Summary: The Council’s delay issuing an amended Education, Health and Care Plan following Child Y’s annual review was fault. The Council was also at fault for its approach to school admissions for children with EHC Plans. The Council has agreed to apologise, make payments to Child Y and Ms X, issue an amended Plan, and act to improve its services.

The complaint

1. Ms X complained the Council failed to decide whether to maintain or amend her child’s Education, Health, and Care plan within four weeks of the annual review.
2. As a result, Ms X says the Council has delayed making important amendments to her child’s EHC plan and denied her the opportunity to request a particular school place for her child’s move to secondary school.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I spoke to Ms X about the complaint and considered the information she and the Council provided.
6. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
7. 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

Education, Health and Care Plans

8. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
10. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Annual reviews

11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a 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)
14. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)

Key transfers

15. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

16. Ms X’s child, whom I shall call Child Y, has an EHC plan. Child Y is in primary school and will start secondary school in September 2023.
17. In November 2022, Child Y’s school held an annual review of the EHC plan. Ms X and an officer from the Council attended this meeting. This was the last annual review prior to Child Y’s transfer to secondary school.
18. In January 2023, Ms X contacted the Council to ask about the outcome of the annual review meeting. Ms X says the Council told her it would investigate the matter and call her back. She says she did not get a call back. On the same day, the Council contacted Child Y’s school to ask it to send the reports following the annual review.
19. A week later, Ms X complained to the Council about the lack of an amended plan following the annual review. On the same day, the Council contacted the school again to ask it for the reports in order to complete Child Y’s amended EHC plan.
20. The Council responded to Ms X’s complaint in late January. It said the school had a duty to send the Council the annual review documents and had not done so. Ms X asked the Council to consider her complaint at stage two of its process.
21. The Council responded to Ms X’s stage two complaint in early February. It said that because the school was not a maintained school, it was not under the Council’s control. It said it would continue to ask the school for the documents and suggested that Ms X might also ask the school directly to share the required reports.
22. The Council required Ms X to apply for school places for Child Y through its school admissions process. The deadline for this was October 2022. On March 1, 2023 the Council offered Child Y a place at Ms X’s first choice school. Ms X says, however, that she is concerned this school cannot meet Child Y’s needs and wants the EHC plan to name her second-choice school instead.
23. As of April 2023, the Council has not issued an amended EHC plan.

My findings

24. The law says the Council must decide whether to amend or maintain an EHC Plan within four weeks of the annual review meeting. It has been almost six months and the Council has yet to make this decision and issue an amended plan. This is fault.
25. The Council says it needs reports from the school to amend Child Y’s plan which it has not received. It is not the fault of the Council that the school has not provided these reports. However, the Council has a statutory duty to make decisions about EHC plans within the set timescales. Despite this, it did not contact the school within the four weeks after the annual review meeting, or at any time before Ms X contacted the Council in January, to request the reports. It appears the Council only contacted the school at all because Ms X complained. The Council should have chased the school earlier and failure to do so was fault.
26. Furthermore, an officer from the Council attended the annual review meeting and participated in the discussions about the proposed changes to the plan. The officer should have been able to provide the information needed to produce an amended plan.
27. As a result of the Council’s fault, Child Y does not have an up-to-date EHC plan setting out the provision required to meet their special education needs. This means any amended provision has not been in place for Child Y. This is an injustice to Child Y.
28. This is particularly significant when a child is in a Key Transfer year. Ms X says other children with EHC plans have been contacted by secondary schools to begin transition planning. Because Child Y has no EHC plan naming a secondary school, this has not happened for Child Y. This is an injustice to Child Y.
29. Children with EHC plans transitioning from primary to secondary school should have a final EHC plan naming a school or type of school by February 15 at the latest. Ms X described her anxiety about not knowing where Child Y would go to secondary school or whether the school could meet Child Y’s needs. This is an injustice to Ms X.

Naming a school for Child Y

30. Children with EHC plans are not usually required to go through the school admissions process. Instead, Section I of the plan should name a school, or type of school. The Council must name the school requested by a young person or their parent unless:
• The setting is unsuitable for the child’s SEN; or
• The child’s attendance would be incompatible with the provision of efficient education for others; or
• The child’s attendance would be incompatible with the efficient use of resources.
31. The court has said that for children with SEN, the provision needed to meet their needs has to be identified before the school or type of school appropriate to provide it can be named. (The Learning Trust v MP [2007] EWHC 1634 (Admin))
32. When the Council sends a draft EHC plan to Ms X it must not name a school or type of school in Section I. The Council must give Ms X the right to ask the Council to name a particular school in Section I as part of the consultation on the draft Plan. (Children and Families Act 2014 section 38(2)(b)(ii) and 38(5))
33. Ms X says she no longer wants Child Y to attend the secondary school she named as her first choice. The Council’s delay issuing the amended EHC plan in combination with its requirement that Ms X apply for a school place through the admissions process means the Council has allocated Child Y a place at a school before identifying the provision needed to meet their SEN. This was fault.
34. As a result, Ms X experiences ongoing uncertainty that the school allocated for Child Y can meet their SEN. This is an injustice to Ms X. There is a statutory right to appeal the school or type of school named in Section I to the Tribunal. The Council’s fault has delayed Ms X’s access to this right. This is an injustice to Ms X.
35. The Council should now issue an amended EHC plan and give Ms X the opportunity to request her preferred school be named in Section I.

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Agreed action

36. To remedy the injustice to Child Y and Ms X from the faults I have identified, the Council has agreed to:
• Apologise to Ms X in writing;
• Issue an amended EHC Plan leaving Section I blank and invite Ms X to request it name a particular school;
• Pay Ms X, for the benefit of Child Y, £1,000 being £200 a month for the delay issuing an amended plan;
• Pay Ms X £250 in recognition of her avoidable distress and uncertainty.
37. The Council should take this action within four weeks of my final decision.
38. Where we find fault causing injustice, we can recommend the Council make improvements to its service. In June 2022, following a complaint to the Ombudsman, the Council agreed to review its annual review process to ensure it sends decisions following review meetings within the required timescales in every case. Despite agreeing to this recommendation, the Council failed to achieve this in this case.
39. The Council should, therefore, take the following actions to improve its services:
• Identify and implement a system to ensure the Council keeps track of annual reviews and when the four-week timescale to decide whether to amend, maintain, or cease an Education, Health and Care plan starts and ends. The Council should ensure all decision letters following annual reviews are sent within this period.
• Review its practice of requiring children with EHC Plans to apply for school admissions through the standard admissions process and ensure this does not interfere with the right to request a particular school or type of school during the draft EHC plan process and the statutory right to appeal the content of Section I.
40. The Council should tell the Ombudsman about the action it has taken within four months of my final decision.

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Final decision

41. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman