Summary: Mrs B complained the Council failed to comply with the statutory process for completing an annual review of her child, Y’s, Education, Health and Care Plan and failed to secure access to suitable, full-time education. We have found the Council at fault for a delay in completing the annual review and failing to consider whether the provision it provided Y was adequate for her needs. This has caused distress, frustration and uncertainty to Mrs B and Y. The Council has agreed to apologise and make a symbolic financial payment to remedy the injustice caused by the faults identified.

The complaint

1. Mrs B complained the Council:
• Failed to comply with the statutory process for completing her child, Y’s, annual review.
• Failed to secure access to suitable, full-time education for her child.
• Failed to deliver the provision set out in section F of her child’s Education, Health and Care Plan (EHCP).
• Failed to communicate with her during the annual review process.
• Failed to complete school consultations and secure a suitable school placement.
2. Mrs B says her child has missed around 19 months of education and section F provision and this has caused social isolation for her child and the family. Mrs B says the family’s mental health has been significantly impacted, family relationships negatively affected and there has been a financial burden for the family. Mrs B would like the Council to apologise to Y and pay the family compensation.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

7. I have investigated Mrs B’s complaint that the Council:
• Did not comply with the statutory process for completing the annual review.
• Failed to secure access to suitable, full-time education.
• Failed to deliver the special educational provision set out the EHC Plan.
• Failed to communicate with her during the annual review process.
8. I have not investigated Mrs B’s complaint the Council failed to complete school consultations and failed to secure a suitable school placement as this is closely linked to Section I of the EHC Plan and Mrs B has a right to appeal to the SEND Tribunal.

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How I considered this complaint

9. I discussed the complaint with Mrs B and considered the evidence she provided.
10. I made enquiries of the Council and considered its response.
11. Mrs B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

12. 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. 
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Annual reviews

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. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

Council’s complaints policy

18. The Council has a two stage complaint process.
19. At stage one it aims to provide a response to complaints within 10 working days. If it needs more time to respond it should contact the complainant and inform them of this.
20. If a complaint is escalated to stage two the Council aims to provide a response within 20 working days. It should notify the complainant if there is any delay in the response being provided.

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What happened

Annual Review

21. Mrs B phoned the Council in March 2023 and made it aware Y was struggling to attend school.
22. The school held an annual review meeting 4 days later. Following the statutory timeframes for completing an annual review, the Council should have issued its decision and proposed amendments in April 2023. The Council should have issued the final amended EHC Plan in June 2023.
23. The Council wrote to Mrs B in May 2023 to tell her the school had not provided the annual review paperwork in the correct format. The Council contacted Mrs B again 2 days later to tell her it had reviewed the annual review paperwork and would be amending Y’s EHC Plan. The Council sent Mrs B the amendment notice in June 2023.
24. The Council did not issue Y’s final amended EHC Plan until July 2024. This is a delay of about 13 months.

Access to education

25. Mrs B made the Council aware Y was struggling to attend school in March 2023. The Council advised it would complete an annual review to decide if it needed to amend Y’s EHC Plan to support her access to education.
26. The Council told us between March 2023 and July 2024, Y was on a reduced timetable within the school setting. It said during this time she received alternative provision which included swimming lessons, forest school, play therapy and tuition.
27. From the evidence available, it appears Y accessed between 6 and 9 hours of tuition per week from May 2023. The alternative provision mentioned above was not available to Y until January 2024.
28. The Council has not provided any evidence of its decision making when deciding what provision was necessary. The Council accepted Y did not receive the special educational provision detailed in her EHC Plan between March 2023 and July 2024 and the provision it put in place may not have been adequate.

Correspondence and complaint handling

29. Between March 2023 and July 2024 Mrs B and the Council were in regular contact to discuss the annual review and Y’s access to education. During this time there were occasions where Mrs B asked the Council for updates and answers to questions, but the Council responded promptly and remained in conversation throughout the process.
30. In August 2023 Mrs B sent a stage one complaint to the Council about Y’s annual review and access to education. The Council provided its response four months later, in December 2023. I have seen no evidence the Council contacted Mrs B to make her aware of the delay or give her a date on which she could expect the response.
31. Mrs B escalated her complaint to stage two in January 2024. The Council provided its stage two complaint response 34 working days later, in March 2024. The Council wrote to Mrs B in February 2024 to inform her of the delay.

My Findings

32. The Council did not send Mrs B the amendment notice when it told her it was going to amend Y’s EHC Plan. This is fault which caused Mrs B and Y uncertainty.
33. There was a delay of around 13 months in the Council issuing Y’s final EHC Plan following the annual review meeting which took place in March 2023. This is fault which caused Y and Mrs B distress, frustration and uncertainty.
34. Y could not access full-time education between March 2023 and July 2024. From May 2023, Y received 6 to 9 hours of weekly tuition. From January 2024, Y received alternative provision alongside a reduced timetable. The Council has accepted it does not know whether this package was adequate for Y’s needs. This is fault which has caused Mrs B and Y uncertainty, frustration and distress.
35. I have found no evidence of fault in the Council’s communication with Mrs B throughout the annual review process. The Council remained in contact with Mrs B throughout the process and responded to her regularly.
36. The Council failed to adhere to its complaints policy in responding to Mrs B’s stage one complaint. The delay and failure to tell Mrs B of the delay is fault which caused Y and Mrs B frustration, distress and uncertainty.
37. The Council has developed a SEND action plan and is undergoing a significant transformation programme. We are overseeing the Council’s wider SEND strategic plan which includes the issues identified in this decision, therefore I have not made any service improvement recommendations.

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Agreed action

38. Within one month of the final decision the Council will:
• Apologise to Y and Mrs B for the faults identified. 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 its apology.
• Make a symbolic payment of £1,000 to Mrs B to recognise the distress, frustration and uncertainty caused by the delay in completing the annual review and issuing the final EHC Plan.
• Make a symbolic payment of £1,750 to recognise the distress, frustration and uncertainty caused by the Council’s failure to provide access to suitable,
  full- time education and section F provision between March 2023 and January 2024, and the failure consider whether the education and alternative provision it provided for Y from January 2024 was adequate for her needs.
• Make a symbolic payment of £250 to Mrs B to recognise the distress, frustration and uncertainty caused by the delay in responding to her stage one complaint.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman