Ombudsman sets out steps council must take regarding EHCP annual reviews amid "systemic problems"

The Local Government and Social Care Ombudsman (LGSCO) has found evidence of “repeated delays” by Somerset Council in telling parents the outcome of annual reviews for pupils with Education, Health and Care plans (EHCPs), and in issuing amended and finalised plans.

In a report the Ombudsman has set out steps the council must take to improve its annual review process, including letting parents and children know if it is not going to be able to meet the statutory timescales following an annual review.

The investigation was launched to consider a complaint that there were systemic faults in the council’s administration of annual reviews for pupils with EHCPs.

The Ombudsman’s report notes that where a council proposes to amend an EHCP, it must send the child’s parent or young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments.

It should do this within four weeks of the annual review meeting, said the watchdog.

The Ombudsman asked the council for statistics around the annual review process, which showed that between the academic year 2019/20 and 2021/22 the number of annual reviews it processed had risen by over 60% from just under 2,000 to over 3,000 a year.

In the academic year to August 2023, it anticipated a further increase of 40% in the number of annual reviews to more than 4,500.

The Ombudsman noted that it was “evident” from its casework and the information provided by the council that the local authority had experienced “systemic problems” in meeting Government expectations for processing annual reviews.

“In the period for which we had data, the council had not met the four-week target for processing annual reviews in seven out of ten cases. In those cases where it agreed to amend the EHC plan, it was only able to meet the 12-week target for issuing a final amended plan in around two out of ten cases”, said the Ombudsman.

While recognising the “exceptional pressures” the service had been operating under over recent years, the Ombudsman found the council at fault, citing evidence of “widespread service failure”.

The Ombudsman warned that the “greatest injustice” was likely to arise in those cases where the council agreed to amend an EHC plan, but then delayed in issuing the amendments and / or the final plan.

“The first injustice in these cases will be the greater uncertainty created about what the council considers it needs to provide to meet the child’s needs. Second, there is the risk a child will be going without the provision they need, as EHC plans are working documents that inform the service the child receives from teachers and other professionals”, said the Ombudsman.

The report added: “A further injustice will arise in cases where there remains dispute about the content of an EHC plan, even after the council has amended it. Because delays in issuing plans, lead to a consequent delay in a parent’s ability to appeal the plan to the SEND Tribunal.”

The report noted that the council had since recognised the problems it had experienced, and had allocated a higher budget to its review team and reviewed relevant procedures.

Outlining expectations for improvement, the LGSCO said:

• "We expect the Council to meet the annual review statutory timescales and in cases where it has not done so and receives a complaint it should prioritise to ensure it does so without further delay; it should ensure proper signposting of the complaint through the Council’s complaint procedure;
• We expect the Council to let parents and children / young people know if it is not going to be able to meet the statutory timescales following an annual review;
• We expect the Council to consider offering a symbolic payment if it receives a complaint from a parent about delay and this has resulted in a significant injustice to their child; this will be most apparent in cases where a child’s provision will have been impacted by a delay – for example, following amendment of an EHC plan or where a parent has gone on to successfully appeal the Council’s decision following an annual review."

Somerset Council has been approached for comment.