Summary: Ms T complains the Council delayed completing an annual Education, Health and Care Plan review for her daughter X from November 2022. There was fault by the Council. It has already provided a suitable financial remedy for the injustice to Ms T. The Council also agreed a service improvement.

The complaint

1. Ms T complains the Council delayed completing her daughter X’s EHC Plan annual review from 2022 and delayed confirming it would not amend it. She says the Council did not give her the right of appeal in its decision letter. She also says her daughter has not had adequate alternative provision from September 2023 due to only being able to attend school part time. She says her daughter’s needs have not been met and this has affected her mental health.

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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 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)
3. 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.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. I have investigated the Council delay in issuing a Plan from November 2022 to November 2023 when it issued a decision.
11. We cannot investigate matters connected to the appeal or Ms T’s complaints about how the Council considered alternative provision, or how it delivered the content of X’s EHC Plan from November 2023.
12. This is because Ms T used her right of appeal to the SEND Tribunal. The courts have confirmed that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal. Ms T disagreed with the content of X’s EHC Plan, and appealed the Council’s decision not to change X’s Plan.

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How I considered this complaint

13. I have discussed the complaint with Ms T and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Ms T and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

14. 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 tribunal or the council can do this.

Reviewing EHC Plans

15. The council must arrange for the 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue 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)
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Alternative provision

18. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))

What happened

19. What follows is a brief summary of key events. It is not necessary for me to detail everything that happened here.
20. X has a diagnosis of autism and ADHD. She also has physical health conditions which cause pain. She has an EHC Plan which the Council first issued in 2021.
21. In November 2022 the Council was required to complete an annual review of X’s EHC Plan. However, an annual review meeting was not held by the school. In its response to my enquiries the Council confirmed it does not have any records to show whether it took action about the review meeting delay. In addition, it said the previous case officers are no longer employed by the Council, so it is unable to get officer’s recollection of the reasons for the delays.
22. In mid-April 2023 the school held an annual review meeting. The Council should have issued a draft plan and confirmed whether it would maintain, amend or discontinue the plan as soon as possible because it was already overdue.
23. In response to my enquiries the Council says it does not have file notes about the Council’s actions from April 2023. It states there was a change in the case officer for the school and progress was affected by staffing levels in the SEN team.
24. On 30 November 2023 the Council wrote to Ms T to confirm it would not make any changes to X’s Plan. The Council explained how Ms T could appeal to the SEND Tribunal. It said she should contact an independent mediation advisor.
25. In January 2024 Ms T formally requested the Council urgently reassessed X’s needs because her special educational needs were not being met. She said the Council should carry out assessments including:
• an educational psychologist’s assessment
• speech and language assessment
• occupational therapy assessment of X’s physical and sensory needs
26. The Council treated Ms T’s request as a complaint at the early resolution stage of its procedure. It upheld her complaint because it accepted there were delays in the annual review process. It proposed holding an emergency annual review for X and said that a case officer would contact Ms T within 10 days.
27. Ms T responded that the delay in carrying out the annual review was not her only complaint and an emergency annual review would not resolve matters. She said she had paid for a speech and language assessment, but the school had not added the provision. She had also paid for a laptop because the school said it would not fund this.
28. In late January 2024 the Council’s Education Governance Board Panel decided it would not accept Ms T’s request for a reassessment of X’s needs. This was on the basis that X’s annual review was due to be completed in March.
29. In February 2024 Ms T complained to the Council that it had failed to provide supportive education for X since 2021. In her view there was disability discrimination by the Council. She said:
• The annual review due in 2022 was delayed by 5 months.
• The Council’s case officer did not acknowledge the annual review for 7 months.
• X had new medical diagnoses and the Plan did not reflect her needs and the required provision. However, the Council had refused to reassess X.
30. Ms T asked the Council to carry out an immediate reassessment of X’s needs and provisions. In addition, she asked for educational services for missed support. She confirmed that she would appeal the Council’s decision not to reassess X.
31. Following mediation, the Council agreed to consider Ms T’s reassessment request and her request for an educational psychologist’s report. However, the Council’s Panel refused Ms T’s requests. The Council advised Ms T of the Panel’s decision, but it does not appear it advised her about her appeal rights.
32. In March 2024 the Council replied to Ms T’s complaint. It agreed the Council had not followed the annual review statutory timescales and the amendments were not fully considered. It noted Ms T asked for a reassessment. The Council’s Panel had considered this but refused. It considered this again recently but refused. It said the 2024 annual review was about to take place and would allow the Council to consider all the information received from professionals. The Council apologised to Ms T and said it had taken on more staff to support with annual review work.
33. Ms T complained at stage two of the Council’s procedure. She said it had:
• Not followed the annual review process correctly since 2021.
• Not included recommended changes to the Plan.
• Not provided a remedy for its delays.
• Delayed properly responding to her complaints through its procedures.
• Not provided the correct decision letter informing her of her right of appeal following the panel’s decision in early March. As a result, she could not appeal.
34. The Council sent its final response in early April 2024. It upheld her complaint that it had not followed the annual review process and agreed this caused injustice. It said that it should have reviewed the Plan in 2022 but the review was held in May 2023. The Council also said its “No change” letter sent in November 2023 was 16 weeks past the deadline to inform Ms T, and delayed her right of appeal. The Council apologised for its faults. It said it would consider a symbolic remedy for the injustice caused by the delays in the annual review process in 2022 and 2023.
35. The Council later offered £1000 to Ms T as a remedy to acknowledge the frustration and uncertainty caused by its delays in the annual review process.
36. In its response to my enquiries the Council explained it offered £1000 taking into consideration that Ms T had the opportunity to complain earlier and that its “no change” letter was delayed by seven months. The Council considered it had set out Ms T’s appeal rights in its “no change” letter of November 2023.
37. Ms T has now appealed to the SEND Tribunal regarding the Council’s decision not to change T’s plan in November 2023.

Analysis

38. The Council has already accepted that it delayed progressing X’s annual review in 2022 and 2023. The Council did not keep to the statutory timescales. This was fault and caused frustration and uncertainty to Ms T.
39. I consider that the Council has remedied the injustice caused by apologising and paying £1000 to Ms T. This is an appropriate remedy in the circumstances, and in excess of what we would normally recommend in these circumstances. I have taken into account that X’s Plan did not change and so she did not miss out on potential additional provision. The Council has also taken steps to prevent delays to other annual reviews by ensuring more staff are available to carry out this work.
40. There was fault by the Council regarding information it gave Ms T in March 2024 when its panel refused to reassess X’s Plan. The Council sent Ms T confirmation that the panel refused. But I have not seen evidence it explained the right of appeal to a Tribunal with the Panel’s decision. Ms T complained about this, but the Council did not explain how she could appeal. This caused Ms T frustration and time and trouble. I understand that Ms T has now appealed, and the Tribunal will consider this.

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Agreed action

41. Within one month of my decision, I recommended the Council
• apologises to Ms T that it did not explain the next steps to appeal in March 2024.
• reminds officers they should ensure the correct right of appeal information is provided in decision letters following Panel decisions on EHC Plans.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I found fault causing injustice. The Council has agreed my recommendations for a remedy. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman