Summary: Mrs C complained the Council did not follow statutory timeframes for completing an annual review and it communicated poorly throughout the process. We have found the Council at fault for failing to issue a final Education, Health and Care Plan following an annual review. To remedy the injustice caused, the Council has agreed to apologise to Mrs C and make a symbolic payment of £300.

The complaint

1. Mrs C complained the Council:
• Did not follow the statutory timeframes for completing an annual review.
• Communicated poorly throughout the annual review process.
• Allocated the management of her son’s Education, Health and Care Plan (EHCP) to the wrong Council.
• Failed to follow the correct process for completing school consultations.
2. Mrs C says her mental and physical health have been impacted and her ability to work has been affected. She says her son, X, remains in an unsuitable school which cannot meet his needs, and his mental health has been impacted. Mrs C would like the Council to place X in a suitable school and ensure he has a suitable placement for September 2025. Mrs C would also like to be compensated for the injustice she has experienced.

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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. 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. 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)
6. 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)
7. 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

8. I have exercised discretion to investigate the annual review process which took place following an annual review meeting in June 2022. This is because a final amended plan was not issued until August 2023 which is within the twelve month complaint period.
9. I have not investigated Mrs C’s complaint about the way the Council completed the school consultations as this is closely linked to section I of the EHC Plan which Mrs C could appeal to the SEND Tribunal following the issue of a final EHC Plan in August 2023.

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How I considered this complaint

10. I discussed the complaint with Mrs C and considered the information she provided.
11. I made enquiries of the Council and considered its response.
12. Mrs C and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Legal and administrative background

Education health and Care plan

13. 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.

Annual review process 

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. 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) 
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.

What happened

17. An annual review meeting took place in June 2022. The Council should have issued its decision and proposed amendments by July 2022. The Council should have issued a final amended plan by September 2022.
18. Following the annual review meeting in June 2022 the Council issued two proposed amended drafts in January 2023 and May 2023.
19. The Council did not issue a final EHC Plan until August 2023, following another annual review meeting which took place in July 2023.
20. The only substantial change between the previous plan and the plan issued in August 2023 was an increase in teaching assistant support. I have seen evidence the school provided this support from June 2022 so the delay in issuing the plan did not prevent X from receiving special educational provision.
21. I have seen no evidence Mrs C appealed the final plan issued in August 2023.
22. During the annual review process the Council moved the management of X’s EHC Plan from one district team to another. The Council told us the move was due to it completing a restructure within its Special Educational Needs and Disability (SEND) service.
23. Between June 2022 and August 2023 correspondence between the Council and Mrs C was sporadic. The Council regularly failed to respond to Mrs C when she asked for updates and information.

My findings

24. The Council failed to follow the statutory timeframes for completing the June 2022 annual review. This caused Mrs C frustration, uncertainty and distress but did not prevent X from receiving special educational provision.
25. There is no fault in the Council moving the management of X’s ECH Plan between its district teams. The Plan remained under the correct Council and there is no evidence to suggest this move added to the delays.
26. The Council’s communication with Mrs C was poor throughout the annual review process. This added to the distress, frustration and uncertainty Mrs C experienced.

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Agreed action

27. Within one month of the final decision the Council will:
• Apologise to Mrs C for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £300 to Mrs C to recognise the frustration, distress and uncertainty caused by the delay in issuing a final EHC Plan and the added frustration of poor communication from the SEND caseworker.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman