The Ombudsman's final decision
Summary: Ms X complains the Council delayed making a decision on her son’s Education, Health and Care Plan following an annual review causing distress and uncertainty. We found fault as the Council failed to deal with the annual review within the timescales required. The Council accepts our recommendation to make a payment to Ms X so we have completed our investigation.
The complaint
I have called the complainant Ms X. She complains the Council delayed making and communicating its decision following the Annual Review of her son Y’s Education Health and Care Plan (EHCP). This delayed the assessment process causing distress and uncertainty and potentially depriving Y of appropriate provision.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) . The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC plan within five weeks of the order being made. (The Special Educational Needs and Disability Regulations 2014) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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)
How I considered this complaint
I have read the papers submitted by Ms X and discussed the complaint with her. I considered the Council’s comments on the complaint and the supporting documents it provided. I considered relevant law and guidance on special educational needs.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 this decision with Ofsted.
What I found
Education, Health and Care Plan (EHCP) A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHCP.
Annual Reviews Councils must review EHCP’s at least every 12 months.
Councils must decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176) The Council should issue the final EHCP or decide not to amend the EHCP at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
What happened in this case Ms X’s son Y attended a mainstream primary school in year 1. The Council issued Y with an EHCP in February 2021. The school held Y’s annual review for 2022 in February 2022. Ms X contacted the Council at the end of March 2022 to chase progress as she had not received any notification. The Council advised Ms X to contact its helpline.
Ms X complained to the Council in April 2022 it failed to follow the timelines set out in the SEND regulations for annual reviews.
The school sent the annual review documents to the Council at the end of April 2022. The Council received the documents on 6 May 2022. The Council responded to Ms X’s complaint and confirmed it had now received the documents from the school. These would be considered by a case manager and responded to. The Council apologised for the delay.
In responding to my enquiries about the complaint the Council says it changed its computer system for holding its SEN documents in March 2022. This resulted in it being unable to produce reports for case managers on the annual reviews due to be carried out to check if documents had been received from schools.
The Council issued a proposed EHCP to Ms X on 17 May 2022. Ms X sent her parental response a few days later. The Council documents show it took no action on Y’s proposed EHCP until July 2022. The Council says it was because its SEN service needed to prioritise phase transfers for pupils with an EHCP in preparation for their moves of school in Autumn term 2022. This was due to staffing issues in 2021 and into 2022.
Ms X contacted the Council several times in July 2022 to chase the Final EHCP and suggest amendments to the proposed EHCP. The Council issued the Final EHCP on 3 August 2022. The EHCP made some small amendments to the previous EHCP and named Y’s school as his placement for year 2. Ms X appealed to the SEND Tribunal at the end of August as she considered the provision in the EHCP not specific or quantified.
My assessment
The SEND code says a council should tell parents within 4 weeks of an EHCP review what it intends to do. Y’s annual review was carried out on 25 Feb 2022 so the Council should have told Ms X it intended to amend the EHCP within 4 weeks of then in March 2022. This did not happen as the Council did not receive the annual review documents until May 2022 nearly 12 weeks after the annual review.
The SEND code says when a council decides whether it will maintain or amend the EHCP, it should begin the process of making the amendments without delay. The evidence provided shows that this did not happen. Ms X responded in May 2022, but the Council took no further action until July 2022. The Council issued the final ECHP in August 2022 nearly 20 weeks after the annual review. This is fault by the Council as it has failed to follow the annual review timescales set by the SEND code.
The Council documents show the school delayed sending it the annual review documents. And Council explained there were issues with the new system in place for holding its SEN docs. This meant it could not create a report for case managers to check annual review documents from schools. It is unfortunate there were issues with the Council’s system, but this is a service failure by the Council. The Council should have had other measures in place to keep track of the annual reviews and documents.
Ms X has been caused an injustice from the fault and service failure I have identified. Ms X has been caused distress and uncertainty over the possible content of Y’s ECHP after the annual review. She has also been put to time and trouble in chasing the Council for updates and for the EHCP to be issued.
Ms X has questioned whether the provision in the EHCP is appropriate. The documents show the provision in the amended EHCP is not significantly different to that of the EHCP in 2021. But Ms X has exercised her right of appeal to the SEND Tribunal so it is not an issue we can consider as paragraph four explains.
Agreed action
The Council will within four weeks of the date of my final decision: Apologise to Ms X and make a payment of £150 to her to recognise the uncertainty and distress she experienced about Y’s education provision following the annual review.
Make a payment of £150 to Mrs X, to recognise her time and trouble in pursuing the matter
Final decision
I found fault in the time the Council took to review and amend Y’s EHCP and agree his education provision.
Investigator's decision on behalf of the Ombudsman