Summary: There was delay by the Council in issuing a decision following an annual review meeting. This meant that a reassessment and replacement of an Education, Health and Care plan took four months longer than it should have. This in turn delayed the School being able to implement all the up to date recommendations and interventions and caused injustice to the child. Recommendations for a financial payment and service improvements are made.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains that:

• The Council delayed in providing a decision to amend her son’s Education, Health and Care (EHC) plan after it received the annual review documentation on 2 July 2020.
• The Council decided to amend the Plan but delayed in doing so.
• This in turn delayed extra provision to support Ms X’s son and extra funding being provided to his school.
• The funding provided was not enough to cover the cost to the school of providing the support.
• There were delays in officers responding to correspondence.
• While parts of Ms X’s complaint were upheld the Council offered no remedy for the injustice caused.
• The delay has had an adverse impact on Ms X’s son’s education and caused additional time and trouble to Ms X.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. If we are satisfied with a council’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)

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How I considered this complaint

5. I have considered information provided by Ms X and the Council including the June 2020 annual review records, the EHC plans of 2017 and 2021 and the Council’s special educational needs (SEN) file for Ms X’s son.
6. I have considered relevant law and statutory guidance:
• The Children and Families Act 2014
• The Special Educational Needs and Disability (SEND) Regulations 2014
• The SEND Code of Practice, 2015.
7. I have considered the Ombudsman’s Focus Reports on EHC plans and Guidance on Remedies.
8. 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.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. An EHC plan must be reviewed at least every twelve months. An annual review meeting must be held and if the child attends a school, the school should prepare a written report with recommendations within two weeks of the review meeting.
11. The Council must decide within four weeks of the meeting whether to amend the plan, cease the plan or keep the plan the same and notify the parent of its decision.
12. At any time a Council can decide to carry out a statutory reassessment of the child’s needs if it considers this is necessary. The process for reassessment is the same as for a first assessment. The overall maximum timescale from the decision to reassess to the issuing of any amended final EHC plan is fourteen weeks, however the Council should aim to complete the process as soon as practicable.
13. The Government amended the SEND Regulations due to Covid-19 between 1 May and 25 September 2020 to relax time periods from a set time to a requirement action be taken as soon as reasonably practicable. This included:
• Making decisions after an annual review (SEND Regulation 20(10))
• Notification of decision whether it is necessary to re-assess EHC provision. (SEND Regulation 25(1))

What happened

14. Ms X’s son’s first EHC plan was issued in 2017. Records provided by the Council including from the school show regular multi-agency meetings were held to review the provision. In December 2019 Ms X’s son was noted to be making good progress in his mainstream primary school, was settled and highly supported in class with various interventions in place to meet his needs. It was proposed that at the next review banding (funding provided to the school from the Council to support interventions) could be reviewed as well as whether the primary need needed to be changed. The School was to arrange for an educational psychologist (EP) to do a cognitive assessment.
15. At a meeting in February 2020 the EP report had been completed, as had a speech therapy assessment and advice from an occupational therapist (OT) was awaited.
16. The annual review meeting was held in June 2020. The School provided a report of the meeting and recommendations to the Council on 2 July. The School noted new professionals were involved who had confirmed Ms X’s son’s needs had changed and increased. The School requested additional funding via higher banding to meet Ms X’s son’s needs.
17. The Council sent the request to its panel on 19 August but no documentation was available to the panel on two consecutive occasions so it could not consider the case. The Council did not notify Ms X of a decision following the annual review until 22 October 2020. The Council informed Ms X its decision was that it needed to carry out a reassessment as her son was reported to have met or partially met his EHC plan outcomes and to be making good progress yet was below age related expectations. It said the reassessment would ensure the EHC plan accurately described the needs and provision.
18. The Council did not issue a final EHC plan until 26 February 2021, about a month later than fourteen weeks from when the reassessment started. The Council told me there was a slight delay in receiving advice from health and delay between issuing the draft and final EHC plans when it liaised and met Ms X to resolve her concerns about the Plan.
19. The evidence I have seen indicates that Ms X’s concerns related to the Council’s decision to issue an amended EHC plan with the same banding (Band E) as had been awarded to the School under the 2017 plan. The School provided the Council with a timetable showing parts of the week when Ms X’s son would not have the benefit of adult support and indicated it could not implement all of the recommended interventions with Band E funding. It said that this barely covered the existing provision and that to meet the provision in full would require extra funding available at Band G.
20. The case went back to the Council’s panel which awarded Band F funding (an additional £1450 funding over Band E), which I understand the School has agreed to although it was £2850 less than the funding band School had requested. The EHC plan was then issued.
21. Ms X complained about the delay in updating the EHC plan between June 2020 and February 2021. The Council acknowledged fault in that there had been delay and administrative errors in submitting the case to panel between July and October 2020 and apologised to Ms X.

Analysis

22. Usually after an annual review the Council will decide to amend the plan, keep the plan the same or cease the plan. Where they decide to amend this should be done without delay. Ms X therefore expected a decision within four weeks of the annual review meeting and then amendments to be made quickly.
23. It was however open to the Council to judge circumstances had changed sufficiently that it needed to carry out a reassessment. This was a professional judgment for the Council and the Ombudsman has no jurisdiction to intervene in this decision. (Local Government Act 1974, section 34(3), as amended)
24. This meant that the process to reassess and then replace the Plan could lawfully take up to fourteen weeks although this was the maximum timescale.
25. I do not know the exact date of the annual review meeting from which the Council would usually have to make their decision within four weeks. In Summer 2020 the Government relaxed time periods for some SEND Regulations and so the Council was to make the decision as soon as reasonably practicable. The Council‘s complaint response accepted it was fault that it did not make its decision within four weeks of receiving the school’s report. The Council did not seek to rely on relaxation of time periods due to Covid-19. The Council has given the wrong timeframe here as the period in SEND Regulation 20 is four weeks from the date of the meeting not four weeks from the date the Council receives the report.
26. The Council said the reason for not meeting this timescale was the failure to provide documents to two SEND panels and staff absence.
27. Councils can use panels to assist in making consistent decision making but this must not add delay or amend the timescales. It appears that the first panel meeting was not until 19 August, so even if the panel had received the correct documents, the Council would still have missed the four week timescale. The panel did not make a decision until late October.
28. If the Council had made its decision after the review meeting promptly then I find the reassessment would have started no later than the end of July and been completed by the first week of November, almost four months earlier than the final EHC plan was issued.
29. I am not persuaded that the delay between the draft and final plans was due to Ms X requesting amendments to the Plan. The evidence I have seen indicates Ms X’s concern related to the funding band that had been allocated which Ms X challenged as inadequate. The Plan did not mention the funding band and I can see no reason why the dispute about banding should have affected the date the final EHC plan was issued. Ms X’s son was already attending the School so this was not a case where a school might have refused to admit until funding was resolved. Funding and banding decisions are not matters I would expect a parent to need to involve themselves in. This should have been a negotiation between the School and the Council. Once the EHC plan is issued it is the responsibility of the Council to secure the provision and if it intends to do this via attendance at a school it is for the Council to ensure the school has sufficient funding in place to secure all the special educational provision in the Plan.
30. The Council says the delay did not alter Ms X’s son’s provision as he received what he should have done under each version of the Plan. The later EHC plan however included new recommendations and reflected changed needs and provision to what had been recommended in 2017. The delay in receiving a plan that reflected Ms X’s son’s current presentation was an injustice. Correspondence from the School indicated it could not afford to put in place the provision in the new Plan until funding above Band E level was made available. The four month delay did therefore cause Ms X’s son an injustice.

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Agreed action

31. The Council has already apologised to Ms X and says it has taken internal measures to avoid a repeat of the situation where the panel did not have the correct documents available to it.
32. Within four weeks of my final decision, I recommend the Council:
• Pay £800 to Ms X’s son to acknowledge that ‘but for’ the Council’s delay the amended EHC plan would have been in place sooner and he would have received the updated support and interventions the new Plan provided for. The money should be paid into an account in the child’s name but managed by parents.
• Pay Ms X £200 for her time and trouble bringing the complaint and having to intervene on behalf of the school to resolve the issue of sufficient funding.
33. Within eight weeks of my final decision, I recommend the Council review its processes for making decisions after annual reviews to ensure that:
• The date of the review meeting is noted and a diary entry made to ensure decisions are issued within four weeks of this date.
• If panels are to be used that meetings are scheduled at sufficiently frequent intervals that statutory timescales for issuing decisions on EHC assessments and plans are met.

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Final decision

34. I have completed my investigation. There was delay by the Council in issuing a decision following an annual review meeting. This meant that a reassessment and amendment of the EHC plan started four months later than it should have done. The new Plan did come with new interventions and a higher requirement for adult support and funding. But for the Council’s fault the new Plan would have been in place four months sooner. This was an injustice. I am satisfied the recommended actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman