Summary: Ms X complained the Council took too long to complete the annual review of her son’s Education, Health and Care Plan. We found fault by the Council. The Council agreed to provide Ms X with a written apology and a payment for the distress caused to her and to improve its service.

The complaint

1. Ms X complains the Council failed to carry out an annual review of her son’s (Y) Education, Health and Care Plan (EHCP) within the statutory time frame. She also complains the Council said it would carry out the annual review in June 2022 at a SEND tribunal hearing.
2. Ms X says the Council’s actions have caused distress and put her to avoidable time and trouble in following a complaint.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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)

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How I considered this complaint

6. I discussed the complaint with Ms X and I reviewed the information provided by her and the Council.
7. I set out my initial thoughts in a draft decision statement and I invited comments from Ms X and the Council.
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.

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What I found

9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
10. The first review must be held within in 12 months of the date when the first EHC Plan was issued, and then within 12 month of any previous review, and the local authorities’ decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC Plan or previous review). (SEN Code paragraph 9.196)

What happened

11. The Council issued Y with an EHCP on 27 September 2021.
12. Ms X’s concerns about the EHCP were considered as part of an appeal to the SEND tribunal.
13. During the tribunal the Council said it would carry out an annual review of Y’s EHCP in July 2022.
14. In May 2022 the tribunal upheld Ms X’s appeal.
15. In June 2022 Y’s final EHCP was issued.
16. After the appeal ended the Council said it would not carry out annual review of Y’s EHCP during the current academic year.
17. Ms X was unhappy with the Council’s decision and complained. She said if it did not carry out the annual review in July it would not meet the statutory time frame for the review. She also said it was the last opportunity for everyone who helps deliver Y’s EHCP to share information about him before his moved to his secondary school in September.
18. The Council replied saying it did not have to carry out an early review. It also said that an early review could result in changes to Y’s EHCP and this could put at risk his school place for September. It suggested a transition meeting with Y’s new school would help support his move there.
19. Ms X was unhappy with the Council’s response but it declined to escalate her complaint saying it would not alter its decision.
20. On 4 September Y started secondary school.
21. On 9 September Ms X learnt that Y’s new school would be carrying out the annual review of Y’s EHCP on 14 September and the review would last one hour.
22. Ms X worried an hour would not be long enough and contacted the Council.
23. On 14 September the annual review took place. The meeting lasted two hours although Ms X was not told this before the meeting began.
24. Ms X told me undertaking Y’s annual review within a fortnight of him starting his new school was stressful and put the relationship between her and the school under strain. This caused her distress.
25. The Council issued a final EHCP on 11 November 2022.

Findings

26. The Council must complete the annual review of an EHCP within 12 months of the previous review. This includes issuing the final EHCP. This does not change because an amended EHCP is issued following a Tribunal decision.
27. For the above reasons the Council needed to complete the annual review of Y’s EHCP including issuing the final EHCP by 27 September 2022. The Council did not issue the final EHCP until 11 November. A delay of six weeks. This is fault by the Council.
28. The Council could have avoided the identified delay by keeping its commitment to review Y’s EHCP in July 2022.
29. The Council said it did not do the annual review in July as it might have resulted in a change to Y’s plan and this could have put his placement at a specialist school at risk. I do not consider this is a good reason not to carry out a review. The purpose of the review is to get up to date information about a child or young person’s needs and to ensure they have the help they need to meet their needs and the right setting for this to happen.
30. The identified delay caused Ms X distress and anxiety as she was uncertain what, if any, changes would be made to her son’s EHCP and how this would impact her son’s provision in the pivotal first year of secondary school. I therefore consider Ms X was caused an injustice.

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Agreed action

31. Within one month of my final decision the Council has agreed to:

• Apologise to Ms X for the fault identified.
• Pay Ms X £150 in recognition of the distress and uncertainty caused to her. In coming to this figure, I have considered the Ombudsman’s guidance on remedies.

32. Within three months of my decision the Council has agreed to issue a memo to staff reminding them that EHCP annual reviews need to be completed within 12 months of the previous review and this includes issuing the final EHCP. It should also explain this applies even when an amended EHCP is issued following an appeal to the SEND Tribunal.
33. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman