Summary: We upheld Ms X’s complaints. The Council failed to respond to Ms X’s request for an early annual review of her child Y’s Education, Health and Care Plan. It also failed to complete the annual review process within legal timescales and delayed responding to her complaints. The Council has already apologised which is an appropriate remedy.

The complaint

1. Ms X complained the Council:
1. Did not respond to her request for an emergency annual review of her daughter Y’s Education, Health and Care Plan (EHC Plan).
2. Failed to complete the annual review process and to amend the EHC Plan within legal timescales.
3. Delayed responding to her complaints.
4. Did not arrange alternative educational provision when requested despite Y not receiving full-time education.
2. Ms X said Y has been in and out of school since April 2023 and when attending, she does not access education in a classroom. She wants Y to attend a different educational placement.

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The Ombudsman’s role and powers

3. 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)
4. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement and an amendment to these elements of an EHC Plan.
5. If someone has a right of appeal and we consider it reasonable for them to appeal or to have appealed, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
7. 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)
8. 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)
9. 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

10. I have not investigated complaint (d) about the failure to arrange suitable alternative educational provision. This is because the record of Y’s annual review meeting indicates Ms X and professionals working with Y considered her poor attendance and engagement in education was due to the unsuitability of a mainstream school. This is a dispute about the placement in Section I of Y’s EHC Plan. The educational placement named in both of Y’s EHC Plans was appealable to the SEND Tribunal and it is/was reasonable for Ms X to use her appeal rights. The effect of the restriction on our powers to investigate means we cannot remedy missed alternative provision or special educational provision for Y.

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How I considered this complaint

11. I considered the complaint to us, the Council’s responses to the complaint and documents described in this statement. I discussed the complaint with Ms X.
12. 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

Relevant law and guidance

13. The Council has a two stage complaints policy. It aims to provide responses at both stages within 20 working days of receiving a complaint or a request to move from stage one to two.
14. A 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. 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 SEND Code paragraph 9.176) 

16. 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.
17. The parent should have at least 15 calendar days to make representations on proposed changes including requesting a particular educational placement to be named in the Plan.
18. Following parental representations, the council must issue the amended final Plan within eight weeks of the amendment notice.
19. A parent may ask for an early annual review. There is no legal requirement for a council to agree to an early annual review or a right of appeal against a decision to refuse to hold one.
20. Our Principles of Good Administrative Practice set out our expectations of local authorities. We expect councils to make reasonable, timely decisions based on relevant considerations. We also expect them to deal with people promptly and helpfully.

What happened

21. Y has SEN. Her EHC Plan of February 2023 names a mainstream secondary school as her educational placement.
22. Ms X wrote to the Council in July 2023 asking for an early annual review. She explained Y could not go into a classroom and needed a high staff to student ratio (which the mainstream school could not provide). Ms X added Y had been suspended multiple times and the school had suggested Y needed alternative provision. The Council did not respond to Ms X’s request.
23. Y received an autism diagnosis in December 2023.
24. There was an annual review meeting on 25 January 2024. The Council received the papers from Y’s school on 6 February. They included a recommendation for a change of placement.
25. The Council issued a draft amended plan on 27 February.
26. Ms X complained to the Council at the end of February about the matters she has raised with us. The Council’s responses to Ms X’s complaint in March and April accepted it did not respond to her request for an early annual review. It also accepted it had not completed the annual review process within the required timescales. The Council apologised.
27. Ms X said she did not receive the Council’s second response until 9 May (though the date on the letter is 23 April.
28. The Council issued a second draft amended Plan on 1 May and a final Plan on 3 May. The final Plan named the same school as Y’s placement.
29. Ms X complained to us. Since complaining, she has also appealed Y’s placement to the SEND Tribunal.

Findings

Failure to respond to the request for an emergency annual review of Y’s Education, Health and Care Plan (EHC Plan)

30. The Council was at fault. It failed to respond to Ms X’s request for an early annual review. This is not in line with our expected standards for councils and it caused Ms X avoidable distress and frustration. The Council should have given Ms X a response to her request. I cannot say on a balance of probability what the Council’s decision would have been. But there is uncertainty about the outcome had the Council considered the request. This is a form of injustice. The Council has apologised and this is an appropriate remedy.

Failure to complete the annual review process and to amend the EHC Plan within legal timescales

31. The Council should have issued an amendment notice with proposed amendments within four weeks of the annual review meeting – so by 23 February. It missed this deadline by four days, which is fault, but the injustice is not significant. The whole process of amending and finalising the Plan should have been completed within 12 weeks of the date of the annual review meeting – so in this case by 18 April. The Council missed this deadline by two weeks, again this is fault, but an insignificant injustice. The Council has apologised and this is an appropriate remedy.

Complaint handling

32. The Council responded outside the 20-working day timeframe, but the delay was slight and the injustice not significant.

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Final decision

33. W upheld Ms X’s complaints. The Council failed to respond to Ms X’s request for an early annual review of her child Y’s Education, Health and Care Plan. And it failed to complete the annual review process within legal timescales. There was also a delay in responding to her complaints. The Council has apologised and this is an appropriate remedy.
34. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman