Summary: Mr X complained the Council has failed to adhere to statutory timescales and said there has been safeguarding issues with his son’s provision. He also said the Council has failed to properly consider his complaint. We find the Council was at fault for failing to consider annual reviews within the statutory timescales. This caused uncertainty to Mr X and delayed his right of appeal. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mr X, complains the Council has failed to adhere to statutory timescales and said there has been safeguarding issues with his son’s provision. He also said the Council has failed to properly consider his complaint.

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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. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
11. 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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What I have and have not investigated

12. I have investigated whether the Council has failed to adhere to statutory timescales and whether it failed to properly consider Mr X’s complaint.
13. I have not investigated the Council’s decision to make amendments to the EHC Plan or whether there have been any safeguarding issues with Mr X’s son’s provision. This is because Mr X has appealed the Council’s decision to make amendments/deletions. I note that Mr X said the safeguarding concerns were because of the amendments made to the EHC Plan. As stated in paragraph six, this is outside our jurisdiction.
14. As stated in paragraph 9 we cannot investigate late complaints unless we decide there are good reasons. I have exercised discretion to investigate from March 2022 when the annual review was held. This is because I consider the injustice to have been continuing until the 2023 review.

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How I considered this complaint

15. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
16. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

17. 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

18. 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.
19. 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) 
20. 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.

Summary of the key events

21. Mr X’s son, Y, has an EHC Plan. An annual review of the plan was held in March 2022 and Y’s school sent the Council the paperwork shortly after.
22. A further annual review was held on the 19 June 2023. The Council told the school the review from March 2022 was now on the system. It said it would process both reviews together. It asked the school to make any changes to the June 2023 review in a different colour.
23. On the 10 July 2023, the school told the Council that Mr and Mrs X had asked for a longer amount of time for the annual review to be sent to the Council. But the Council explained it would need the paperwork before the school holidays as schools should submit the documents within two weeks of the annual review.
24. The school sent the Council the annual review paperwork on the 19 July 2023 and the Council issued a draft EHC Plan on the 30 August 2023.
25. In the following month, Mr X raised several concerns with the draft EHC Plan. The Council said it would review his request.
26. In early October 2023, Mr and Mrs X sent the Council a letter detailing their concerns about the draft EHC Plan. This included large chunks of information detailing Y’s educational needs being removed.
27. The Council tried to arrange a meeting with Mr and Mrs X to discuss their concerns. But Mrs X requested a full response to each concern in writing. This was provided by the Council shortly after.
28. Mr X sent in his amendments to the plan in October 2023. The Council finalised the EHC Plan shortly after on the 26 October 2023.
29. Mr X declined a meeting to discuss the final EHC Plan. He told the Council he had further concerns he would like to discuss and said he would be in touch. He asked for the contact details for the person responsible for safeguarding, as well as the details for the person responsible for receiving whistleblowing complaints.
30. The Council said the meeting would have given him the chance to discuss his concerns. It said it had incorporated the changes to the plan following the annual review and the annotations that school provided, along with Mr X’s proposed amendments. It gave Mr X the details he had requested.
31. In December 2023, the Council said it was continuing to seek an appropriate setting for Y from September 2024. It said it would update Mrs X prior to the phase transfer deadline which was the 15 February 2024.
32. A school placement was agreed and named in Y’s EHC Plan on the 5 February 2024.

Complaint to the Council

33. In Mr X’s complaint to the Council, he said:
• there was a failure to process Y’s year five EHC Plan;
• the Council’s demand that the year five and six annual review amendments be amended together and in the same format was inappropriate. He said this led to errors being made and large amounts of professional time being spent;
• the Council’s revisions to the school’s draft EHC Plan were not properly identified. He said the changes were suggested as minor which they were not;
• the deletions and amendments made by the Council were unnecessary, unhelpful to those educating Y, unlawful and potentially harmful to Y. He said this was a safeguarding concern around the manner and approach of case officers;
• the revisions to the plan meant a school would not offer Y a place until a revised EHC Plan be submitted; and
• the Council did not address the concerns when they were submitted.
34. In response, the Council said:
• Y’s year five annual review was held on the 16 June 2023 and the Council received the paperwork from the school on the 19 July 2023 as they had requested additional time. The draft plan was issued on the 18 September 2023, followed by the final EHC Plan on the 27 October 2023. It said it failed to tell parents of its intention to amend the plan within four weeks and apologised;
• an annual review was held in March 2022 and the council failed to notify parents of the intention to maintain, amend or cease the plan. It said it did not accept that asking the school to make amendments to both reviews to be unwieldy or difficult. It also said it could not comment on whether it led to errors;
• the draft EHC Plan issued in September 2023 was in the format adopted by the Council. The changes were significantly and closely aligned to those suggested in the annotated plan produced by the school. It said there was no evidence to imply the changes were minor;
• the Council did not accept that the amendments were unhelpful, unnecessary unlawful, or harmful. It said Mr X was entitled to appeal if he was unhappy with the EHC Plan which it noted he had done;
• the Council received Mr X’s email with his concerns about the draft plan on the 28 September and offered a meeting which Mr X was unable to attend. It proposed a further date in October which Mr X declined. It said it was not possible to offer further dates due to the requirement to produce a final EHC Plan;
• regarding Mr X’s complaint alleging the school had declined to process the application unless a revised plan was submitted, it disagreed. It said the school made no reference to concerns regarding the contents of the EHC Plan or a request to provide a revised plan;
• the nature of Mr X’s complaint regarding the actions of council officers did not fall within the scope of a safeguarding concern. It provided clarity on the definition of safeguarding. It said the team do not have direct contact with children and their actions cannot therefore directly cause harm to children; and
• it has fulfilled its obligations in respect of produced a final EHC Plan for the phase transfer within the statutory timescales.
35. Overall, the Council said it had reviewed its procedures in light of the complaint. It had engaged in whole team training relating to the statutory timescales attaching to the processing of an annual review. It said this was to ensure future reviews are processed without delay.

Analysis- was there fault by the Council causing injustice?

36. The Council failed to act on the March 2022 review. It did not consider this review until the following year. This is fault. Guidance states 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. This caused uncertainty to Mr X and delayed his right of appeal.
37. There was a further review on the 19 June 2023. The school sent the Council the paperwork on the 19 July 2023. Guidance states schools must send the annual review report to the Council within two weeks of the meeting. In this case the school asked the Council for an extension at the request of Mr and Mrs X. We therefore could not criticise the Council for agreeing to this.
38. But as stated above the school had two weeks to send the Council the paperwork. But it did not ask for the extension until the 10 July 2023 which was three weeks after the review. The Council maintains overall responsibility for the annual review process. Therefore, we would have expected it to have chased the school for the paperwork sooner. This is fault. But I do not consider this to have caused significant injustice to Mr X. This is because he had asked the school for an extension.
39. After the Council received the review paperwork on the 19 July 2023, it issued the draft on the 30 August 2023. This is fault and not in line with the statutory guidance. The Council has acknowledged this in its complaint’s response. It has also stated training has been carried out. But this did cause further uncertainty to Mr X and further delayed his right of appeal.
40. Mr X said the Council has failed to properly consider his complaint. I have detailed Mr X’s complaint in paragraph 33 and the Council’s response is in paragraph 34. In my view the Council has properly considered Mr X’s complaint and provided a detailed response. I do not find fault with the Council’s complaints response.

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Agreed action

41. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mr X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mr X £300 to acknowledge the uncertainty caused to him by the failure to consider the reviews within the statutory timescales; and
• provide evidence of the training provided in light of Mr X’s complaint.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman