Summary: Miss X complains the Council has failed to complete its annual review process for her child, Y. Since complaining to the Ombudsman, the Council has since issued Y’s finalised EHCP. We have concluded our investigation having made a finding of fault by the Council. The Council did not adhere to the statutory timescales throughout the process, and this caused Miss X an injustice. The Council has agreed to our recommendations.

The complaint

1. Miss X complains the Council has failed to complete its annual review process for her child, Y. Miss X says that despite proposing to amend the EHCP, the Council has not issued a finalised version. Miss X says this caused distress and uncertainty and has delayed her right to appeal. Miss X would like the Council to finalise the EHCP and provide the funding that was allocated for provision.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I spoke with Miss X and considered the information she provided. I also considered the information the Council provided. Miss X and the Council will now have an opportunity to comment on my draft decision. I considered the comments provided by Miss X and the Council in response to my draft decision.

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What I found

Relevant law and guidance

Education, health care plans

5. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (the Code) gives more details about how Councils, schools and others should carry out their duties.
6. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
7. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a Council has not ensured provision, or where there have been delays in the process.
8. The Code says Councils must review EHCPs at least annually. The review should focus on a child’s progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
9. Councils must give notice to all those invited and seek advice and information from all parties. Following the meeting, Councils must share a report with all parties within two weeks setting out any recommendations and amendments.
10. The Council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
11. The Code explains a Council should name the parents’ preferred school in the EHCP. The exception to this is if it would not be an efficient use of resources or would be prohibitive to the efficient education of others.
12. Where the young person is due to transition from primary to secondary education, the Council should review the EHCP and issue a final amended plan by 15 February, before the transition in September. The amended plan will either specify a type of secondary education or name the educational setting.
13. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Background

14. Miss X brought a similar complaint to our service regarding delays following Y‘s annual review in 2021. In this complaint, the Ombudsman made a finding of fault. The Council concluded that delays in the process were due to staff absence, and administrative difficulties when Miss X and Y were transferred between different SEN teams.
15. To address this, the Council said it had reminded staff of the statutory timescales for completing the annual review process. Further, the Council also said it would change its process for how it allocated cases where staff are away from work for significant periods.
16. I have considered how the Council can build on the recommendations set out in the Ombudsman’s previous decision, and what further opportunities for learning exist.

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What happened

17. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
18. Miss X’s child Y has an EHCP. In January 2022, the annual review meeting was held to discuss Y’s EHCP.
19. Miss X sent three complaints to the Council in March 2022 that it had not informed her of its intention to maintain or amend Y’s EHCP.
20. Later in March 2022, the Council sent Miss X its amendment notice.
21. Later that day, the Council sent Miss X Y’s draft amended EHCP.
22. In May 2022, unhappy with the Council’s response, Miss X escalated her complaint to stage 2 of its complaints process.
23. In October 2022, the Council issued Y’s final EHCP.

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Analysis

24. As per paragraph X, the Council has four weeks from the review meeting to decide whether to maintain or amend an EHCP. Following Y’s annual review meeting in January 2022, the Council should have informed Miss X of its decision in February 2022. The Council did not do so until March 2022, and here I have made a finding of fault. This caused Miss X distress and uncertainty.
25. The Council were further delayed in issuing Y’s final EHCP. It is expected that a Council should issue the final EHCP between weeks 17 and 20. The Council did not do so until October 2022, 40 weeks later, and here I have made a further finding of fault. This would have also caused Miss X further distress and uncertainty.
26. Delays in issuing the EHCP would have also meant a delay in Miss X receiving her appeal rights. It is not clear whether Miss X intends to appeal Y’s EHCP. In any event, we would not be able to pre-empt the outcome of an appeal. Should Miss X successfully appeal Y’s EHCP, she may wish to ask the Council to remedy any further injustice arising due to the delayed appeal. Miss X may also contact the Ombudsman again should she not be happy with the Council’s response.
27. I have reviewed Y’s EHCP and I cannot see that any of the provisions specified in Y’s original EHCP changed in the amended final EHCP, therefore I cannot see that there has been a significant injustice caused to Y as a result of these delays. The Council has confirmed that Y has not missed any provisions, funding or payments as a result of delays in the process.
28. The Council says it has since reviewed matters and acknowledges that it incorrectly decided to amend Y’s EHCP. The Council says that in the absence of any significant amendments, it should have informed Miss X that it would be maintaining Y’s EHCP instead, and here I have made a finding of fault. Given there were no significant amendments to the EHCP, as the Council has said, the EHCP should have been maintained, and such a decision is likely to have contributed to the delays and caused Miss X further distress and frustration.
29. The Council has not been able to substantiate what exactly caused delays throughout the process but says that high workloads and staff turnover have been a contributing factor. The Council has offered Miss X an apology, acknowledging the distress and frustration caused, but I do not think this is proportionate to the injustice suffered, and I have made recommendations below.

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Agreed action

30. To resolve matters, and prevent similar occurrences, the Council has agreed to:
1. Pay Miss X an amount of £150 for the distress, confusion and uncertainty caused by delays and errors in the annual review process. This also considers the loss of opportunity to have an appeal heard sooner.
2. Pay Miss X an additional £100 for the time and trouble spent chasing and complaining to the Council that could have otherwise been prevented.
3. Ensure relevant staff are appropriately trained with respect to the annual review process. The Council should ensure staff are aware of the statutory timescales, and the correct processes when it decides to amend or maintain a EHCP.
31. The Council will complete actions a-b within one month of the Ombudsman’s final decision, and action c within three months of the Ombudsman’s final decision.

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Final decision

32. I have concluded my investigation having made a finding of fault by the Council. The Council did not adhere to the statutory timescales throughout the process, and this caused Miss X an injustice. The Council has agreed to the recommendations we have proposed.

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Investigator's decision on behalf of the Ombudsman