Summary: Mr X complained about the Council’s handling of his son, Y’s Education, Health and Care (EHC) Plan and annual reviews between 2023 and 2024. The Council was at fault. It failed to process an early annual review and then delayed issuing an amended Plan following a subsequent review. It also failed to provide sufficient oversight and delayed providing additional funding to the school after Mr X raised concerns about Y’s provision. There was also evidence of poor communication throughout. The Council agreed to make payments to Mr X to acknowledge the injustice caused to him and to recognise the impact it had on Y’s education.

The complaint

1. Mr X complained about the Council’s handling of his son, Y’s Education, Health and Care (EHC) Plan and the annual reviews between 2023 and 2024. He said a combination of delays, poor communication and failure to ensure provision was in place impacted on Y’s education.
2. Mr X said along with the impact on Y’s education the matter has caused him distress, uncertainty and delayed appeal rights.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. Mr X complained to us in September 2024 and has raised concerns about annual review delays and issues with Y’s provision during the 2023/24 academic year.
9. I have investigated concerns about Y’s provision from September 2023 up to April 2024. This is because records show funding issues were resolved at this point and the Council had already provided a complaint response about the issue. If Mr X has concerns after April 2024 he should make a new complaint to the Council.
10. I have investigated matters around the delayed annual reviews from September 2023 up to July 2024 as this is when the Council issued Y’s amended EHC Plan. If Mr X had concerns about the amended Plan he had a right of appeal to the SEND tribunal which was reasonable for him to have used

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How I considered this complaint

11. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

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.
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviewing EHC Plans

17. 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.
18. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
19. The Regulations state an EHC Plan must be reviewed and amended before 31 March if the child is due to transfer to post-16 education.
20. A parent/carer can ask the Council for an early/emergency annual review if they believe
• the child/young person’s education, health or social care needs have changed and are no longer accurately described in the EHC Plan, or
• the provision in the EHC Plan is no longer meet the child/young person’s needs.
21. An early review is usually carried out by the council but an evidence gathering meeting can be delegated to the school. There is no right of appeal against a refusal to carry out an early annual review.

What happened

22. Mr X has a son, Y who in early 2023 was of secondary school age and attended an independent specialist school. Y had anxiety and was previously excluded from his mainstream school. Y required a high level of adult support to help him access a classroom The Council issued an EHC Plan for Y in March 2023. At the time the Plan was issued Y was being assessed for autism and Attention Deficit Hyperactivity Disorder (ADHD).
23. Y’s EHC Plan outlined the specialist provision he was entitled to. A lot of it revolved around additional support in most lessons and increased adult support at transition times. There was nothing specific in the Plan about a requirement for specific one-to-one at the time.
24. In late 2023 email records show Mr X contacted the Council’s SEN officer about an early review for Y. This is because Y had in May 2023 been diagnosed with both autism and ADHD and therefore Mr X wanted his EHC Plan amended to reflect this. Mr X had asked the Council how this could be included in Y’s Plan as early as May but did not receive a response. The officer told Mr X they had emailed Y’s school and asked it to start the process for a review.
25. Records show Y’s school held an early annual review meeting in November 2023. The review notes show Mr X raised concerns that Y was not receiving the support he required. Both Mr X and the school agreed Y needed one-to-one staff on a daily basis, in line with his EHC Plan. Y was currently struggling without one-to-one adult support which was leading to the school sending him home early on occasions. Amendments were recommended for both section B to reflect the recent diagnosis of ADHD and autism and also section F for further one-to-one support.
26. Email records show the Council rejected the early annual review because it did not approve the review and there was no evidence Y’s EHC Plan was no longer accurate or did not reflect his needs. Records show the Council’s SEN panel considered further funding for one-to-one support for Y but this was rejected.
27. Mr X complained to the Council in January 2024. He complained Y’s EHC Plan was not a true reflection of his needs and complained about the handling of the early annual review. Mr X also complained about a lack of adequate communication from the SEN department at the Council.
28. In early February Y’s annual review was held. Y was due to transition to post-16 education in September 2024. Records of the review show it was held due to an ongoing request for further one-to-one support. It shows Y had started attending a different school site but despite him having key staff there was no one-to-one support in place. This had caused his behaviour and attendance to decline. The review showed the Plan required amending.
29. The Council responded to Mr X’s complaint in February 2024 and referred to the recent annual review which had taken place. It said there was no professional evidence available when the early review took place and therefore the Council did not believe changes were required at that time. It said its SEN officer should have requested further information before agreeing to the review and it apologised for any confusion this caused and for poor communication. Mr X escalated his complaint to stage 2.
30. The Council issued Mr X with a stage 2 response in March 2024 which did not add anything further than that in the stage 1 response.
31. In April 2024 Mr X raised a further complaint with the Council. He said there was still confusion around the one-to-one funding and Y’s amended EHC Plan was still not issued. He raised concerns about ongoing poor communication from the case officers.
32. The Council responded in May 2024 and said the funding issues were now resolved and one-to-one support in place as of the end of April 2024. It said one of the case officers had left which is why Mr X had experienced poor communication. It said a new case officer would contact Mr X soon. Mr X escalated the matter to stage 2 of the complaints procedure. The Council wrote to Mr X in June 2024 and said it had nothing further to add to the stage 1 response.
33. The Council issued Y’s amended EHC Plan in July 2024 which was four months over the transition deadline of 31 March. The EHC Plan continued to name Y’s current school.
34. Mr X remained unhappy with the Council’s handling of Y’s EHC Plan and complained to us.

The Council’s response to us

35. The Council said Y’s school did not follow procedures when it submitted the early annual review in 2023. It said the school did not request permission to hold the review.
36. It accepted it failed to carry out the 2024 annual review in line with statutory timeframes.
37. With regards to Y’s one-to-one provision it said it was aware of concerns that support and was not in place in November 2023, caused by a lack of funding and it took until the end of April 2024 to resolve this. It said there were delays and poor communication between it and the school in resolving the matter.
38. The Council has outlined steps it has taken to improvement services which includes
• Restructuring its SEN department
• Prioritising staff recruitment
• Staff training

My findings

Y’s early annual review in late 2023

39. Records show there was a missed opportunity to consider holding an annual review in May 2023 when Mr X told the Council about Y’s diagnosis. Y’s school approached the Council in late 2023 about holding an early review based on concern Mr X had raised about a lack of one-to-one support and Y’s recent autism and ADHD diagnosis. It is for the Council to decide whether it is appropriate to hold an early annual review and there is no right of appeal. The Council told us the school did not ask for permission. However, a Principal SEN officer emailed the school and asked it to start the process. I am unclear how the school could have interpreted the email as anything other than permission to carry out the early review. Therefore, the Council should have issued an amendment notice in line with statutory guidance. Not doing so was fault. The poor communication around the matter led to confusion and conflicting decisions which was also fault.

Y’s 2024 annual review

40. Y was due to transition to post-16 education in September 2024 therefore in line with statutory guidance the Council should have held the annual review and issued the amended Plan by 31 March. The Council held the review in February but missed the deadline by four months when it delayed issuing the amended Plan until July 2024. Poor communications and a turnover of case officers contributed. That was fault. It caused Mr X distress and uncertainty.
41. Since the scope of this complaint we have made service improvement recommendations following other investigations which found similar fault. This includes the Council agreeing to draw up an action plan to ensure the EHC Plan process and annual reviews are carried out within statutory timescales. We will monitor compliance of these recommendations through our casework.

Y’s one-to-one provision

42. Y’s EHC Plan issued in 2023 did not specifically state that Y required a one-to-one assistant, rather it referred to additional adult support both in and out of lessons. Mr X and the school agreed Y needed one-to-one support in the 2023 early review this. However, this would have required an amendment on the Plan which the Council ultimately declined to do at the time. So, I cannot say Y missed out on specific one-to-one provision because it was not in the EHC Plan.
43. However, both the school and Mr X raised concerns that Y’s provision was not being delivered. At the point of becoming aware of Mr X’s and the school’s concerns, the Council should have investigated and had oversight of whether Y’s provision was in place. Not doing so was fault.
44. The Council has accepted poor communications with the school around providing additional funding for the school to provide one-to-one support. This additional funding appears to have been required so the school could ensure Y received the correct level of adult support each day. The Council accepted it delayed resolving this until the end of April 2024 which is fault.
45. All of this means that on balance the school had insufficient funding which meant it was likely Y was not receiving the correct level of support which likely impacted on Y being able to receive some of the provision outlined in his EHC Plan.

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Agreed action

46. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mr X and pay him £500 to recognise the distress and uncertainty caused to him by the faults above. 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 the apology I have recommended.
2. Pay Mr X £1500 to acknowledge the impact the faults had on Y’s education between November 2023 and April 2024.
3. Review its procedures around how it considers and decides requests from parents/carers and schools for early annual reviews. The Council should consider whether it is necessary to provide guidance to schools on how they can request an early review.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice and have made recommendations for the Council to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman