The Ombudsman's final decision
Summary: Mr X complains the Council failed to attend his daughter’s annual review meetings, and complete the annual review process properly. We have found fault with the Council for delay, and for failing to send out a final amended Education, Health and Care Plan by the statutory deadline of 31 March. This caused uncertainty to Mr X and his family. The Council has agreed to take action to improve its service and provide a remedy to Mr X and his daughter.
The complaint
The complainant, who I will call Mr X, complains the Council failed to: attend his daughter’s (Miss Y’s) annual review meeting in Year 10; complete the annual review process properly; and carry out the annual review in the Autumn term of Year 11 with full monitoring by a SEND officer, as promised in the Council’s complaint response.
Mr X says he and his family are still unaware of what post-16 choices are available to Miss Y, resulting in uncertainty and anxiety.
Mr X would like the Council to accept responsibility and, moving forward, have a one to one meeting with him to address the issues.
Mr X is still awaiting a response to his Subject Access Request he sent to the Council in November 2021.
What I have investigated I have investigated the chronology of the annual reviews, along with the Council’s duties to secure provision set out in Miss Y’s Education, Health and Care Plan (EHCP).
The final section of this statement contains my reason for not investigating paragraph 4.
The Ombudsman’s role and powers
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) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about information requests, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
If we are satisfied with a council’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) 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.
How I considered this complaint
I considered Mr X’s complaint to us and complaint correspondence to and from the Council. I discussed the complaint with Mr X.
I considered documents provided by the Council in response to my enquiries, along with the relevant law and guidance.
What I found
Legal and administrative A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. Section F details the special educational needs provision which councils are under a duty to secure or arrange. Section G details health provision.
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. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
The Ombudsman cannot look at complaints about what is in the EHC plan, but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) Annual reviews Councils oversee delivery of EHCPs through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
Where a young person attends school, the following requirements apply: The child’s parents or young person, a representative of the school or other institution attended, a local authority SEN officer, a health service representative and a Council social care representative must be invited and given at least two weeks’ notice of the date of the meeting. Other individuals relevant to the review should also be invited, including youth offending teams and job coaches where relevant The school must seek advice and information about the child or young person prior to the meeting from all parties invited, and send any advice and information gathered to all those invited at least two weeks before the meeting The meeting must focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan, and on what changes might need to be made to the support that is provided to help them achieve those outcomes, or whether changes are needed to the outcomes themselves. Children, parents and young people should be supported to engage fully in the review meeting The school must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting Within four weeks of the review meeting, the Council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended If the plan needs to be amended, the Council should start the process of amendment without delay. Once it has issued an amendment notice, the council must issue a final amended plan within eight weeks.
For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHCP – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
Impact of COVID-19 On 20 March 2020 all schools closed due to COVID-19. On 23 March the government introduced measures requiring people to work from home except in very limited circumstances. On 25 March 2020 the Coronavirus Act was enacted. On 1 May 2020 the Government issued a notice under this Act which amended the SEND Regulations removing specific timescales for actions in relation to EHC plans and replacing them with a requirement to take actions as soon as ‘reasonably practicable’. This change ended on 25 September 2020.
What happened An EHCP for Miss Y was issued in November 2019. Section F of the plan includes continued liaison with Children and Adolescent Mental Health Services (CAMHS), an NHS service, regarding support for Miss Y to help her manage her emotions. At the time of the events complained about, Miss Y was in Years 10 and 11 and studying towards her GCSEs. Miss Y needed to know about her options for post-16 study.
The annual review should have been completed in November 2020 but was delayed until July 2021. The Council failed to attend this meeting.
Mr X complained to the Council after the meeting in July 2021.
The Council admitted failing to attend the Year 10 review was a missed opportunity and upheld Mr X’s complaint. The Council apologised to Mr X.
In a further response to Mr X’s complaint the Council said it would attend the Year 11 review and that a Special Educational Needs and Disability (SEND) officer would closely oversee this to ensure all relevant timescales were met.
The Year 11 review was supposed to take place in November 2021. It took place at the end of January 2022.
Mr X further complains they have had to wait far too long to get the therapeutic treatment specified in the EHCP for Miss Y.
Analysis The EHCP should have been reviewed by 18 November 2020, when Miss Y was in Year 10, and then annually. However, the Council did not review the EHCP until July 2021 and it did not send an officer to the meeting.
The Council say there was a delay with the Year 10 review due to the COVID-19 pandemic. The temporary relaxation of the review timescales applied from 1 May 2020 to 25 September 2020, when normal rules applied again. The Council has not provided any reason for the delay between November 2020 and July 2021, so this delay amounts to fault.
The Year 11 review was supposed to take place in the Autumn term of 2021 but did not take place until January 2022. Again, the Council has given no reason for the delay. This amounts to fault causing anxiety and uncertainty to Mr X and his family as they were still uncertain about Miss Y’s post-16 choices.
Mr X said that someone from SEND did attend the meeting but she did not seem up to date with the case. The annual review report also shows attendance by someone from the Council’s SEND department.
The Council said no one from the Council attended the meeting in January 2022. It is concerning that despite committing to send an officer to the meeting and despite evidence suggesting a SEND officer did attend, the Council has no record of them doing so.
Looking at the evidence provided, it is clear that Mr X was unhappy with the lack of engagement from CAMHS in the July 2021 review meeting.
This meeting should have taken place in November 2020. So Mr X missed an opportunity to raise concerns about the CAMHS provision earlier. On balance we consider the support from the CAMHS Psychiatrist may have been available sooner if the Council had carried out its duty to review the plan, and to ensure there was liaison with CAMHS.
Following the July 2021 meeting, it was agreed that the EHCP needed to be amended, but the Council failed to issue an amended EHCP. This amounts to fault. However as there was no material change proposed in the provision of the EHCP there is no injustice to Mr X or Miss Y.
The post-16 EHCP has a statutory deadline to be completed by 31 March. This has not happened following the January 2022 review meeting. This amounts to fault by the Council.
As a result Mr X and Miss Y have still not had confirmation of Miss Y’s post-16 options. They have suffered an injustice and I recommend remedies for these below.
Recommended/ agreed action Within two weeks of the final decision, the Council should issue the final amended EHCP for Miss Y.
Within one month of the final decision the Council should: Write a personalised apology to Mr X and Miss Y for failure to issue a final EHCP by the statutory deadline; Pay £250 to the family for the delay in the review meetings and uncertainty suffered by them as a result; Pay £250 to the family for the uncertainty caused by the Council’s failure to issue the final amended EHCP by 31 March setting out Miss Y’s post-16 provision.
Within six weeks of the final decision, the Council should review all other young people with EHCPs who are due to transition to post-16 education in September 2022, to ensure they have a final amended EHCP which sets out their provision.
The Council to provide us with evidence that it has done so.
Final decision
I find fault with the Council for the delay in the Year 10 and 11 annual review meetings, and for failing to send out a final amended EHCP by 31 March. This fault has caused Mr X injustice and I have made recommendations to remedy that injustice, and to ensure the same has not happened to other people.
Parts of the complaint that I did not investigate I have not investigated Mr X’s complaint about a delay in the Council responding to his Subject Access Request. As set out in paragraph 8, the Information Commissioner’s Office is better placed to investigate this.
Investigator's decision on behalf of the Ombudsman