• the school must seek advice and information about the child before the meeting from everyone involved. It must send any advice and information gathered to all those invited at least two weeks before the meeting;
• the school must send a report to everyone invited within two weeks of the meeting.

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. If the Council decides to amend a Plan, it must issue the final plan within eight weeks of the amendments notice (so within 12 weeks of the review meeting). Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and The Special Educational Needs and Disability Code of Practice: 0 to 25 years (The Code) paragraph 9.176)

What happened

18. X is a child with special educational needs. At the time of the complaint he had recently started school. The Council issued an EHC Plan in July 2022, before he began at a named school from the start of the Autumn term.
19. In November 2022 the school hosted what the Council describes as a meeting to review X’s EHC Plan. The Council says it was held then to assess whether X’s transition to a new school had been successful. Mrs Z says they received no documents prior to the meeting. There is no record in the Council’s documents of it issuing a decision notice following the meeting.
20. On 8 November 2023 Mrs Z attended a review meeting at the school. The Council says it received the paperwork from this meeting towards the end of the month.
21. On 18 December Mrs Z complained to the Council that it:
• had not sent a decision after the November meeting;
• should have ensured a review meeting took place in July 2023, as that was a year after the issue of X’s EHC Plan;
• had not sent any report following the November 2023 meeting;
• had frustrated her appeal rights because of these delays.
22. In response to Mrs Z’s complaint the Council said, at stage one of its procedure, it would ensure it issued a decision letter on the annual review by 22 December 2023.
23. At the beginning of January 2024 Mrs Z asked to escalate her complaint. She noted:
• she had received no documentation about the 2022 review meeting;
• she had still not received a decision about the 2023 review.
24. On the same day as Mrs Z’s complaint, the Council issued a notice of its intention to amend X’s EHC Plan. It issued a draft EHC Plan on 8 January.
25. The Council’s January response at the second stage of its complaint procedure, accepted it did not send the amendment notice by the date its stage one response had committed to. It apologised. It said in the future its case management supervision sessions would include review deadlines. And when delays could not reasonably be avoided, it would notify parents.
26. Mrs Z complained to the Ombudsman in early February.
27. The Council issued a final EHC Plan for X on 27 May 2024. Part of the delay was due to resolving an issue with a specific health need X has.

Response to Ombudsman enquiries

28. In response to my enquiries, the Council noted its SEND Casework Officer had had “sustained communication” with Mrs Z.
29. I asked about the changes to supervision set out in its complaint response. It advised its SEND team manager holds weekly whole-team briefing sessions with casework officers. These are followed by summary email ‘reminders’ for the individual members of the team. The Council has sent me examples of these that stress the importance of communications with parents.
30. The team manager also holds regular 1:1 casework supervision sessions with team members to help monitor progress against caseloads and ensure cases continue to progress.

Analysis

The November 2022 review

31. The Council says it held a review of X’s EHC Plan in November 2022, in the term X started the school . But that review was flawed as I can see no evidence of any decision on the review’s outcome. Mrs Z says she did not receive any paperwork before the meeting. My decision is there was fault by the Council.

The November 2023 review

32. We expect councils to follow the statutory timescales set out in the law and the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
33. The review of X’s EHC Plan began in November 2023. This means Mrs Z should have received an amendment notice in December and a final revised EHC Plan by 12 February 2024. The Council did not send the amendment notice until early January and the final EHC Plan until May – a delay of nearly 11 weeks. I note that a significant part of the delay was due to the Council seeking provision for a health need X has. But the delay was not in line with the Code and was service failure.
34. The Council has sent me records showing updates to Mrs Z from its caseworker from mid-February 2024 onwards. But it has not sent evidence of updates before this. So I uphold Mrs Z’s complaint about poor communications between December 2023 and February 2024. At a minimum, the Council should have kept in touch with Mrs Z when it missed the deadline for amending X’s EHC Plan.

Not considering the evidence provided for review at the meeting

35. The proper place to challenge the evidence used in the EHC needs assessment would be in an appeal to the Send Tribunal. But the delay in finalising the EHC Plan meant there was an injustice regarding this part of the complaint, due to the delayed appeal rights.

Complaint response

36. I uphold Mrs Z’s complaint that the Council’s stage one response to her complaint advised she would receive an amendment notice by a date the Council did not meet. The Council has accepted fault with this communication.

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Agreed action

37. Within a month of my final decision, the Council has agreed to take the following action.
1. Write to Mrs Z apologizing. 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 in my findings.
2. Make Mrs Z a symbolic payment of:
• £300 for the distress caused by the uncertainty whether things might have been different but for the incorrect review procedure in 2022, including not issuing an amendment notice;
• £300 for the distress caused by the delay, and subsequent delayed right of appeal to the Send Tribunal, following the Council’s November 2023 EHC Plan annual review.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman