Summary: Mrs X complained the Council did not complete an annual review of her son Y’s Education, Health and Care (EHC) Plan in line with the statutory guidance after a review meeting in May 2023, and delayed issuing an amended final EHC Plan until December 2023. The Council was at fault. The Council will apologise to Mrs X and pay her £200 to recognise the frustration caused to her by the delay.

The complaint

1. Mrs X complained the Council did not complete an annual review for her son Y’s EHC Plan after a review meeting in May 2023, and delayed issuing an amended final EHC Plan until December 2023. Mrs X said this delayed her appeal rights to the SEND Tribunal and caused Y to attend a school that did not meet his needs, which affected his learning. Mrs X wanted the Council to apologise to Y, explain how it will ensure there was no long-term effect on him and provide a financial remedy.

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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. 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)
4. 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.
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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How I considered this complaint

7. I read the documents Mrs X provided and discussed the complaint with her on the phone.
8. I considered documents the Council provided.
9. Mrs 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 legislation and guidance

10. 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. Section F contains the special educational provision the child or young person needs, and Section I specifies the name and/or type of educational placement they should attend. 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. 
11. 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. Councils will often delegate the responsibility of arranging and holding the meeting.
12. 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) 
13. 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.
14. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

What happened

15. Y is of secondary school age and lives at home with his parents and siblings. In May 2023 Y was attending the school named in section I of his EHC Plan.
16. The school held an annual review on 3 May 2023 for Y’s EHC Plan. The Council did not attend. The annual review paperwork recorded that some minor amendments were need to Y’s Plan but overall it continued to be appropriate. It recorded Y’s parents could see the progress Y was making with settling in at the school.
17. Having not heard anything from the Council, Mrs X complained to it in mid-October 2023. The Council contacted the school which sent a copy of the annual review record the same day.
18. The Council said it told Mrs X it intended to amend the Plan on 20 October and sent a notice of the amendments on 27 October. Mrs X provided her comments on the draft amended EHC Plan and requested a meeting to discuss it with the Council.
19. The Council responded to Mrs X’s complaint in December. It said it had not investigated why the annual review paperwork was not sent by the school as that was a complaint against the school. It said it had acted quickly once it was aware and apologised it had not chased the school for the review paperwork sooner. It upheld Mrs X’s complaint that it had not met the statutory timelines. It said as part of its improvement plan it had:
• identified staffing in the team to check and chase annual reviews with schools was a challenge and was assessing solutions;
• reminded relevant officers of the statutory timeframes in November 2023;
• added returning annual review paperwork on time as an agenda item at a meeting of head teachers in December 2023; and
• added reminders to all schools of the annual review timescales in its SEND and schools newsletters.
20. The Council met with Mrs X at the beginning of December to discuss the amendments to Y’s Plan. Mrs X told the Council she wanted Y to attend a different school. The Council said it consulted with several schools and the school Y was attending said it could meet his needs. The Council said while it was waiting for the other consultations it named school Y in the Plan to meet the statutory timescales and provide Mrs X’s appeal rights.
21. The Council issued an amended EHC Plan for Y on 22 December 2023 and notified Mrs X of her appeal rights to the SEND Tribunal. The specialist provision in the amended final EHC Plan remained the same as the previous Plan and it continued to name the school Y was attending. Mrs X appealed to the SEND Tribunal about Sections F and I of the Plan.
22. Mrs X was dissatisfied with the Council’s response and complained that it could not pass its duty to complete the annual review to the school and so it should investigate the school’s actions. Mrs X said the Council had issued the final Plan too quickly, without waiting for all the consultations to be returned and it should withdraw the amended Final Plan and wait for the consultations.
23. The Council responded and said the school had a responsibility to return the annual review paperwork within ten days, but the duty remained with the Council. It said it had not met that duty and was seeking to increase capacity in its team to check each school was holding and returning annual reviews in good time. It explained it issued the EHC Plan in line with the timescales in the statutory guidance once it had the annual review paperwork to ensure it did not delay the right of appeal.
24. Since the events Mrs X complained of we have made service improvement recommendations to the Council in a separate investigation. We recommended the Council clarified for officers when EHC Plan annual reviews were due and considered how it could improve its systems for checking these had been completed to deadline. I have therefore not made further service improvement recommendations on the same point.

My findings

25. The Council had accepted it did not issue the amended final EHC Plan in line with the statutory guidance. It had also recognised that, although the school did not return the paperwork in good time, it was responsible for ensuring the annual review was completed in line with the statutory guidance. This is correct. The meeting was held on 3 May 2023, the Council should have issued its decision to maintain, cease or amend Y’s EHC Plan by 31 May 2023. The Council did not do so until 20 October 2023 which was a delay of 20 weeks and was fault.
26. The Council issued its decision to amend the Plan and the amendment notice within a week of receiving the annual review paperwork, and the final amended EHC Plan within nine weeks. I do not find there was any fault in the Council’s actions once it had the annual review paperwork.
27. Mrs X complained the Council did not wait for the consultations to be completed before issuing the final Plan. However, Mrs X had an appeal right against the school named in Section I of Y’s EHC Plan. Mrs X has used that appeal right and for the reasons set out in paragraph three I cannot consider that matter further.
28. The delay in completing the annual review of Y’s Plan caused Mrs X frustration and delayed her appeal rights to the SEND Tribunal. However, I cannot say that had the Council acted without fault and issued its decision in May 2023 Mrs X would have appealed as the records show that at the time she was satisfied with the school named in the Plan.
29. I do not find the delay caused Y any injustice because when the Council did issue the amended EHC Plan, the provision and placement remained the same.

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Agreed action

30. Within one month of this decision the Council will apologise to Mrs X for the frustration she was caused by its delay in in issuing the amended EHC Plan and appeal rights, and pay her a symbolic amount of £200 to recognise the same. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
31. The Council will provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman