Summary: Miss X complains the Council has not dealt properly with her son Y’s Special Educational Needs. The Council has not completed annual reviews for her son’s Education Health and Care Plan. Miss X suffered avoidable distress and her son missed special educational needs provision. The Council has agreed to apologise, pay Miss X £200 for distress, pay Miss X £6,000 for missed provision and review its processes.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has not completed annual reviews of her son Y’s EHCP since 2020.
2. Miss X says she has suffered uncertainty and avoidable distress and Y has missed special educational needs (SEN) provision.

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The Ombudsman’s role and powers

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 an injustice, 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. I have investigated that part of Miss X’s complaint about how the Council has dealt with Y’s EHC Plan annual review from July 2021.
8. I have not investigated any earlier time period because Miss X could have complained about previous annual reviews not being completed and this is a late complaint.

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How I considered this complaint

9. I spoke to Miss X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
10. Miss X and the Council and the organisation 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

Law, guidance and policies

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 has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
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 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.
15. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
16. 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) 
17. 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.
18. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. (SEN Code paragraph 9.195) 
19. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. (SEN Code paragraph 9.196) 

What happened?

20. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
21. Y received a EHC Plan in March 2019. This was reviewed in October 2019.
22. The Council started an EHCP annual review in July 2021.
23. Miss X complained to the Council in 2022 that the 2021 review had not been completed.
24. Y’s EHC Plan was reviewed in July 2023.
25. Miss X again complained to the Council about the annual review not being finalised in February 2024.

Analysis

26. The Council provided EHCP annual review documents from 2021. It is clear this annual review was not completed properly. It is accepted that Miss X complained in 2022 that it had not been completed. The Council says a decision was made to maintain the plan without any changes. It has not provided any evidence to show this decision was communicated to Miss X in accordance with the SEND code of practice. On the balance of probabilities, the Council did not do this. This is fault by the Council. Miss X suffered uncertainty and avoidable distress as well as the loss of her right of appeal. However, on the balance of probabilities there was no loss of SEN provision at this time.
27. Miss X complained about the 2021 annual review being incomplete in July 2022. The Council accepts it did not respond to her complaint. This is fault by the Council. Miss X did not receive a response to her complaint and suffered uncertainty and avoidable distress.
28. The Council should have then completed a further annual review by July 2022. The next EHCP actually took place in July 2023 and remains incomplete due to a delay waiting for an Educational Psychologist’s report.
29. The Council accepted in its complaint response that it had not informed her of the outcome of the July 2023 annual review and that communications to it from her about the review outcome had not been responded to. It upheld her complaint. This is fault by the Council. Miss X has suffered uncertainty and avoidable distress as well as the delays to her right of appeal. Y has had his SEN review further delayed by over two years. (6 terms).
30. I have reviewed Y’s amended EHC Plan dated July 2024, this shows numerous additions to his Section F SEN provision of daily provision over and above the October 2019 version. On the balance of probabilities, these inclusions would have taken place from 2022 and Y has therefore missed out on SEN provision for approximately two years.
31. The Ombudsman’s Guidance on Remedies says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.”

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Recommended action

32. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss X for the failure to complete annual reviews of her son’s EHC Plan. 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.
• Pay Miss X £200 in respect of uncertainty and avoidable distress.
• Pay Miss X £6,000 in respect of Y’s missed special educational needs provision, based on the current changes to his EHC Plan, at a rate of £1,000 per term, over 2 years (6 terms).
• Review its processes and provide guidance to staff to ensure that EHC Plan annual reviews are undertaken within the statutory timescales.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have found fault by the Council, which caused injustice to Miss X. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman