Summary: Miss X complains about the annual review of her child’s Education, Health and Care Plan. There was fault. The Council delayed finalising the Plan after the annual review and there were delays in the Council’s complaints process. It is unlikely that Y would have changed schools earlier if the fault had not occurred but the delays led to distress and uncertainty for Miss X. The Council apologised and revised procedures before the complaint was considered by the Ombudsman, but a payment in addition to this remedies the injustice.

The complaint

1. The complainant, who I shall call Miss X, complains there was delay in carrying out the annual review of her child, Y’s, Education, Health and Care Plan in 2023. She also complains the annual review process was not followed correctly.
2. Miss X says there were delays by the Council when considering her official complaint. And, the provision in Section F of the EHC Plan was not put in place from November 2023 until June 2024.
3. Miss X says this caused distress to her family and Y did not receive all the educational provision she should have done.

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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. 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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What I have and have not investigated

7. I have investigated events from November 2023 until June 2024.
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Miss X explained she had a historical complaint that there was no meeting and the draft EHC Plan was finalised in only 10 days with no parental feedback allowed in December 2022. It would have been reasonable for Miss X to complain about this at the time and to appeal to the SEND tribunal about the contents of the EHC Plan. So, I have investigated events from November 2023 when the annual review was due and Miss X first raised concerns with the Council. This is also 12 months before Miss X complained to the Ombudsman. I do not intend to exercise discretion to investigate back to 2022.
9. I have investigated events up to 1 June 2024 when Y moved schools. This is around the date of the Council’s complaints responses so it has not considered events after this date through its complaints process. If Miss X wants events after this date to be investigated she can put in a further complaint to the Council and then the Ombudsman to cover this time.
10. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
11. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
12. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
14. 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

15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
16. Miss 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

17. 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. 

Key dates

18. The Council issued Y’s first EHC Plan on 2 December 2022.
19. The Council said further revisions to the EHC Plan were made on 31 January 2023 and 22 May 2023.
20. The annual review was due on 2 December 2023. It was held on 18 December 2023.
21. The draft EHC Plan, along with a letter saying the EHC Plan would be amended was sent to Miss X on 9 April, but was incorrectly dated. The finalised EHC Plan after the review was issued on 24 April 2024.
22. Y started at a new school on 1 June 2024.
23. Miss X applied for mediation, which was held in July 2024.

Annual review

24. 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 then take place. The process is only 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) 
25. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
26. 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.
27. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
28. Miss X complains about the 2023 annual review. She complains:
• The Council initially gave a wrong annual review date which was over 18 months from the original annual review but then quickly gave a different date.
• The paperwork for a proposed annual review on 22 November 2023 (which Miss X postponed due to the lack of paperwork) was not sent to the parents 2 weeks before.
• The annual review of 18 December was not held within 12 months of the issue of the first EHC Plan.
• The paperwork for the annual review of 18 December was not sent to the parents 2 weeks before the meeting.
• The annual review meeting was unsatisfactory, as Miss X was asked for further information after the meeting and the meeting notes were not sent until 4 months afterwards.
• The Council did not send the notice to amend, cease or maintain the EHC Plan within 4 weeks, it was sent on 9 April 2024.
• The school asked for a reassessment on 7 February 2024, which Miss X thinks should have been done at the annual review.
• The final EHC Plan of 24 April 2024 contained the wrong date (24 May) which had to be rectified so Miss X could obtain mediation or appeal the EHC Plan.
29. The Council responded to Miss X’s stage 1 complaint. It said:
• The paperwork should have been sent two weeks before the annual review but this did not happen. The Council said it had revised its procedures to remind schools.
• The review paperwork wrongly stated that the meeting took place on 22 November.
• The review took place on 18 December which was not within 12 months of the first EHC Plan.
• The meeting notes of the annual review were sent late, five weeks after the meeting when they should have been sent within two weeks.
• The Council apologised that the annual review decision letter was not sent within 4 weeks of the annual review.
30. The Council’s stage 2 response to the complaint made a recommendation. This said ‘while recognising the Council has taken steps to provide clear guidance to school about annual reviews, the Council should consider whether and how they might improve their monitoring of the conduct of annual reviewed by schools, to better understand whether they are happening and meeting statutory timescales’.
31. From the information I have, the Council was at fault. The Council:
• did not provide the papers 2 weeks before the date of the annual review meeting.
• did not complete the annual review within 12 months of the date the plan was first issued.
• Delayed sending minutes of the meeting and the notice to amend by 4 months. This should have been sent on 2 December 2023, within 12 months of the previous annual review.
• Delayed sending the final EHC Plan to Miss X by 3 months. This should have been sent by 29 January 2024.
• Put the wrong date on the letter sending the final EHC Plan.
32. Miss X has complained about the contents of annual review meeting with the school. She has said that outcomes and provision were not properly considered and that meetings were requested outside of the annual review process. Miss X explained that the Council agreed to carry out a second annual review, but then she was forced to accept the original report in order to gain a place at a new school for her child. The Council has said that it asked Miss X which was more important to her, the second annual review or getting a place at the new school quickly. The Council said as Miss X said getting a place at the new school quickly was more important, it prioritised this. Miss X also attended mediation with the Council in July 2024 and if she disagreed with the contents or setting in the EHC Plan could have appealed to the SEND tribunal to challenge the result of the annual review.
33. I am not able to investigate the actions of the school, including its request for a reassessment of Y’s EHC Plan in February 2024. I can see there was continued correspondence between the school, Miss X and the Council after the annual review. This continued correspondence was not fault but I can see that it caused confusion because of the delays in the annual review process. If the delay had not occurred, Miss X would have been able to appeal the contents and setting in the EHC Plan earlier, which would have avoided the continued correspondence but would have been unlikely to have resulted in a change of schools quicker, as appeals to the SEND tribunal can take 6-12 months.
34. As I have found fault, I now have to consider what injustice was caused to Miss X and Y. Miss X’s ability to ask for mediation and to appeal to the SEND tribunal was delayed and the wrong date on the letter meant additional work for her when putting in her appeal.
35. Clearly Miss X has been caused huge distress by the fault surrounding the annual review process. The Council has apologised and revised its procedures, so I do not intend to make recommendations for the service improvements carried out.
36. There was three months delay in sending the final EHC Plan to Miss X. I consider that in addition to the apology and revision in procedures, the Council should make a payment to her to remedy her distress and her uncertainty on whether events would have been different if she had received the EHC Plan earlier. While there was delay, the Council was also trying to arrange the move in schools for Y and did so more quickly than a repeated annual review or appeal to the SEND tribunal would have achieved.
37. Our guidance on remedies recommends a payment of up to £500 to remedy the distress caused by the uncertainty of not knowing if the outcome would have been different. I consider that a payment of £500 would be reasonable in this case, given the delays during the process and the impact on Miss X and her family. This payment also recognises the uncertainty on whether or not Y was receiving the provision in the EHC Plan.

EHC Plan provision

38. 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)  
39. 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. 

40. Miss X told the Council in November 2023 that Y was not receiving the provision in her EHC Plan. The Council has said that after the annual review, the case officer visited the school and suggested an Inclusion Mentor who could work with staff to support Y and deliver the provision in Section F of the EHC Plan. This started in March 2024. Miss X said the Inclusion Mentor visited once and the only action was to put in place one hour a week with a Teaching Assistant.
41. The Provision in section F of the EHC Plan relates to interventions in school by the teaching staff. I am not able to investigate the actions of the school and so I cannot make a judgement on whether each provision in Section F was put in place. The Council responded to the concerns by putting an inclusion mentor in place, but this was three months after the annual review. Y then moved schools.
42. I have already proposed a remedy for distress and uncertainty caused by the delay so do not intend to add a further separate remedy. This is because it is not certain that Y lost education or did not receive the provisions in Section F of the EHC Plan, although I accept it is likely that this was the case for some of the provision. I have also noted that Y did not accept some interventions as they did not wish to be treated differently in the classroom.

Complaints process

43. The Council has accepted it was at fault, in that the response to Miss X’s stage 1 complaint was delayed.
44. The stage 1 complaint was made on 27 February 2024 and the Council replied on 8 April 2024. There were two further parts of the stage 1 response on 10 and 20 May. The Council’s policy says ‘usually, we will investigate within 10 working days, however if this is not possible the service will provide an update within 10 working days together with a likely timescale of a full response. The Council took about 27 working days to send the first response, with further responses taking a further month.
45. The stage 2 complaint was made on 30 June 2024 and the Council replied on 31 July 2024. The Council’s policy says ‘we will normally respond within 30 working days, if this is not possible we will advise you of the likely response time’. The Council took about 22 working days. I cannot see evidence of a delay in the stage 2 response.
46. Our guidance on remedies says that there is inevitably time and trouble involved in bringing a complaint. But this only generally requires a remedy (separately to any remedies associated with injustice from the complained about actions) when there has been a fault in the way the organisation considered the complaint. This means injustice of time and trouble above what is considered usual. For example, the organisation spent several months considering the complaint multiple times at the first stage of its complaints process, instead of progressing the complaint to a higher level. I consider that the delay and multiple replies to stage one of the complaint did cause Miss X an injustice above that which is considered usual and consider a symbolic payment of £100 to Miss X should be made.
47. I have not made service improvements as the Council has already made its own amendments to its procedures.

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Action

48. Within one month of the date of the decision the Council should:
• Write a formal apology to Miss X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X £600.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman