The Ombudsman's final decision
Summary: Mrs X complained about the way the Council handled reviews of her child’s education, health and care plan. Mrs X said this caused unnecessary distress and frustration. We find some fault with the Council. Part of this fault caused Mrs X injustice. The Council has agreed to apologise to Mrs X.
The complaint
The complainant, who I refer to here as Mrs X, complained about the way the Council handled the review of her child’s education, health and care plan. Specifically, she complained that the Council: failed to review the plan the way the plan set out; failed to send review paperwork at least two weeks before the review meeting; and, failed to issue the final amended plan within statutory timeframes after the review.
Mrs X said this caused unnecessary distress and frustration. She said it was exhausting.
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 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) 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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated As I set out above, we cannot investigate complaints where someone takes more than 12 months to complain to us about something a council has done unless there are good reasons.
In this case, Mrs X complained to us in October 2023 about events going back to early 2022. Mrs X complained to the Council in good time and the matter has been ongoing since then.
I have therefore decided there are good reasons to exercise our discretion and investigate back to early 2022.
As I set out above, 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.
In this case, the Council has not had an opportunity to investigate or respond to part c of this complaint. However, the Council has agreed to allow the Ombudsman to investigate this part of the complaint. For this reason, I have investigated part c of this complaint.
How I considered this complaint
I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.
What I found
What should have happened 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.
An EHC plan is set out in sections. Section F of an EHC plan sets out the special educational provision needed by the child. 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 council must arrange for a child’s 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.
For reviews, the school must send any advice and information gathered to all those invited at least two weeks before the meeting.
The council must decide whether it proposes to keep the EHC plan as it is (‘maintain’ it), amend the plan, or cease to maintain the plan within four weeks of the review meeting.
The council must review and amend an EHC plan in sufficient time when a child moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.
What happened Mrs X’s child, B, has an education, health and care (EHC) plan. Section F of the EHC plan said the school would hold two parents evenings per year, and termly reviews of B’s individual education plan. It also set out certain additional arrangements for reviewing and setting targets. These were: The school, B, and Mrs X would agree certain targets for B and incorporate them into an individualised learning plan within the first two months after the final EHC plan was issued; The school would monitor, evaluate, and update the individualised learning plan or ‘steps to achieve the outcomes’ at least twice a year; B should be actively involved in setting and monitoring targets; B’s views should always be sought and recorded as part of all assessment and review processes; and, In the academic year before B transferred to the next phase of their education, and before changing settings, the annual review should be arranged no later than the autumn term.
In July 2022, Mrs X complained to the Council that it was failing to abide by section F of the EHC plan. The Council said the school had complied with the EHC plan.
In September, there was an annual review of B’s EHC plan. The decision was to maintain the plan.
Around this time, the Council sent Mrs X its stage one complaint response. Regarding the two parents evenings, the Council said Mrs X had not booked a parent consultation in the spring term of 2022. It said the teacher therefore had a phone consultation with Mrs X. It said in the summer term of 2022, parent consultations were combined with reviews of individual education plans. It said Mrs X had declined this individual education plan review.
Regarding the termly individual education plan reviews, the Council said there were no on-site meetings in the spring term due to COVID-19 guidelines: all meetings were virtual or by phone. The Council said the spring term review was done with the teacher on the phone during the parent consultation. The Council said Mrs X declined the school’s invite to review the individual education plan in the summer term because the school did not give enough notice. The Council said there was a review of the individual education plan in September 2022 for the autumn term.
Regarding the individual learning plan, the Council said the individual education plan and EHC plan contain all of B’s provision. It said this is the same information that would be in an individual learning plan. It recognised that the way the EHC plan was written could lead to an assumption that the individual learning plan and the individual education plan would be two distinct documents. It recognised this was confusing.
The Council accepted that the school had not agreed certain targets for B and incorporated them into an individualised learning plan within the first two months after the final EHC plan was issued. It said the EHC plan was issued at the end of December 2021 and the targets were not agreed until the end of March 2022, outside the two months set out in the EHC plan.
The Council said the school said it regularly asked B about targets and incorporated these views into review documents. It said B’s views were included in the individual education plan reviews in March, April, and September 2022.
Regarding the annual review being arranged no later than the autumn term, the Council said the annual review took place at the end of September.
In its stage two complaint response, the Council apologised if there had been any misunderstandings about the phone call with the teacher and the summer review, that any information obtained would be incorporated into B’s individual education plan review.
The Council said the school had reviewed the individual education plan as required. It apologised if Mrs X felt she had not been as involved in target-setting as she expected. It explained how it would address this with the school to avoid this in future.
The Council accepted that the annual review paperwork was sent out with short notice.
The Council had a meeting with Mrs X in April 2023. The Council said B’s final EHC plan should have been issued by 15 February. It said Mrs X wanted certain information included in the plan. It said the reason the EHC plan had not been issued by 15 February was because it was waiting for the information Mrs X wanted included.
The Council issued B’s final amended EHC plan at the end of April.
Analysis How the education, health and care (EHC) plan was reviewed Mrs X complained that the Council failed to review B’s EHC plan the way the plan set out (part a of the complaint).
As above, the EHC plan said the school would hold two parents evenings per year, and termly reviews of B’s individual education plan.
Mrs X said she was not able to attend meetings due to work commitments. She said she never turned meetings down. I do not find this means the Council was at fault. The EHC plan said the school would hold the meetings, which it did. The fact that Mrs X was not able to, or chose not to, attend for whatever reason is not evidence of fault.
The EHC plan also set out certain additional arrangements for reviewing and setting targets. Bullet point A (see above) said that the school, B, and Mrs X would agree certain targets for B and incorporate them into an individualised learning plan within the first two months after the final EHC plan was issued.
In its complaint response, the Council accepted that this had not been achieved. It said the EHC plan was issued at the end of December 2021 and the targets were not agreed until the end of March 2022, outside the two months set out in the EHC plan.
I find there was a delay of one month, but this delay included the winter school holidays. I do not consider this delay significant enough to constitute fault.
I have considered the Council’s complaint responses. These give detailed explanations which show how the outcomes were achieved and what actions were taken. I am satisfied that the outcomes and actions set out in Section F were completed in line with the EHC plan. For this reason, I do not find the Council at fault.
Review paperwork Mrs X complained that the Council failed to send review paperwork at least two weeks before the annual review meeting (part b of the complaint).
The Council accepts the paperwork was not sent at least two weeks in advance of the annual review in September 2022. This is fault. This caused Mrs X injustice in that it caused uncertainty.
Statutory timeframes Mrs X complained that the Council failed to issue the final amended EHC plan within statutory timeframes after the annual review (part c of the complaint). Mrs X said the Council failed to issue an amended EHC plan within 12 weeks of the annual review in September, and also failed to issue the EHC plan by 15 February.
At the annual review in September, the Council decided to maintain the EHC plan. This means no changes needed to be made to the plan, so there was no amended plan to be reissued within 12 weeks. The statutory 12 weeks only applies when a decision is made after an annual review to amend an EHC plan.
For this reason, I do not find the Council at fault for failing to issue an amended EHC plan after the September annual review.
The Council said it intended to issue B’s final EHC plan by 15 February in line with the statutory deadline, because B was transferring between phases of education. However, it said Mrs X sent emails to the Council on 2, 8 and 14 February asking for amendments to the plan. On 3 and 17 March, Mrs X sent additional information she wanted included in the plan.
The Council said on reflection it should have issued the final EHC plan on 15 February in line with the statutory timeframe. I agree. The Council said it was trying to accommodate Mrs X’s views to ensure the plan was suitable for B’s transition to the next phase of education.
The EHC plan should have been issued by 15 February. It was actually issued in late April. This delay of two months is fault.
I have considered whether this fault caused Mrs X injustice. I find Mrs X contributed to the delay by asking for amendments and providing more information to include in the plan. I therefore do not find that this fault caused Mrs X injustice.
Agreed action
Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the uncertainty caused by failing to send annual review paperwork in time.
We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
The Council should provide us with evidence it has complied with the above action.
Final decision
I have completed my investigation. I do not find the Council at fault for part a of the complaint. I find the Council at fault for parts b and c of the complaint. I find the fault for part b caused Mrs X injustice. The Council has agreed to apologise to Mrs X to remedy the injustice caused. I do not find the fault for part c caused Mrs X injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman