The Ombudsman's final decision
Summary: Mrs Y complained the Council’s failed to complete the annual review of her child’s Education, Health and Care Plan within the statutory timescales. The Council accepted it was at fault but Mrs Y did not consider its offer of a remedy for the injustice caused was adequate. We have found fault, as already accepted by the Council, and that its offer is a suitable way of remedying the injustice this caused. We have not asked the Council to take any further action.
The complaint
I am calling the complainant Mrs Y. Her complaint has been brought on her behalf by her representative, who I am calling Mrs X. Mrs Y complains about the Council’s failure to complete the annual review of her child, who I am calling Z’s Education Health and Care Plan within the statutory timescales. The annual review meeting took place in March 2022. But the final amended plan was not issued until August 2023, following a further annual review in May 2023.
Mrs Y says, because of the delay, Z missed out on the additional support they needed. This affected their wellbeing and ability to attend their placement. An Educational Psychologist’s report they had obtained and paid for was not used for the review and is now outdated. The delay also caused them, as parents, worry and upset, frustrated their appeal rights and put them to the time and trouble of complaining.
Mrs Y wants the Council to make a payment as a remedy for the support Z missed, their upset and delayed appeal rights, and reimburse them for the cost of the Educational Psychologist’s report.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint, I spoke to Mrs X, made enquiries of the Council and read the information Mrs X, Mrs Y and the Council provided about the complaint.
I invited Mrs X, Mrs Y and the Council to comment on a draft version of this draft decision. I considered their responses before making my final decision.
What I found
What should have happened Education Health and Care Plans A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or there have been delays in the process.
Arrangements for reviewing an EHC plan Councils oversee delivery of EHC plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
EHC plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
After the review, the council has four weeks to send the child’s parents its decision about whether the EHC plan is to continue; whether it needs changing or if it is to end.
Where a 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 within four weeks of the annual review meeting.
Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. And a recent court case stated amended EHC Plans should be issued within 12 weeks of the annual review.
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 I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
Complaint background Z has had an EHC plan for a number of years. At the start of 2022 they attended an independent school.
March 2022: annual review meeting An annual review meeting of Z’s EHC Plan was held in March.
I understand the information provided for the review included: A report from Z’s Occupational Therapist. This noted Z was engaging better so far this year and seemed more settled at school; Z’s school report for the end of the autumn term 2021. This indicated Z was making good progress; and School parental comments form. This said Z was thriving at the school. They would discuss further ideas about developing Z’s executive functioning and independence skills with the school SENCO at the review meeting.
The annual review document completed by the school for the Council: referred to an Educational Psychologist’s report dated 2017, consultant psychiatrists’ letters and a pediatrician’s letter dated February 2020; the school’s request the provision for daily 1:1 handwriting practice be removed from the plan. It had been agreed a prescriptive approach would be detrimental to Z’s progress and the school was arranging the practice in a sensitive way; and did not refer to any other proposed changes to Z’s current provision The Council’s response to the annual review information The Council did not take any action following the review meeting.
It did not notify Mrs Y whether it intended to maintain, amend, or cease Z’s EHC plan and did not complete the review process.
March 2023: Mrs Y’s complaint Mrs X complained to the Council on Mrs Y’s behalf about its failure to complete the March 2022 annual review of Z’s plan.
May 2023: annual review meeting An annual review meeting was held on 25 May. Mr and Mrs Y, the school’s SENCO and a Council SEN officer attended the meeting.
The annual review document completed by the school for the Council recorded discussion about Z’s difficulties in the school year from September 2022. This included reference to: parents’ comments about the effect on Z of their grandparent’s death just before the start of term and another close family member’s illness, together with the introduction of exam stress. They said these had had a significant impact on Z and their anxiety. The ongoing review of Z’s medication could cause issues until completed.
the school’s report Z’s attendance had been back on track until January 2023. Z was struggling with everything by the end of the Spring term and had been signed off as sick since then; Z was due to see the Educational Psychologist to assess their current support need. Information from the report would be incorporated into the EHC plan; a request for more 1:1 sessions and a personal budget to facilitate overnight sessions and therapy sessions; and the proposal the EHC plan should be amended.
Amended EHC Plan Following the review meeting, the Council issued a draft amended plan on 20 June 2023.
Mrs X sent a redrafted and updated EHC Plan for Z to the Council, on Mrs Y’s behalf. The final amended plan was issued on 8 August 2023.
The Council’s response to Mrs Y’s complaint The Council said it: accepted there had been a delay completing the annual review, following the meeting in March 2022. And that its failure to notify Mrs Y of its decision to maintain, cease or amend the plan was fault; accepted there had been a delay replying to Mrs Y’s complaint made in March 2023; and was working on service improvements following a local area SEND inspection, including the recruitment and implementation of a designated review team.
And in response to Mrs X’s request for financial redress for the impact of the delay on Z and Mrs Y, the Council referred to: Mrs X’s statement the failure to update Z’s needs and provision in the period from March 2022 led to a deterioration in their mental health: The Council said the 2023 annual review documents indicated this deterioration was due to personal circumstances (family bereavement and illness) and a change in Z’s medication. Educational provision was available to Z throughout this period; The Educational Psychologist report Mrs Y obtained in 2020: Mrs X said this indicated a whole raft of needs and provision to be added to Z’s plan. The Council said this report was not mentioned at the 2022 annual review. It had not been shared with the Council and did not feature in the August 2023 final amended plan; and Our published guidance on remedies: It offered an apology for its failures – the failure to complete the annual review within the statutory timescale and delay in responding to the complaint. It also offered a financial remedy of £300 for the upset caused by the annual review delay, and £150 for time and trouble pursuing the complaint.
Mrs Y was not satisfied with the Council’s offer of redress and brought her complaint to us.
My view – was there fault by the Council causing injustice?
The Council accepted, and I agree, its failure to complete the March 2022 annual review within the statutory timescales was fault.
I now have to decide whether the Council’s proposed remedy is a suitable way to remedy the injustice this fault caused and is in line with our expectations as set out in our published guidance on remedies The impact of the failure to complete the review I accept the Council’s failure to complete the annual review process within the statutory timescale caused Mrs Y upset and uncertainty.
But I haven’t seen any information showing concerns about Z’s existing provision or a need for further support were raised at the March 2022 annual review. I note: There was no mention in the annual review documents of any request by either the school or Mrs Y for substantive changes to Z’s EHC Plan. The school and Mrs Y appeared happy that appropriate support for Z’s needs was in place and with the progress Z had made in the school year from 2021; and There was no reference in the documents, including the parental comment form, to the 2020 Educational Psychologist’s report or that this indicated significant additional support needs which should be added to the plan.
And although the school’s request for the removal from the plan of the provision for handwriting practice was not actioned, I don’t consider this caused any injustice. This is because the school confirmed it was already implementing this part of the provision in a sensitive way so as not to trigger Z’s anxiety.
I don’t consider there is any indication in the 2023 annual review documents Z’s difficulties in the school year from September 2022 were due to any issues with the provision in their existing EHC Plan.
I have not found Z missed out on any additional provision which would have been in place but for the failure to complete the 2022 review.
Proposed remedy I don’t consider it appropriate to recommend the Council reimburse Mrs Y for the cost of the 2020 report. I have not seen any information showing it was raised by Mrs Y at the March 2022 review or of its relevance to the issues discussed at the meeting.
We may recommend a symbolic payment to recognise injustice. We only recommend a payment, normally an amount up to £500, as a remedy for distress we decide is significant.
In my view, the Council’s offer of a payment of £300 to reflect the upset caused by its failure to complete the 2022 review, and £150 for time and trouble pursuing the complaint is in line with the expectations in our guidance. It also offered to apologise to Mrs Y for its faults.
We recently asked the Council, as a service improvement recommendation in another case, to ensure officers in the SEND team receive training on the actions they need to complete following receipt of annual review meeting minutes.
I have not asked the Council to take any further action.
Agreed action
To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed, in accordance with the offer in its final complaint response, to: apologise to Mrs Y for its failure to complete the 2022 annual review within the statutory timescales and its delay in responding to her complaint. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider the guidance in making this apology; and pay Mrs Y £450 to reflect the upset and time and trouble caused by its failures. This is a symbolic amount based on our guidance on remedies.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault by the Council, as set out above, causing injustice. The Council has agreed to carry out the above action, as it offered to do in its final complaint response, as a suitable way to remedy the injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman