Summary: Miss X complained the Council failed to carry out annual reviews and subsequently did not issue updated Education, Health and Care Plans for her daughter. Miss X says her daughter was unable to access additional support at school as a result. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy and carry out service improvements to prevent a reoccurrence.

The complaint

1. Miss X complained the Council failed to carry out annual reviews and subsequently did not issue updated Education, Health and Care Plans for her daughter. Miss X says her daughter was unable to access additional support at school as a result, and that this may have negatively impacted the outcome of her exams. Miss X would like the Council to acknowledge its actions and make improvements to its service to ensure the same thing does not happen again.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. My enquiries included looking at events dating back to May 2019. However, the period of my investigation is from 31 March 2021 to 14 May 2024.
8. My investigation does not cover the period before 31 March 2021 because this period is late, and there are no good reasons to exercise discretion. My investigation does not cover the period after 14 May 2024 because this period is after the Council’s final complaint response.

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How I considered this complaint

9. I considered the evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
10. Miss X and the Council had an opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

11. 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. 
12. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Special Educational Needs and Disability Code of Practice (the Code) paragraph 9.176) 
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
14. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. The Council issued a final EHC Plan for Miss X’s daughter, Y, in May 2019. This stated the views obtained from Miss X and Y and set out Y’s agreed special educational provision. The EHC Plan named a specialist school, School A, as the educational setting for Y and stated that the next review of the plan would take place on or near its anniversary, in the Summer term of 2020.
17. The Council says School A held an annual review of Y’s EHC Plan on 31 March 2021.
18. On 5 December 2023, School A held an annual review of Y's EHC Plan. Miss X and Y attended the review meeting.
19. On 6 December 2023, Miss X complained to the Council. She said the Council issued the EHC Plan in 2019 but had missed three subsequent annual reviews. Miss X said she attended the annual review at School A on 5 December 2023 and raised concerns that an annual review had not previously been carried out. Miss X said she had never attended an annual review before. She said during the meeting on 5 December 2023, School A found an annual review document from 2021; Miss X said this document was not previously shown to her. She said following the meeting, she called the Council’s SEND team who confirmed it only held documents from 2019 and 2021. Miss X said she felt the Council and School A had let Y down.
20. In January 2024, Miss X contacted the Council as she had not received a complaint response. The Council replied on 11 January 2024 and told Miss X it would make sure it sent its response when it was available.
21. On 30 January 2024, the Council notified Miss X of its annual review decision, stating it would amend the EHC Plan.
22. The Council issued its stage one complaint response on 22 February 2024. It acknowledged the issue of Y’s EHC Plan in 2019, and acknowledged the Children and Families Act 2014 expects EHC Plans to be reviewed at least every year. The Council confirmed it only held annual review paperwork for Y’s EHC Plan from March 2021 and December 2023. The Council said it delegates the responsibility of arranging EHC Plan annual reviews to the relevant educational settings. It apologised for any inconvenience or distress caused and said it was in the process of completing a project to improve its monitoring of when annual reviews take place, to prevent such oversights happening again.

What happened next

23. Miss X escalated her complaint to the next stage of the Council’s complaints procedure.
24. The Council issued Y’s amended final EHC Plan on 21 March 2024.
25. On 29 April 2024, the Council produced a stage two review report regarding Miss X’s complaint. The report acknowledged a failure to conduct reviews and acknowledged this was contrary to the Code. It said the Council delegates responsibility for conducting annual reviews to schools but acknowledged in this case, delegation was not successful. The report stated the Council fully accepted it was responsible for this. The report acknowledged Miss X considered the lack of annual reviews may have led to Y not receiving additional support. However, it said it could not be known if Y’s EHC Plan would have been different had it been reviewed earlier.
26. The Council issued its final complaint response and a copy of the stage two review report to Miss X on 14 May 2024. It upheld Miss X’s complaint and apologised that annual reviews were not held within the required timeframes. The Council offered to meet with Miss X to discuss the matter further and offered a financial remedy in recognition of the time and trouble caused.
27. Miss X remained dissatisfied with the Council’s response and brought the complaint to us. Miss X said she did not accept the financial remedy offered by the Council.

Analysis

28. The Council says it accepts it failed to ensure annual review meetings took place on time. It says it delegated responsibility to School A to arrange the annual review meetings, but it failed to do so.
29. Councils can delegate the holding of the review meeting to a school. However, councils remain responsible for the overall review process. The review meeting is just one part. We expect councils to ensure reviews are held on time, and that they chase up schools that fail to provide documentation after a review meeting to enable it to complete the review on time.

The 2021 annual review

30. The Council holds paperwork for an annual review held on 31 March 2021. Miss X says she was not involved in this review; she says the paperwork from this review was not shown to her until the annual review held on 5 December 2023.
31. The 2021 review paperwork states Miss X was present at the time of the review. I acknowledge Miss X firmly disputes this. I have considered Miss X’s comments and have reviewed the evidence provided by both parties regarding this matter.
32. The Council’s stage two review report states the review held in December 2023 “was the first to which [Miss X] had been invited”. The report states this as one of several “facts – which appear not to be in dispute”. In addition, the final EHC Plan issued in March 2024 lists the history of advice and information used in the creation of the plan. The list refers to advice and information dating back to 2018 but does not include or refer to any input from Miss X or Y in relation to the 2021 annual review.
33. Having reviewed the above evidence, it is more likely than not Miss X was not included in the review which is said to have taken place on 31 March 2021. This is because:
• Miss X states she had no involvement in the 2021 review,
• the Council’s stage two complaint report states it is a fact Miss X was not invited to a review meeting prior to 2023, and
• the 2024 final EHC Plan does not list information obtained from Miss X in 2021 as part of the relevant appendix.
34. The Code says reviews must be undertaken in partnership with the child and their parent or the young person, and must take account of their views, wishes and feelings. The evidence indicates the Council did not ensure the review in 2021 was undertaken in partnership with Miss X. This is fault.
35. The Council acknowledges it did not send a decision letter to Miss X following the annual review in March 2021, and acknowledges this was an error. The failure to issue a decision letter to Miss X was not in line with the Code. This is fault.

The 2023 annual review

36. School A carried out an annual review of Y’s EHC Plan on 5 December 2023. The most recent annual review prior to this is recorded as taking place on 31 March 2021.
37. As previously stated, councils must arrange for EHC Plans to be reviewed at least once a year to make sure it is up to date. Councils must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The evidence shows a period of 33 months between annual reviews for Y’s EHC Plan. This is significant delay and is fault.
38. Following the annual review on 5 December 2023, the Council issued its decision letter to Miss X on 30 January 2024. This is more than four weeks after the annual review meeting. This is not in line with the timeframe specified in the Code and is therefore fault.

The Council’s complaint handling

39. The Council has a two stage complaints procedure. At stage one, the Council says it aims to provide a complaint response within 10 working days. If this is not possible, the Council says it will provide an update within 10 working days with an estimate of the likely timescale for a response.
40. Miss X made her initial complaint on 6 December 2023. The Council provided its stage one complaint response on 22 February 2024. This timeframe is greater than 10 working days and is therefore not in line with the Council’s complaints procedure. This is fault.

Injustice to Miss X and Y

41. It is positive the Council identified a failure to arrange annual reviews as part of its own complaint investigation. It is also positive the Council apologised to Miss X for this as part of its complaint response. However, the Council’s response to Miss X does not fully address the extent of the fault identified, or the injustice to Miss X and Y.
42. Miss X says the Council’s actions caused an injustice to Y because the annual review held in 2023 identified that she needed additional support. She says had the reviews been carried out earlier, this may have identified the additional support sooner, resulting in Y receiving additional support prior to taking her exams.
43. I acknowledge Miss X’s comments, but it is not possible to determine whether additional support would have been provided sooner, had the reviews taken place at the correct time. This is because the outcome of any reviews which did not take place is speculative. However, had the annual reviews taken place at the correct times, Miss X would have been provided with a right to appeal a decision to either maintain the EHC Plan with no changes, or to appeal a final EHC Plan if she disagreed with the provision. The injustice therefore is the uncertainty and distress at the loss of opportunity caused as a result of the delays identified. The delay identified as part of the complaint handling process also incurred additional time and trouble to Miss X.

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Action

44. To address the injustice identified, the Council has agreed to take the following action with one month of the final decision:
1. Provide an apology to Miss X and Y for the fault identified. 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 a symbolic payment of £500 for the benefit of Y in recognition of the distress and missed opportunities;
3. Make an additional symbolic payment of £250 to Miss X in recognition of the time and trouble caused;
4. Remind staff that annual reviews must be undertaken with the child and their parent or young person and must take account of their views;
5. Remind staff that the first review of an Education, Health and Care Plan must be held within 12 months of the date it was issued, and then within 12 months of any previous reviews;
6. Remind staff the Council must notify the child’s parent or the young person of its decision following an annual review within four weeks of the review meeting, and
7. Remind staff to adhere to the Council's complaints procedure.
45. The Council has agreed to take the additional following action by the end of June 2025:
1. Provide a report to the relevant committee explaining the action taken by the Council following the issues identified as a result of this complaint, together with an update on the impact of those actions.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I have found fault by the Council causing injustice. The Council has agreed to take the above action to resolve this complaint and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman