Summary: Mrs X complained about the Council’s handling of the Annual Review of her child’s Education, Health and Care Plan, which impacted her child’s education, her health and her family’s lives. We found avoidable delays by the Council, which caused Mrs X distress. To put matters right, the Council agreed to apologise to Mrs X and make financial redress of £550.

The complaint

1. Mrs X complained about the Council’s handling of the 2023 Annual Review of her child’s (in this statement known as ‘C’) Education, Health and Care Plan (EHC Plan) because:

• it delayed issuing an amended EHC Plan for C after the review meeting;
• it failed to name her preferred or any school for C’s secondary education placement; and
• its communication during the review process was inadequate.

Mrs X also complained about the Council’s complaint handling.

2. Mrs X said the amended final EHC Plan omitted some educational provision C needed, which affected C’s education. The delays also affected her health and her family’s lives. Mrs X wanted the Council to accept it had delayed and failed to meet legal timescales for Annual Reviews. Mrs X also wanted the Council to explain why the delays occurred and what it would do to prevent such delays in future.

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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 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 the final decision on this complaint 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. Mrs X’s complaint included her concerns about the contents of the amended final EHC Plan the Council issued following the 2023 Annual Review. Mrs X used her right to appeal to the SEND Tribunal about C’s educational needs and the educational provision set out in the amended final EHC Plan. Mrs X also appealed against the failure to name a specific school in the amended final EHC Plan. I therefore could not investigate these parts of Mrs X’s complaint (see paragraphs 1, 2 and 4 of this statement). Rather, the focus of my investigation was on the time taken by the Council to complete the Annual Reviews of C’s EHC Plan in 2023 and 2024 and its complaints handling.

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How I considered this complaint

9. I considered evidence provided by Mrs X and offered to discuss the complaint with her. I also considered evidence provided by the Council and relevant law, policy and guidance. I gave Mrs X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Special Educational Needs

10. A child or young person with special educational needs may have an 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 SEND Tribunal or the council can do this. 

11. The council must arrange to review the EHC Plan 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.

12. Within four weeks of a review meeting, the council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent 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. (See section 22(2) Special Educational Needs and Disability Regulations 2014 (the SEND Regulations) and the Government’s Special Educational Needs and Disability Code of Practice, 2015 (the SEN Code) paragraph 9.194). Case law sets out this should also happen within four weeks of the review meeting. And any amended final EHC Plan must be issued within 12 weeks of the review meeting to complete the review. (Section 20(10) of the SEND Regulations and SEN Code paragraph 9.176) 

The Council’s complaints procedure

13. The Council has a two stage complaints procedure. At stage 1 the relevant manager aims to respond to the complaint within 20 working days. The complainant has 20 working days to tell the Council if and why the response is unsatisfactory. The Council then has 5 working days to tell the complainant it:

• will issue a further stage 1 response within 10 working days, or
• will investigate the complaint at stage 2, or
• has completed its consideration of the complaint and give reasons for not investigating at stage 2.

14. If the Council decides to investigate at stage 2, it aims to respond in 25 working days or up to 65 working days in complex cases. The relevant service Director or Assistant Director will issue the Stage 2 response.

What happened

15. An Annual Review meeting for C’s EHC Plan took place in Spring 2023. The evidence showed C’s school emailed the report of the meeting to the Council about four weeks later. (The Council changed its procedures and the school’s email was not passed to and received by C’s caseworker.) A few months later, Mrs X chased the Council for an update. This led the Council to ask C’s school to resend the information, which meant the Council then received it over five months after the meeting. The Council then quickly told Mrs X it intended to amend C’s EHC Plan and issued a draft amended EHC Plan for comments. Over the following four months, the Council consulted several schools, both mainstream and specialist, seeking a place for C from September 2024. With no school consulted offering a place to C, the Council issued an amended final EHC Plan saying C’s existing school placement would continue until C transferred to a specialist school in September 2024. (Mrs X disputed what the Council said and pointed to an email sent to the Council.) Mrs X, not satisfied with the contents of the amended final EHC Plan and failure to name her preferred specialist school, used her right to appeal to the SEND Tribunal.
16. Shortly before the Council issued the amended final EHC Plan, Mrs X had complained to the Council about the delayed Annual Review. Mrs X said the delay denied her the opportunity to appeal against changes the Council was refusing to make to C’s EHC Plan. Mrs X also complained about the Council’s communication saying it was sporadic and it had wrongly told her she had to choose mainstream schools as well as her preferred, specialist, school for C.
17. About 5 weeks later, the Council, apologising for its delay and any inconvenience caused, acknowledged the complaint and said it would contact the service manager to secure a response.
18. The Council responded about 3 weeks later referring to the late receipt of the report of the Annual Review meeting. The Council also said it had not heard from Mrs X in response to the draft amended EHC Plan it issued and so it had started to consult several schools. (Mrs X disputed this and provided an email to the Council sent a few days after the Council issued C’s draft amended EHC Plan. In the email Mrs said the draft ‘seemed appropriate’ and asked how long it would take to complete the process.) The Council said it could not secure a place for C as none of the schools, including that preferred by Mrs X, offered C a place. It had then issued the amended final EHC Plan saying C’s existing school placement would continue until C transferred to a specialist school in September 2024. (Mrs X said, while it had not offered a place, the Council should have named her preferred school in C’s amended final EHC Plan.) The Council referred to Mrs X’s appeal and said it could not address, through its complaint procedure, matters before the SEND Tribunal.
19. Mrs X asked for a stage 2 investigation. Mrs X said, while the Council had apologised it had not clearly accepted its delay or explained why the delays happened. It had also not said how it would prevent future delays but just signposted her to its SEND action plan. Mrs X also pointed out the 2024 Annual Review of C’s EHC Plan was now overdue. Five working days later, the Council told Mrs X it would issue a further stage 1 reply.
20. The SEND Tribunal hearing took place. At the hearing, the Council and Mrs X’s preferred school, having further discussed extra funding and support, confirmed C had been offered a place. The SEND Tribunal issued its decision, further amending C’s EHC Plan and naming Mrs X’s preferred school for C from September 2024.
21. Meanwhile, Mrs X had not received a further stage 1 reply within 10 working days (see paragraph 13). So, about a week later, Mrs X chased the Council for its response. The Council sent its further stage 1 response a few days later. It apologised for its delay in issuing its original stage 1 response, which it accepted was dated about two weeks earlier than it was sent. The Council accepted C’s school had originally sent C’s Annual Review paperwork within a month of the 2023 meeting. The Council also referred to the SEND Tribunal’s decision, which said the Council would soon start the 2024 Annual Review process (although the Council included an incorrect date). The Council also apologised for not responding to all Mrs X’s contacts and said it had faced challenges, including staff on long term sick leave. The Council outlined the steps it would take to learn from the complaint. It also referred Mrs X to its action plan for its SEND services, which included work aimed at improving its communication and to meet Annual Review timescales.
22. While Mrs X recognised the Council would speak to C’s caseworker about communication and look to learn from what happened, its further reply did not satisfactorily address all her concerns. Mrs X wrote again to the Council and asked it to investigate her complaint at stage 2. A few days later, the Council offered to meet with Mrs X to try to resolve her concerns. Mrs X replied, saying she did not consider a meeting would help compared to a written response. The Council then told Mrs X it would not consider her complaint at stage 2 as an investigation would not shed further light on matters. The Council signposted Mrs X to the Ombudsman. The Council also said it had fed back Mrs X’s concerns about communication to C’s caseworker.
23. Mrs X came to the Ombudsman. (Since Mrs X complained to us, the Council has issued an amended final EHC Plan reflecting the SEND Tribunal’s decision and held the 2024 Annual Review meeting.)

What the Council said

24. In responding to us, the Council recognised it had not complied with the relevant time targets in the 2023 Annual Review of C’s EHC Plan (see paragraphs 11 and 12). It could not explain the delay, which it accepted was avoidable. It also accepted it had no evidence it had chased C’s school for the review paperwork. The Council explained its officers had extremely high caseloads and it was also then facing a high absence levels. The Council also recognised officers had wrongly thought Annual Reviews should be put on hold when there was an undecided appeal to the SEND Tribunal. It had corrected this officer misunderstanding and, belatedly, arranged the 2024 Annual Review meeting for C’s EHC Plan.
25. The Council referred to its action plan, which aimed to improve its SEND services. In response to what had happened in C’s case, it had taken further steps to improve its Annual Review process and compliance with legal timescales. For example, it had:

• Formed an Annual Review Hub to monitor and respond to review paperwork.
• Reviewed and updated its procedures to support the Hub in improving Annual Review response times.
• Recruited extra officers to reduce individual caseloads and so help improve timescales and communication when handling Annual Reviews.

The Council said the Hub had already led to improvements in completing draft and final amended EHC Plans on time following an Annual Review.

26. On communication, the Council said, aside from one email, it found no unanswered correspondence from Mrs X.
27. The Council also said it had apologised to Mrs X for its delay in responding to her stage 1 complaint. The Council recognised it had taken 22 working days to provide a further response to Mrs X’s complaint. The Council confirmed it had not investigated Mrs X’s complaint at stage 2 as it considered its earlier response addressed her concerns and an investigation would not add anything further.

Consideration

Introduction

28. As a publicly funded body we must be careful how we use our resources. We do not try to address every point raised in a complaint or answer every question a complainant may have about what a council did. Rather, we conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we may not respond to complaints in the level of detail people might want. Accordingly, this statement does not, and does not need to, address or resolve every issue raised in Mrs X’s correspondence with the Council. My investigation focused on whether there was evidence of fault having potential to cause significant injustice in the Council’s handling of the 2023 Annual Review of C’s EHC Plan. I also considered Mrs X’s concerns about delay in starting the 2024 Annual Review, which review took place after Mrs X brought her complaint to the Ombudsman.

Delay

29. The evidence showed the Council did not complete the 2023 Annual Review of C’s EHC Plan within 12 weeks of the 2023 review meeting. Rather, it took the Council 38 weeks from the 2023 review meeting to issue C’s amended final EHC Plan.
30. C’s caseworker at the Council did not receive the report of the C’s 2023 Annual Review meeting for about five months. However, good administrative practice needed the Council quickly to chase C’s school for the necessary paperwork if it was not available within two weeks of the meeting. I therefore acknowledged the Council’s acceptance the delays in completing C’s 2023 Annual Review were avoidable.
31. Overall, there was significant avoidable delay by the Council in carrying out the 2023 Annual Review, which was fault. I found the avoidable delay in completing the 2023 review of C’s EHC Plan would likely have been frustrating for Mrs X. It also delayed her ability to appeal any amended final EHC Plan issued by the Council. I therefore found the Council’s fault caused injustice.
32. Mrs X said the delay caused the greater injustice of denying C a place at her preferred school in September 2023 rather than September 2024. I considered what would likely have happened if there had been no avoidable delay in carrying out the 2023 Annual Review. I found the Council would likely have consulted Mrs X’s preferred school about a place for C in summer term 2023. A school move in September 2023 would not have been a key transition year for C. That is, C would not be transferring from primary to secondary or secondary to further education. A place would need to be available for C in an existing established school year group. On balance, I found the evidence did not show that, but for the delay, C would likely have secured a place and moved school in September 2023. However, I recognised the avoidable delay in completing the 2023 Annual would cause uncertainty here for Mrs X.
33. Mrs X’s complaint to the Council also raised delay in carrying out the 2024 Annual Review of C’s EHC Plan (see paragraph 19). The 2024 Annual Review meeting eventually took place over 14 months after the 2023 meeting. So, there was delay, which was fault. However, C’s EHC Plan was then before the SEND Tribunal and further amendments to its contents were being agreed by the Council and, later, imposed by the SEND Tribunal. The SEND Tribunal also dealt with that part of Mrs X’s complaint that I did not investigate by naming her preferred school in C’s EHC Plan. On balance, given these circumstances, I did not find the delayed 2024 Annual Review caused significant personal injustice. However, I recognised it would likely have added to Mrs X’s general frustration with the Council’s SEND service.
34. I also considered whether I should recommend any service improvements to the Council given its delays in handling C’s 2023 and 2024 Annual Review. However, I found no good reason to do so at this point given the steps already taken by the Council to improve its service (see paragraph 25).

Communication

35. Mrs X said the Council’s communication during the review was inadequate. Mrs X pointed to the Council telling her she had to name a mainstream school for C’s EHC Plan in addition to her preferred specialist school. Mrs X also referred to the Council’s delayed complaint response. While the Council said it had told C’s caseworker about Mrs X’s communication concerns, it told us it found only one unanswered email from Mrs X (see paragraph 26). However, in responding to a draft of this statement, Mrs X provided evidence of added poor communication and a Council letter apologising for its communication (see paragraph 21).
36. The evidence showed the Council had accepted failings in its communications, which it confirmed had been raised with the relevant caseworker (see paragraphs 21 and 22). I therefore found the Council at fault in communicating with Mrs X. This would likely have been frustrating for Mrs X. I therefore found the fault caused injustice.

Complaints handling

37. Mrs X was dissatisfied with the Council’s complaint handling, including its refusal to carry out a stage 2 investigation. The Council accepted there were delays and said it had apologised to Mrs X.
38. The failure to meet its publicised time targets for responding to complaints was a key issue in the Council’s complaints handling. I saw no evidence to suggest the delay was unavoidable or the Council had let Mrs X know it needed more time to reply. In not meeting its time targets and failing to update Mrs X about the delay, I found the Council at fault. However, the Council was entitled to refuse a stage 2 investigation of Mrs X’s complaint. And it gave Mrs X a reason for not carrying out a stage 2 investigation. This was in line with the Council’s complaints procedure (see paragraphs 13 and 22) and so I found no fault here. But, the delay in responding to Mrs X’s complaint would likely have added to Mrs X’s frustration with the Council’s SEND services and so caused injustice. I also found the apologies already given by the Council while handling Mrs X’s complaint did not suitably put right the injustice caused by its avoidable delays.

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Action

39. I found fault causing injustice and not yet put right (see generally paragraphs 29 to 33, 36 and 38). To put right the outstanding injustice to Mrs X, the Council agreed (within 20 working days of this statement) to:

• apologise;
• make a symbolic payment of £400; and
• make a symbolic payment of £150,

to Mrs X to recognise her

• avoidable distress (frustration, uncertainty and delayed opportunity to appeal) arising from its poor communication and avoidable delays in reviewing C’s EHC Plan (represented by the payment of £400); and
• avoidable time and trouble in pursuing her complaint arising from its avoidable delays in its complaints handling (represented by the payment of £150).

40. The Council should provide us with evidence of its compliance with the actions set out at paragraph 39.
41. We publish guidance on remedies which includes information about apologies. The Council should consider this guidance in making the apology agreed in paragraph 39.

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Decision

42. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman