Summary: There was fault by the Council in May 2023 as it did not give Ms X a chance to comment on proposed amendments to Y’s Education Health and Care Plan before issuing an amended final Plan. This did not cause significant injustice. We did not investigate complaints about the failure to process an annual review in 2022 as they are late.

The complaint

1. Ms X complained the Council delayed completing the annual review of her son Y’s Education, Health and Care Plan (EHC Plan) after an annual review meeting held by his school (School A) in June 2022.
2. Ms X said this meant Y remained in an educational setting that was not suitable for longer than would have been the case if the Council acted without delay. She said he had a loss of educational provision. She also said the delay caused avoidable inconvenience and distress and exacerbated her depression.

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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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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

7. Ms X complained to us in February 2024. Matters from February 2023 are in time and I have investigated them. Matters before February 2023 are late and I have not investigated them. I explain why in the next paragraph. The key dates are:

Date Event

June 2022 Y’s annual review meeting at School A

July 2022 Decision to maintain/cease/amend EHC Plan was due, (but not made.)

September 2022 Y’s amended EHC Plan would have been due (if the Council’s decision about the review was to amend the EHC Plan).

November 2022 First email contact from Ms X to the SEND Team, chasing for progress on the annual review.

January 2023 The SEND Team told Ms X Y’s case officer had left.

March 2023 Ms X’s MP wrote to the Council.

April 2023 The Council responded to the MP.

October 2023 Ms X complained to the Council.

December 2023 The Council responded to the complaint.

8. It was reasonable for Ms X to have complained to the Council during the school summer holiday in 2022 as she was seeking an alternative placement for Y and had heard nothing from the SEND team following the review meeting in June. Ms X should then have complained to us by October 2022. (which was the deadline for the final amended EHC Plan).
9. I have not investigated events which happened before February 2023 because there is no good reason for the delay in complaining to us.

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How I considered this complaint

10. I considered the complaint to us, the Council’s responses to the complaint and documents set out later in this statement. A colleague discussed the complaint with Ms X.
11. Ms 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

What should have happened

12. A child with SEND may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections including:
• I – the educational placement
• F – special educational provision.
13. 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.

14. 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) 

15. 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.

16. The parent must have at least 15 days to comment and make representations on proposed changes including requesting a particular school (SEN Code paragraph 9.195)
17. If the council decide to continue with the amendments, it must issue the final amended EHC Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196)

What happened

18. Y is autistic and has an EHC Plan. The records indicate he continued to attend School A throughout the period I have investigated, with one-to-one support from a teaching assistant and was educated away from his year group in a different room most of the time because of his sensory needs, with a little small group contact in core subjects when he could tolerate this.
19. Ms X wanted a change of educational placement for Y. Her preferred school (School B) had no vacancies. The Council sent consultation letters to two special schools (Schools C and D) in February 2023.
20. Ms X emailed the new case officer saying she had visited School C and thought it was suitable for Y. School C responded to the consultation in March saying it could not meet Y’s needs.
21. School D told Ms X it had no spaces but would add Y to its waiting list. It told the case officer in March that it was considering the Council’s consultation. It told the case officer in April that it had no spaces and so could not consider Y.
22. There was an annual review meeting at School A at the start of May. The case officer attended.
23. At the end of May, the Council issued a decision to amend Y’s EHC Plan. It issued a final amended Plan for Y at the same time as issuing the decision to amend. Section I named School A as Y’s educational placement. Section I also said “the local authority recognises that a special school placement is appropriate for Y and is working to secure a place as soon as possible”
24. At the start of June, Ms X emailed the Council saying School D had offered Y an assessment. School D offered Y a place in the middle of June 2023
25. The Council issued an amended EHC Plan in June naming School D.
26. Ms X complained to the Council in October 2023 about the matters she has raised in her complaint to us. The Council responded under both stages of its complaints procedure saying it was sorry for the delay in amending Y’s EHC Plan, which was due to shortages in staff. It said it had recruited additional staff to deal with annual reviews.

Was there fault?

27. I make no findings on events before February 2023 as I have not investigated them (see paragraphs seven to nine).
28. The Council had agreed in February 2023 to seek an alternative educational placement for Y and it began consultations. Y’s annual review meeting took place at the start of May 2023. The Council issued a decision to amend at the end of May 2023. This was within four weeks of the review meeting and in line with the timescales in the SEND Regulations and Code of Practice, so there is no fault. However, the Council should have issued an amendment notice with a copy of the existing EHC Plan and a list of proposed amendments and should have given Ms X at least 15 days to provide comments. The Council missed out the parental consultation stage and issued a final EHC Plan. This was not in line with Paragraph 9.195 of the SEND Code of Practice and was fault. However, the final Plan gave Ms X her right of appeal to the SEND Tribunal. And, the Council then issued a second amended final Plan naming School D, which Ms X was happy with. So while Ms X was denied a chance to comment on proposed changes to the Plan at draft stage, the outcome was one she was content with. There is no injustice.

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Final decision

29. There was fault by the Council in May 2023 as it did not give Ms X a chance to comment on proposed amendments to Y’s Education Health and Care Plan before issuing an amended final Plan. This did not cause significant injustice. We did not investigate complaints about the failure to process an annual review in 2022 as they are late.
30. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman