Summary: Ms T complains about delays by the Council regarding her daughter’s Education, Health and Care Plan annual review. There was fault by the Council. However, the fault did not cause significant injustice to Ms T or her daughter that warrants a remedy.

The complaint

1. Ms T complains the Council delayed progressing her daughter X’s EHCP annual review for 2024. As a result, she says her daughter has been left without adequate provision for her special educational needs in a GCSE transition year.

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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. 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)
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. 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

6. I have discussed the complaint with Ms T and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Ms T and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

7. 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.

Reviewing EHC Plans

8. 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.
9. 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)
10. 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. The Council must then issue any final amended Plan within 8 weeks of the amendment notice (R(L,M and P) v Devon County Council).

What happened

11. X has a diagnosis of autism and ADHD. She also has physical health conditions which cause her pain. She has an EHC Plan which was first issued in 2021. The Council reviewed X’s EHC Plan and issued a final Plan in April 2023.
12. On 11 March 2024 X’s school held an annual review meeting. Ms T said she would be requesting a personal budget to support X’s special educational needs.
13. On 24 March 2024 Ms T emailed the Council stating that there would be a delay in providing documents for the personal budget due to the school working on extensive edits and adding additional reports to the EHC Plan.
14. In early April the Council advised Ms T the school had not sent it the annual review report. It said this was delaying the process and it would chase this up.
15. Ms T replied that she had already advised the Council there would likely be delays by the school due to significant changes in the EHC Plan.
16. In mid-April the Council chased the school for the review documents.
17. On 1 May the Council advised Ms T the school said it was finalising its report.
18. The Council advised Ms T on 16 May 2024 that it had received the annual review documents from the school.
19. On 3 June 2024 Ms T complained to the Council about the delay in finalising X’s EHC Plan. She said she had not received a draft plan and it was now two and a half months since the review meeting.
20. On 7 June 2024 the Council advised it intended to amend the Plan. It issued a draft Plan to Ms T.
21. The Council replied to Ms T’s complaint on 11 June 2024. It said it had not received the paperwork from the school until 17 May. However. It said it had updated Ms T and it had chased the school for a response. The Council said it had sent Ms T’s request for a personal budget to its panel. The panel had refused Ms T’s request on 29 May 2024. The Council explained that while it was checking its draft plan, the First Tier Tribunal advised that it had received an appeal from Ms T regarding a previous decision. The Council said it needed to check the grounds of the appeal to see if any requested amendments were not covered by the tribunal process. The Council then issued the draft Plan.
22. Ms T complained further regarding the delayed EHC Plan. She said the school’s delay in sending the paperwork was due to disagreement regarding the amendments. The school had worked hard to make agreed changes, but the Council had disregarded most of the changes. She did not feel the Plan accurately reflected her daughter’s needs.
23. The Council did not reply to Ms T’s further complaint because it said that it related to another complaint that she had made regarding a previous annual review.
24. The Council issued a final Plan on 29 July 2024 after it considered Ms T’s comments on the draft Plan.
25. Ms T has appealed to the SEND tribunal regarding the Council’s Plan.

Analysis

26. Ms T disagrees with the content of the EHC Plan. However, she has appealed to the SEND Tribunal on that matter and so I cannot consider this further.
27. There was fault by the Council because it did not complete the annual review within 12 months of the previous annual review. It should have completed the review by mid April 2024. However, once it received the record of the annual review meeting it issued its decision to amend, and the draft Plan within three weeks. It went on to issue the amended final EHC Plan within a further seven weeks, which was in line with the timescales set out in the guidance and the case law.
28. However, the delay did not cause injustice that warrants a remedy. I have taken into account that:
• the Council chased the school for a response and kept Ms T updated.
• Ms T herself was aware that there may be delays due to the significant requested changes.
• There was no delay following receipt of the annual review from the school.
• The final Plan did not agree changes in the SEN provision X was receiving. Therefore, she did not miss out on any increased provision.

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Final decision

29. There was fault by the Council but no injustice. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman