Summary: Ms X complained the Council delayed completing the annual review of her child Y’s Education, Health and Care Plan, removed special educational provision from the Plan and did not provide School A with enough funding. We found the Council was at fault for the delayed annual review. The Council has apologised and offered a symbolic payment which is an adequate remedy for the avoidable confusion and delay in appeal rights.

The complaint

1. Ms X complained the Council:
1. Failed to complete the annual review of her daughter Y’s Education, Health and Care Plan (EHC Plan) on time
2. Removed special educational provision from the EHC Plan
3. Did not provide enough funding to School A
4. Did not pay School A’s invoices.
2. Ms X said this caused avoidable distress and meant Y did not receive all the one-to-one and small group support she was entitled to.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 complaints (a) (b) and (c). Ms X has not complained to the Council about the invoice payment issue (complaint (d)). But we would not expect a parent to become involved with fee payments. It is for School A to liaise with the Council about invoicing. The Council has a non-delegable duty to ensure the child receives the special educational provision set out in their EHC Plan.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms 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

10. 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, including Section F which describes the child’s special educational provision (SEP). We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

11. 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 2014)
12. 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.
13. The council must arrange for an 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 SEND Code of Practice paragraph 9.176) 
14. 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. (Regulation 22(2) Special Educational Needs and Disability Regulations 2014 and SEND 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.

What happened

15. Y has an EHC Plan. The Plan of July 2023 named School A, an independent mainstream school. Y started Year 7 at School A in September 2023.
16. The annual review of Y’s EHC Plan was due to be completed by 18 July 2024. School A held an annual review (AR) meeting on 24 June 2024. Y’s views were summarised in the minutes of the meeting: she loved her one to ones with the specialist literacy teacher and teaching assistants and felt well supported in school. There is no mention of School A or Ms X raising any concerns about SEP not being delivered or about the Council not providing sufficient funding to deliver provision in Section F. School A suggested some small amendments to Section F. School A also provided a detailed breakdown of costings to show the cost of Y’s SEP.
17. The Council issued an amendment notice and draft EHC Plan with proposed amendments at the start of October. The draft EHC Plan contained amendments which the Council did not intend to make. The Council told me this was because an officer wrongly copied across an old Plan. Ms X emailed the case officer saying lots of Y’s provision had been removed from the draft Plan and this had not been discussed in the AR meeting.
18. Ms X complained to the Council in October 2024 about the delay processing the annual review and about removal of provision in Section F from the draft Plan issued after the AR meeting. The Council’s response to her complaint said:
• School A completed the AR meeting on 24 June. The SEND Team received the papers in the middle of July and there was a delay in processing amendments to the Plan.
• A system error meant an incorrect version of the Plan was used to issue the draft amended Plan.
• The funding panel received the wrong version of the draft Plan. A new case officer had been allocated and would present the correct version of the draft Plan and share a draft with her by 5 November.
19. The Council offered Ms X a symbolic payment of £200 to reflect the avoidable distress and inconvenience caused by the delay in the annual review process.
20. The Council issued Y’s final amended EHC Plan in the middle of November 2024.
21. When Ms X complained to us, she told us Y was not receiving some of the provision set out in section F of the Plan.

Was there fault and if so, did this cause injustice requiring a remedy?

a) The Council failed to complete the annual review of Y’s EHC Plan on time

22. The Council was at fault. The decision to amend should have been issued within four weeks of the AR meeting so by 22 July 2024. The process of reviewing and amending Y’s EHC Plan should have been completed within 12 weeks of the annual review meeting – so by 18 September 2024. The Council did not issue an amended final Plan until 16 November, a delay of two months which caused avoidable confusion and a delay in appeal rights, which Ms X has not used. The Council has apologised and offered a payment of £200 to recognise the injustice. This is in line with our guidelines and is an appropriate remedy.

b) The Council removed special educational provision from the EHC Plan

23. The Council used an out-of-date final Plan when it issued the amendment notice and draft Plan following the annual review meeting in June 2023. This was fault which caused avoidable confusion and led to Ms X’s complaint. The Council corrected the fault and later issued a final amended Plan. This gave Ms X rights of appeal, which she has not used and so the injustice is limited. The apology and symbolic payment already offered are an appropriate remedy for the injustice caused.

c)The Council did not provide enough funding to School A

24. The issue of the fee for the placement and SEP is a matter between the Council and School A which a parent should not be involved with.
25. The Council’s duty in respect of Y is to secure the provision in Section F of her EHC Plan. We do not expect councils to keep a watching brief on schools, but they need to have oversight during the AR process and where a parent has raised a complaint about non-delivery. In Y’s case there is no fault because:
• The record of the annual review meeting did not reflect any concerns raised by School A about not being able to deliver Y’s SEP or that Ms X raised any concerns about Y not getting all the SEP in Section F. There was therefore no reason for the Council to take any action during Year 7 as there was no suggestion from any source that Y was not getting all their provision.
• In her complaint to the Council in October 2024 (when Y had begun Year 8) Ms X focussed on complaints (a) and (b). Non-delivery of Section F as a potential fault or injustice was not raised until the complaint to the LGSCO. We do not expect the Council to have taken any action to address a problem it was not made aware of.

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Decision

26. I find fault causing injustice. The Council has already agreed actions through its complaint procedure to remedy the injustice caused by this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman