The Ombudsman's final decision
Summary: Mrs X complained the Council significantly delayed reviewing her child, Z’s, Education, Health and Care Plan. The Council was at fault, which caused Mrs X avoidable frustration and uncertainty and delayed her right of appeal. The Council will apologise and pay Mrs X £400 in recognition of that injustice.
The complaint
Mrs X complained the Council significantly delayed reviewing her child, Z’s, Education, Health and Care Plan. Mrs X said this delayed her right of appeal. She said this caused her frustration and had a negative impact on Z’s wellbeing and development.
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 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.
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 have considered: all the information Mrs X provided and discussed the complaint with her; the Council’s comments about the complaint and the supporting documents it provided; and the relevant law and guidance and the Ombudsman's guidance on remedies.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Education, Health and Care Plans 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this.
The EHC Plan is set out in sections which include: Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placement The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. This is called the annual review. There are two parts to an annual review. First, the council must hold a meeting to review the child’s progress towards the outcomes in their EHC Plan and whether there are any changes that need to be made to the content of the Plan. Councils often ask the child’s school to run the annual review meeting on their behalf.
Second, within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain (leave unchanged), amend or discontinue (stop) the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) If the council decides to amend the child’s EHC Plan, it must do so within twelve weeks of the annual review meeting.
What happened Mrs X’s child, Z, has an EHC Plan which sets out a large number of strategies for staff to use to help develop their social skills and understanding of teaching and instructions. The Plan also aims to increase Z’s independent learning and time spent in class.
In late March 2023, the mainstream school Z attends held an annual review meeting on the Council’s behalf. At the meeting, the school and Mrs X agreed to ask the Council to find a new school.
Mrs X asked the Council to consult with two special schools. One was unable to offer Z a school place. The other (school A) assessed Z in late September 2023 and offered them a school place.
In late October 2023, the Council held a panel meeting to decide if it should name school A in Z’s EHC Plan. The panel decided the Council should seek more information.
Mrs X complained about the delay and the Council responded to acknowledge it had taken more than four weeks to issue its annual review decision. It said this was because it had hoped to finish consulting with school A first.
The Council sought further information and held a second panel meeting. The panel decided it would not name school A in Z’s EHC Plan and in late December 2023, the Council issued its decision to maintain Z’s Plan unchanged. It continued to name the school Z was already attending.
Mrs X appealed the Council’s decision in January 2024. She wants the Council to name school A in Z’s Plan. The SEND Tribunal has listed Mrs X’s appeal hearing for January 2025.
A review of the Ombudsman’s decisions in the past twelve months shows we upheld one complaint about annual review delays. We recommended the Council remind its SEND team of the duty to comply with the statutory timescales after an annual review of a child’s EHC Plan. The Council is due to complete that recommendation by mid-April 2024.
Findings
The school held Z’s annual review in late March 2023. However, the Council did not issue its decision to maintain Z’s EHC Plan, and therefore finish the annual review, until late December 2023. This was 37 weeks after the review meeting; more than eight months longer than the Council should have taken. The level of delay was unacceptable and was fault.
The Council told Mrs X it had delayed completing the annual review because it hoped to finish consulting with her preferred school first. There are no reasons set out in law or statutory guidance that allow for a delay in issuing an annual review decision. The Council should have issued a decision to amend or maintain Z’s Plan by late April 2023 and then consulted with schools. If the Council had decided to maintain Z’s Plan, it would have issued that decision, and given Mrs X’s her appeal right, by late April 2023. If it decided to amend Z’s Plan, it would have done so by late June 2023.
The delay caused Mrs X significant avoidable frustration and uncertainty and most importantly, delayed her right to appeal to the SEND Tribunal. Because of the delay, Mrs X will now not receive a decision on her appeal until January 2025.
However, I cannot say the delay caused Z an injustice. This is because Mrs X has appealed to change the placement in their Plan. I do not know what the Tribunal’s decision will be. In addition, the Tribunal’s decision will be based on the facts it hears at the time of the hearing. Because of this, even if I knew the appeal outcome, it would not be possible to say even on the balance of probabilities, that the Tribunal’s decision at the time of the hearing would be the same as what it would be had the Council not delayed.
The Council recently agreed to remind its staff they must meet the timescales for completing annual reviews. The Council is currently carrying out that recommendation, so I have not made a further one.
Agreed action
Within one month of the date of my final decision, the Council will take the following actions.
Apologise to Mrs X for the significant uncertainty and frustration she felt and the impact of her delayed right of appeal due to its delay reviewing Z’s EHC Plan.
Pay Mrs X £400 in recognition of that injustice.
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 the apology I have recommended.
The Council will provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman