Summary: We will not investigate this complaint about Education Health and Care Plan annual reviews. There are no good reasons the late complaint rule should not apply to older events. And it is unlikely we would find Miss X has been caused any significant injustice by any failure to meet the annual review regulations in 2023 and 2024.

The complaint

1. Miss X says the Council has failed to follow the Education Health and Care Plan (EHC Plan) annual review regulations over a six year period.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Miss X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

Background events

7. Miss X’s child Y, has an EHC Plan. The Regulations require the Council to complete an annual review within 12 months of the first EHC Plan’s anniversary.
8. Miss X says the annual reviews have not been held since the first EHC Plans issue in November 2019.
9. We cannot investigate events known to Miss X for more than 12 months without good reasons. Here the Council says it notified Miss X of an annual review and issued a post annual review appealable decision in November 2020. It is reasonable to expect Miss X to complain about failure to then hold annual reviews thereafter within 12 months of the date they are due. This means we will only consider the annual reviews held from 2023 onwards.
10. The Council issued an amended EHC Plan in January 2024. Miss X appealed this to the Tribunal in February 2024. That appeal ended December 2024 and the Council issued an amended EHC Plan.
11. The Council says it also held a transfer review in June and July 2024. It accepts it did not issue an appealable notice following those reviews.
12. Miss X says there was no annual review in 2023 and 2024. The Council says it has held them every year.
13. The main injustice from not holding an annual review in 2023 or 2024 would be the loss of appeal rights and potentially an EHC Plan which does not meet Y’s needs. In this case, we are unlikely to say there is any significant injustice. The Council issued an amended Final EHC Plan in January 2024 which Miss X appealed. This appeal was not concluded until the end of 2024. The loss of annual review appeal rights is not significant as there was an ongoing appeal.

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Final decision

14. We will not investigate Miss X’s complaint because we cannot investigate the older events as there are no good reasons the 12 months rule should not apply. It is unlikely we would find any significant injustice from not complying with the annual review Regulations for 2023 and 2024.

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Investigator's decision on behalf of the Ombudsman