Summary: Mr X complained about the Council’s handling of the annual review of his child’s Education, Health and Care Plan. We found avoidable delay by the Council in completing the annual review which added to Mr X’s frustration. The Council had already apologised to Mr X and offered him a symbolic payment of £600. We found the offer made by the Council suitably addressed the injustice to Mr X caused by its avoidable delay.

The complaint

1. Mr X complained about the Council’s delay in completing the 2023 annual review of his child’s Education, Health and Care Plan (EHC Plan). Mr X also complained about the Council’s failure to name a suitable school in the final amended EHC Plan once it was issued.
2. Mr X said what happened caused his child anxiety and distress and meant his child could not attend school.
3. Mr X wanted the Council to provide a suitable school place for his child and to pay compensation for his child’s lost education. Mr X also wanted the Council to change its procedures to prevent delays during the annual review of EHC Plans.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
8. 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)
9. 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

10. Mr X’s complaint included his concerns about his child’s special educational needs, educational provision, and school placement. However, Mr X had used his rights to appeal to the Tribunal about these matters, which were set out in sections B, F and I of his child’s EHC Plan. As Mr X had used his appeal rights, I could not investigate those parts of his complaint covered by his appeal to the Tribunal (see paragraphs 5 to 7 of this statement).
11. When the Council issued a final amended EHC Plan for Mr X’s child, it had not changed the name of his child’s school. Mr X had withdrawn his child from the school when appealing to the Tribunal as he considered the placement unsuitable. Mr X’s appeal included a challenge to the suitability of the named school. So, the Tribunal will decide the school named in the EHC Plan. I found Mr X’s concerns about alternative educational provision (and any lost education for his child) were linked to his disagreement with the Council about the suitability of the school named in his child’s EHC Plan. I therefore could not investigate that part of Mr X’s complaint about alternative educational provision and or lost education.
12. The Council continued to contact Mr X about his child’s education after he complained to us. The Council’s further action led to the issue of another amended EHC Plan for Mr X’s child. Mr X said these recent events were now also before the Tribunal. However, if these recent events were not before the Tribunal, I could not investigate matters not covered by Mr X’s complaint to the Ombudsman and that arose after we received that complaint.
13. My investigation focused on Mr X’s complaint about the Council’s delay in completing the 2023 annual review of his child’s EHC Plan. And that investigation covered events from December 2023 and up to the issue of a final amended EHC Plan in May 2024. I did not investigate events before December 2023 as Mr X’s complaint to the Council, which he later brought to us, did not include such events. And we must normally give councils an opportunity to resolve a complaint before we may investigate it.

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How I considered this complaint

14. I considered evidence provided by Mr X and discussed the complaint with him. I also considered evidence provided by the Council and relevant law, policy and guidance, including the Government’s Special educational needs and disability code of practice: 0 to 25 years (the SEN Code). I shared Council information with Mr X. I also gave Mr X and the Council 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

Background

15. A child with special educational needs (SEN) 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 Tribunal or the Council can do this. 
16. 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 and the educational placement. A review meeting must then take place. An annual review is complete when the Council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. Where the Council decides to amend an EHC Plan, it must send the child’s parent a copy of the existing (non-amended) plan with a notice. The notice gives details of the proposed amendments, including any evidence supporting 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 that councils must issue any final amended EHC Plan within a further eight weeks.

What happened

18. Mr X’s child (in this statement named ‘C’) had an EHC Plan, which named the school that C was attending during 2023 (‘the School’). An annual review meeting for the EHC Plan took place in December 2023.
19. In February 2024, Mr X contacted the Council about changes to C’s EHC Plan. The Council replied that it could not make changes as the School had not yet sent it the report of the annual review meeting. The Council said it understood Mr X had not agreed the report but if he signed it, explaining his concerns, it could progress the review. A few days later, the School sent the Council the report of the review meeting.
20. Over the following four weeks, Mr X and the Council were in touch about C’s EHC Plan and educational needs. Mr X asked about possible added provision to help C at the School. The Council told Mr X it had advised the School to ask for extra funding to support C. The Council also contacted third parties about added support for C. The correspondence between Mr X and the Council also led to Mr X asking about an alternative school placement for C. The Council said it could consult with other schools about offering C a place.
21. In late March 2024, Mr X asked the Council if it had yet started to consult other schools and pointed to the legal timescales for completing annual reviews. The Council then started to consult other schools about a place for C.
22. A few weeks later, Mr X complained to the Council about its failure to meet legal timescales for completing the 2023 annual review of C’s EHC Plan. Mr X said, the Council’s delay was denying him his appeal rights to the Tribunal.
23. A few days later, the Council wrote to Mr X saying it intended to amend C’s EHC Plan and sending a draft amended plan for comments. Over the following three weeks, Mr X asked for changes to C’s draft amended EHC Plan and the Council responded to Mr X’s proposed changes. Mr X then asked for a meeting to discuss the draft and the support available to meet C’s needs at the School. A meeting took place about 10 days later, in mid-May 2024. The Council asked Mr X if he wanted more time to comment on the draft amended EHC Plan or it should issue a final amended plan to give him appeal rights. Mr X asked for a final amended EHC Plan.
24. A few days later, the Council wrote to Mr X, sending him a copy of C’s final amended EHC Plan. Section I of the EHC Plan named the School as C’s educational placement. Mr X appealed to the Tribunal.
25. Meanwhile, the Council had responded to Mr X’s complaint. The Council recognised the delay in completing the annual review. In mitigation, the Council said it had not received the review meeting report within the two-week legal timescale but contact with Mr X in late February then secured the report. It had then worked with Mr X, consulting schools about a placement and seeking added support for C. The Council did not uphold the complaint. Mr X took his complaint to the second and final stage of the Council’s complaint procedure. Mr X said the complaint was straightforward: the Council had a duty to meet the legal timescales for an annual review but had failed to do so.
26. The Council further investigated Mr X’s complaint. It found it had failed to meet legal timescales for the 2023 annual review. And its delay had frustrated Mr X’s right to appeal to the Tribunal against any final amended EHC Plan. The Council also accepted there was a month’s delay between Mr X first asking it to consult with other schools about a place for C and the start of consultations. While recognising its delays, the Council found its officers had acted in good faith in communicating with Mr X to progress the amended EHC Plan. The Council also recognised its communication with Mr X could have been clearer and it could improve its procedures.
27. The Council wrote to Mr X, sending a copy of its investigation report and upholding his complaint. The Council apologised to Mr X and offered him symbolic payments totalling £600. The Council also told Mr X about its proposed service improvements. These were, first, a change to alert officers to cases nearing legal time limits. Second, it would produce clear guidance on what should happen if parents did not agree changes suggested at an annual review meeting. Third, it would issue clearer guidance about the law, policy and procedure for consulting with schools about placements. The Council signposted Mr X to the Ombudsman and he brought his complaint to us a few months later.

Consideration

28. After holding the annual review meeting in December 2023, the Council should have accessed a report of the meeting within 2 weeks. Here, the Council received the report, which the School prepared, over 9 weeks after the meeting. I saw no evidence that, once the report was overdue, the Council contacted the School between late December 2023 and mid-February 2024. And good administrative practice needed the Council quickly to chase the School once two weeks passed without it receiving the necessary paperwork.
29. Having received the report in late February 2024, the Council next needed to decide whether to amend, maintain or discontinue C’s EHC Plan. Here, the Council decided to amend C’s EHC Plan. But, this decision took 19 weeks rather than the required 4 weeks. It then took more than 4 weeks, and an express request from Mr X, for the Council to issue C’s final amended EHC Plan. The Council gave reasons for the delay (see paragraphs 25 and 26). However, it should have completed the 2023 annual review within 12 weeks whereas it took over 23 weeks. The Council’s Stage 2 complaint response found it had failed to meet the legal timescales for an annual review. I agreed and found there was avoidable delay by the Council in completing the 2023 annual review. I also agreed with the findings of the Council’s complaint investigation, which recognised its communication with Mr X could have been clearer. I therefore found fault by the Council in its handling of the 2023 annual review of C’s EHC Plan.
30. The issue of C’s final amended EHC Plan gave Mr X appeal rights to the Tribunal, which he quickly used. However, the delay in issuing C’s final amended EHC Plan meant Mr X’s appeal rights to the Tribunal were avoidably delayed for nearly 3 months. And, with clearer communication, the Council might have completed the annual review, if not within 12 weeks, sooner than it did. The avoidable delay and unclear communication would also likely have added to Mr X’s frustration with the annual review process. I therefore found the faults I identified at paragraph 29 caused Mr X injustice.
31. Since the 2023 annual review in this case took place, the Council had reorganised its service. It had set up two separate teams. One team handles cases where people have asked for an EHC Plan for their child. Another team deals with cases where there is an existing EHC Plan, including handling annual reviews. The Council accepted it still had ‘some way to go’ to meet legal time targets for annual reviews. But, since creating the two separate teams, it had seen a significant increase in the number of annual reviews progressed within four weeks of a review meeting. As the Council had acted to reduce delays in carrying out annual reviews of EHC Plans, I found no need now to make further recommendations for service improvements on this point.
32. However, the Council had identified service improvements in responding to Mr X’s complaint (see paragraph 27). When writing this draft statement, I had seen no evidence the Council had actioned the identified improvements about either disputes arising from annual review meetings or school consultations. This statement therefore includes recommendations aimed at securing those service improvements.

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Action

33. I found fault causing injustice (see paragraphs 29 and 30). In dealing with Mr X’s complaint, the Council had accepted things had gone wrong and offered Mr X an apology and symbolic payments totalling £600 (see paragraph 27). Having considered our guidance on remedies, I found no good grounds to question the Council’s offer. The Council’s stage 2 complaint response to Mr X included its apology for the avoidable delay in completing the 2023 annual review. However, on the date of this statement, I had no evidence the Council had yet paid £600 to Mr X. So, based on the £600 payment not having been made and provided Mr X gives the Council the necessary bank details, the Council agreed within 20 working days of this statement to:

• Make a symbolic payment of £600 to Mr X in recognition of the avoidable distress (frustration and delayed opportunity to appeal) caused by its unclear communication and avoidable delay in completing the 2023 annual review of C’s EHC Plan.

34. The Council also agreed (within three calendar months of this statement) to:

• Prepare written guidance to cover what happens if parents/carers do not agree suggested changes made at the annual review meeting for their child’s EHC Plan. To then share that guidance with schools and, when needed, parents/carers.
• Review its internal guidance to ensure it clearly sets out the law and procedure for consulting schools about securing a place for a child with an EHC Plan.
• To tell relevant officers about the new and reviewed guidance on annual review meeting disputes and school placement consultations.

35. The Council also agreed to provide us with evidence it had complied with the actions set out at paragraphs 33 and 34.

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Decision

36. I found fault causing injustice. The Council agreed the actions at paragraphs 33 and 34 to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman