Summary: There was fault by the Council in the way it handled two reviews of an Education, Health and Care plan for Ms X and her child. This caused unnecessary frustration, distress, time and trouble. The Council will apologise, make a financial payment and make service improvements. The complaint is upheld.

The complaint

1. Ms X complains about delay by the Council in completing an annual review following a meeting in June 2022 and delay in finalising an amended Education, Health and Care (EHC) plan.
2. Ms X says the Council refused to finalise the EHC plan until it completed an additional phase transfer review.
3. Ms X says fault by the Council meant:
• her son did not have an accurate and up to date plan than reflected his needs,
• this may have affected the provision his school provided, and
• she was put to additional time and trouble chasing the Council and frustration that the process took an excessive amount of time.

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The Ombudsman’s role and powers

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 an injustice, 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)

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How I considered this complaint

6. I have considered information provided by Ms X and the Council including:
• The EHC plan
• Complaint correspondence
• Documents held by the special educational needs (SEN) team, including its ‘Hub’ an online date management system.
7. I have spoken to Ms X by telephone.
8. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’).
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Relevant law and guidance

11. A child with SEN may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. 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. 
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
15. 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)
16. 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)
17. The Act and Regulations do not specify the time period to amend the plan, but in R(L,M and P) v Devon County Council [2022] the Judge found the Regulation which requires the Council to notify the parent of its decision within four weeks of the meeting and the Regulation which sets out the process for amending the plan must be read together. This means Councils must both notify the parent of a decision to amend, and what the proposed changes actually, are within four weeks of the annual review meeting.
18. Following comments from the child’s parent or the young person, if a council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
20. The Code (9.169) says the first review must be held within twelve months of the date the first EHC plan was issued, and then within twelve months of the previous review. The local authority’s decision after the review meeting must be notified within four weeks of the meeting and within twelve months of the previous review.
21. The Code (9.179) says an EHC plan must be reviewed and amended in sufficient time prior to a child moving between phases of education, to allow for planning and, where necessary, commissioning of support and provision at the new institution. The review must be completed, and any amended plan issued, by 15 February in the year of transfer between schools.

Key events

22. The following is a summary of key events. It does not include everything that happened.
23. The Council has issued final EHC plans for Ms X’s child in:
• March 2020
• September 2021
• May 2022
• February 2023.
24. In March 2022 Ms X’s child started at a special school, having previously been in mainstream education. The EHC plan was updated in May 2022 to reflect this change, however the contents of the plan were not changed to reflect the provision was now to be provided in a special school.
25. The new school held an annual review meeting in June 2022. The previous annual review meeting was in May 2021. The new school told Ms X as the EHC plan was still written for a mainstream education she should expect the plan to be substantially re-written.
26. Ms X says the Council should have decided whether to amend the plan within four weeks, and any final amended plan should have been issued by the end of August 2022.
27. Ms X’s complaint letter said the Council had agreed to amend the plan eight weeks after the review meeting in early August (four weeks late) and she received a draft amended plan in August. Ms X said the Council had simply crossed out key stage 2 and replaced it with key stage 3 and made no other changes to reflect up to date needs and provision. Ms X says she received another identical draft in September. Ms X says the Council accepted this was a mistake.
28. In Autumn 2022 the new school advised Ms X the Council had asked it to complete a phase transfer review by Christmas because her child was now in year six. The School asked the Council if it would finalise the EHC plan following the previous June 2022 review before it held the phase transfer review. This did not happen.
29. Ms X complained in January 2023 about delay and that the phase transfer review had now overridden the previous review, which had never been completed. Ms X referred to a previous complaint about delay in the annual review process in 2020/2021 when the Council promised changes would be made and staffing issues had been resolved. Ms X said the same problems were recurring.
30. The Council’s complaint response in February 2023 acknowledged it had failed to respond within the four week timescale after the June 2022 review and apologised. It did not offer any additional remedy for this fault. The Council said regarding the amendment of the EHC plan the team was ‘extremely busy during the Autumn term amending the EHCPs for all those students in Year 6 who are due to transfer to the next phase of their education; these amended EHCPs need to be finalised by 15 February 2023 in line with the SEND Code of Practice and this includes [Ms X’s child]’.
31. Ms X replied to the Council:
• Her child’s amended EHC plan should have been finalised in August 2022, before the Autumn busy period, and she did not consider this a reasonable explanation for the delay.
• The June 2022 review should have been finalised before they were asked in September to complete the next review by December.
• The response did not address the amendments were made incorrectly requiring repeated drafts.
• The Council had not acknowledged the impact on her and her child, including the time consuming and frustrating experience of having to constantly chase people up.
32. Ms X told me she has suffered ill-health due to stress and her son’s experience at his new school would have been smoother if the EHC plan had been promptly updated to reflect his needs and the new provision. Ms X says some provision at his new school, such as play therapy, took time to put in place which might not have happened if this had been included in the plan sooner.
33. The Council issued the final EHC plan in mid-February 2023.
34. Ms X says in March 2023 she received a confusing letter from the Council in relation to the phase transfer review. This states the Council received information in February following a review meeting in December. The Council said it incorporated this information into her child's EHC plan which it issued in mid-February. The Council said the next review was due by March 2024, however Ms X says the School has contacted her to say it has been asked to hold another review meeting by the end of May 2023. Ms X says she logged onto the Council’s SEN ‘hub’ which states the next review is due to be completed by August 2023.

Analysis

Fault

35. Annual reviews must be completed within twelve months of the first EHC plan or the previous review. The review process includes not just the review meeting but the subsequent decision (to cease, amend or not amend).
36. While Councils can delegate the holding of the review meeting to schools, they remain responsible for ensuring reviews, and actions from review meetings, are completed within the legal timescales.
37. The 2022 review meeting appears to have been held late as it is thirteen months after the previous review meeting. It also does not seem to follow the anniversary of the original EHC plan.
38. There was delay by the Council in completing the review following the meeting in June 2022. The Council did not issue a final plan until mid-February 2023 when it should have done so by August 2022. This was excessive delay and was fault.
39. The Council has acknowledged it delayed by four weeks in issuing a decision to amend but has not acknowledged it also failed to issue the proposed amendments within four weeks as per R(L,M and P) v Devon County Council [2022].
40. The Council issued a draft plan in August but did not include the amendments recommended at the review meeting, requiring further drafts and creating additional work for Ms X. This was fault.
41. The Council asked the School to hold a further phase transfer review meeting by December 2022. The Council then merged the two reviews. This has caused confusion and means the Council has not followed the correct process following the December 2022 review meeting.
42. The Council issued a decision to amend following the December 2022 review meeting in late March 2023. This is fault, the Council should have issued this decision within four weeks of the meeting in December. This is a repeat of the same fault. The Council said in its letter of March 2023 that its decision was to amend the plan and it had included the amendments in the Plan issued in mid-February. This is not the correct process. The Council should have issued the decision to amend together with any proposed amendments in a draft and given Ms X an opportunity to comment before issuing a final plan in response to the December 2022 review meeting.
43. I find the Council’s decision after the June 2022 meeting was to amend, and this was completed by mid-February 2023 when it issued a final plan concluding that review. Its March 2023 decision after the December meeting was not to amend, because the plan had already been recently amended and issued in February 2023. The March 2023 letter should have been a decision not to amend the plan further.
44. I also find there was no need for the Council to have required a phase transfer review in December because while Ms X’s child is in year six, they are not changing schools. They moved to a new school in year five, which as a special school is a through school that does not require pupils to leave at the end of year six and transfer to a new institution. I find the Council has caused unnecessary confusion and delay. Given the Council reported its staff were extremely busy in Autumn 2022 amending EHC plans for phase transfers, the Council should have systems in place to ensure it does not hold reviews where none is needed.
45. The Council has now asked the School to hold another review by the end of May 2023. Another review does not appear to be required because, by holding an additional review between December 2022 and February 2023, the next review meeting is not due until the end of 2023. Further, the Council’s ‘hub’ appears to have a different date for the next review as due by the end of August 2023. This is again causing unnecessary confusion and suggests the Council has not learnt from previous complaints.

Injustice

46. I find the fault by the Council has caused unnecessary frustration and time and trouble to Ms X.
47. I find the Council’s delay in updating the EHC plan to reflect current needs and the provision in the special school may have led to some provision not being provided as soon as it might have. Once provision is included in a final EHC plan, there is a legal duty on the Council to ensure the provision is secured. Ms X and her child lost this legal entitlement and the delay also meant they were without appeal rights between the review meeting in June 2022 and February 2023; this is an injustice.

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Agreed action

Within four weeks of my final decision

48. The Council will apologise to Ms X for the additional fault identified in this decision.
49. The Council will pay Ms X £500 for the time, trouble, frustration and distress caused by the fault. This includes the uncertainty about whether provision was delayed due to the lack of an updated EHC plan reflecting the new setting.
50. The Council will pay Ms X’s child £250 to acknowledge they did not have an EHC plan that reflected their up-to-date needs and the uncertainty whether this has affected the provision available to them.
51. The Council will reconsider whether a further review meeting is required so soon after the last review was completed. It should provide a written response in writing to Ms X and provide a copy to the Ombudsman explaining its position.
52. The Council will review Ms X’s file, it’s hub system and diary alerts to ensure they do not trigger further unnecessary reviews and are consistent with each other.

Within eight weeks of my final decision

53. The Council will review its processes and training to ensure:
• Staff are aware of the timeframes to complete annual reviews including when proposed amendments to plans need to be provided.
• Draft plans reflect views and proposed amendments submitted.
• Annual reviews are completed promptly and within statutory timescales.
• Systems are in place to prevent drift and delay.
• Reviews are not automatically triggered unnecessarily, for example when a child is the right age for a phase transfer but is attending a school which covers a different age range, and no transfer is required.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation. There was fault by the Council in the way it handled two reviews of an EHC plan for Ms X and her child. This caused unnecessary frustration, distress, time and trouble. I am satisfied the agreed

56. actions set out above are a satisfactory resolution to the complaint. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman