Summary: Mrs X complained the Council had not completed the annual review process of her child’s (Y) Education, Health and Care Plan. Mrs X also complained about the Council’s poor communication with her and how it dealt with her complaint. The Council was at fault in how it dealt with Y’s annual review process, Mrs X’s complaint and its poor communication with her. This caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about the Council’s delays and failure to complete the 2024 annual review process of her child’s (Y), Education, Health and Care Plan. Mrs X also complained about the Council’s poor communication with her about the matter and delays with its complaint handling.
2. Mrs X said the matter affected her mental health and it caused distress and anxiety to her and Y.

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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 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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

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What I have and have not investigated

9. I have investigated matters from March 2024 to September 2024. This covers the period when Y’s EHC Plan annual review was held to when Mrs X complained to the Ombudsman.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs 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

Education, Health and Care Plans

12. 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.
13. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights. The process is only complete when the council issues a decision about the review.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
15. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

The Council’s complaint procedure

16. The Council has a two-stage complaint procedure, and it aims to issue its responses at both stages within 10 working days. The Council will notify the complainant where it is unable to respond within this timeframe.

Key events

17. Mrs X’s child, Y, has some special educational needs (SEN). Y attends a mainstream school, and he has an Education, Health and Care (EHC) Plan.
18. On 12 March 2024, Y’s EHC Plan annual review meeting was held. Mrs X asked the Council to name a specialist setting in Y’s Plan for September 2024 admission. Mrs X said this was to ensure Y’s SENs were met as agreed by Y’s professionals.
19. In July, Mrs X made a formal complaint to the Council about its delays and failure to complete Y’s 2024 EHC Plan annual review process. In particular the Council’s failure to issue her with its annual review decision letter, to respond to her request for another placement and to issue Y’s final EHC Plan.
20. In August, Mrs X chased the Council for an update about Y’s annual review process and his final EHC Plan. The Council told Mrs X it had reviewed Y’s annual review paperwork, and no amendments were required. But the Council acknowledged Mrs X’s change of placement request and said it had allocated Y’s case to a panel for her request to be considered.
21. When Mrs X did not receive any contact/update from the Council, she made a complaint to the Ombudsman.
22. In October, the Council issued its stages 1 and 2 responses to Mrs X’s complaint. The Council:
1. accepted and apologised for its significant delays with Y’s EHC Plan annual review process and its poor communication with Mrs X about the matter.
2. said with Mrs X’s change of placement request, it would consult with her preferred setting and other settings that may be able to meet Y’s SENs.
3. said it aimed to consult with the schools on 4 October, and then it would refer Y’s case to a multi-agency panel for consideration once it received the consultation responses.
4. said it would contact Mrs X with an update on 24 October.
5. said it had completed a review of its current systems and made amendments to its procedure to ensure its annual review process timelines and responses improve. The Council said it was also in the process of recruiting more staff.
23. Subsequently, the Council informed the Ombudsman it had agreed to name Mrs X’s preferred placement in Y’s EHC Plan for September 2025 admission. The Council said during the delay period it had worked with Y’s current school to support a plan with a funding package in place to provide a bespoke curriculum and staffing for Y. The Council said this was also to support Y with an enhanced transition to the new placement.
24. Y continues to attend the mainstream school and is in receipt of the provisions set out in his existing EHC Plan.
25. The Council has not issued Y’s final EHC Plan.

Analysis

26. The Council had four weeks from 12 March 2024 to send a notification letter to Mrs X about its annual review decision. This means the Council should have issued its decision letter to Mrs X on 9 April 2024. The Council did not issue its annual review decision letter to Mrs X. This is fault and it was not in line with the statutory guidance. A parent/guardian or young person’s appeal right to the Tribunal is engaged when the Council issues its decision letter following an EHC Plan review. The Council gave an indication it did not intend to amend Y’s EHC Plan but at the same time stated it was considering the change in placement. This caused confusion, uncertainty and distress to Mrs X. While I cannot say whether Mrs X would have appealed the Council’s decision, I have exercised discretion to investigate this matter. This is because I find the Council’s failure to issue its decision letter, denied Mrs X of her right of appeal to the Tribunal if she disagreed with the Council’s 2024 annual review decision of Y’s EHC Plan.
27. The Ombudsman expects councils to follow statutory timescales set out in the law, Regulation and Code. We are likely to find fault where there are significant breaches of those timescales. The Council has still not issued Y’s final EHC Plan following the annual review meeting held in March 2024. This fault is ongoing, and it is a significant delay. This caused Mrs X distress, frustration and it has delayed Mrs X of her right of appeal to the Tribunal if she wished to exercise it.
28. There was further fault by the Council for its delay in consulting with the specialist setting after Mrs X made a change of placement request during the annual review meeting. It took the Council approximately seven months (March to October 2024) to consult with the specialist setting and with other schools. This was a significant delay, and it was fault. This caused distress, uncertainty and frustration to Mrs X.
29. Also, Mrs X’s request was for the specialist setting to be named in Y’s amended final EHC Plan for September 2024 admission. While I note the Council has agreed to name the specialist school in Y’s EHC Plan, as stated above the Council has not issued Y’s final Plan to reflect the change in placement. I note the Council said the new placement will be for September 2025 admission, I therefore find on balance, that Y has missed out on one year placement at the specialist school due to the Council’s faults as identified above. These are faults which caused injustice to Y.
30. However, Y has continued to attend his current school where he receives the provisions set out in his current EHC Plan. I consider this mitigates the injustice caused to Y.
31. The Council has accepted and apologised for its delays with Y’s EHC Plan annual review process and its poor communication with Mrs X about the matter. It has also agreed to name the specialist school in Y’s final EHC Plan. But these are not proportionate to remedy the injustice caused to Y and Mrs X in line with our guidance on remedies. I will therefore address this under the ‘action’ section below.
32. There was fault by the Council for its delays with responding to Mrs X’s complaint. Mrs X complained to the Council in July 2024 and the Council did not issue its response until October 2024 and after the Ombudsman’s involvement. This was a significant delay, and it was not in line with its complaint procedure timescales. This was fault. It caused distress to Mrs X and the time and trouble chasing the Council for its response and making a complaint to the Ombudsman.
33. We have recently made service improvement recommendations to the Council in other decisions about its duty to carry out EHC Plan reviews, issue annual review decision letters and final EHC Plans within the statutory timeframes. We also made recommendations about adhering to its complaint handling timescales. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made any service improvement recommendation in this case. This identified issue is already being addressed through other cases we have investigated.

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Action

34. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within four weeks of the final decision:

• issue Y’s final Education, Health and Care Plan to ensure Mrs X’s appeal rights are engaged
• make Y a symbolic payment of £500 to acknowledge the injustice caused to him by the Council’s delays and failure to issue his final Education, Health and Care Plan following the 2024 annual review meeting as identified above
• apologise in writing to Mrs X and make her a symbolic payment of £250 to acknowledge the injustice caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology.

35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault by the Council causing injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman