Summary: The Council was at fault when it produced Mr X’s son’s Education, Health and Care Plan (EHC Plan) seven months late. This caused uncertainty to Mr X and his son as it was unclear what education his son would receive and Mr X lost his right to appeal a key period of provision to the special educational needs and disabilities (SEND) Tribunal. The Council has agreed to pay Mr X £1,600 in recognition of the avoidable injustice caused and carry out several service improvements.

The complaint

1. Mr X complained the Council:
1. failed to produce Z’s Education, Health and Care Plan (EHC Plan) in time;
2. failed to provide a suitable education for his son, Z;
3. failed to provide funding it had agreed for an alternative education package; and
4. failed to provide suitable transport for Z to get to his alternative provision.
2. Mr X said this caused him and his son uncertainty and caused Mr X distress and time and trouble.

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What I have and have not investigated

3. I have investigated complaints 1a, b and c.
4. I have not investigated complaint 1d, that the Council failed to provide suitable transport for Z to get to his alternative provision.
5. Mr X complained that the Council should have provided free school transport for his son between his home and Placement B. The Council said the school, rather than the Council, was responsible for providing transport to Placement B because the school had commissioned the placement.
6. We make findings of fault by using our analysis about the actions of councils in the context of a common-sense understanding of relevant law, policy and guidance. Where the application of law in a particular context is unclear, the courts are usually better placed to reach definitive findings. Only the courts can make findings of lawfulness.
7. The council has explained how it considers its approach to be lawful in this case. There is no clear caselaw. Therefore, this matter can only be conclusively determined by the courts, rather than by the Ombudsman. For this reason, I have not investigated or come to a finding on this section of the complaint.

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The Ombudsman’s role and powers

8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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)
9. We can decide not to continue with part of an investigation if we decide there is another body better placed to consider it. (Local Government Act 1974, section 24A(6))
10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
11. In this case I have investigated events between August 2020 and August 2021 but not between March 2020 and October 2020, which was included in Mr X’s initial complaint to the Council. This is because Mr X could have complained earlier to the Council and then us about these events.
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
13. 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.
14. 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)
15. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

16. I considered the information provided by Mr X and the Council.
17. I considered the relevant law and guidance as set out below.
18. I considered our Guidance on Remedies.
19. I considered comments made by Mr X and the Council on previous draft decisions before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

20. A young person with special educational needs may have an Education, Health and Care (EHC Plan). This sets out their needs and what arrangements should be made to meet them.
21. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available.

Annual reviews of EHC Plans

22. Councils must review EHC Plans regularly, usually at least every 12 months, or when there is a significant change in the child’s needs, such as a breakdown in education placement.
23. 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 it. At this point it must notify the child’s parent or young person and the educational setting.
24. The council should then issue the final, amended EHC Plan within eight weeks of the amendment notice. In a final, amended EHC Plan, Section I must state the name and type of school to be attended by the child or young person. However, these details must not be included in the draft EHC Plan, as the drafting stage is when parents can tell the council what school they want the child to go to.
25. 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. This right of appeal starts when the final amended Plan is issued. (Special Educational Needs and Disability Regulations 2014 and the SEND Code of Practice 2015)

Alternative provision

26. Each council will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
28. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Education Act, Section 19 and Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

29. Mr X’s son, Z, has a diagnosis of Autism Spectrum Disorder (ASD) and an EHC Plan. For several years, he attended a mainstream school with additional support for his special educational needs.
30. One of the outcomes in Z’s 2019 EHC Plan was to improve his social skills and build relationships with his peers and adults. The support for this included providing opportunities to develop his social skills and emotional development through his friendship group and by working in small groups with his peers and other less familiar adults.
31. In October 2020, the school said it was struggling to meet Z’s mental health needs. An annual review meeting was held where Mr X and the Council discussed alternative provisions that may be suitable for Z on a part-time basis. Mr X said that in addition to the various alternative provisions discussed, it was agreed Z would also access an additional work-based placement (Placement C).
32. The Council produced a draft amended EHC Plan following the annual review meeting in October 2020 and sent it to Mr X for his comments. The outcome about Z’s need to develop his social and emotional skills remained in line with his 2019 Plan. The Council produced several drafts of this EHC Plan.
33. In November 2020, Z started attending one of the alternative provisions commissioned by the school (Placement B). This consisted of six hours a week of 1:1 tutoring. Z attended Placement B until April 2021.
34. From April 2021, Z became too unwell to continue attending Placement B. The school arranged for him to receive between two and three hours of medical tuition per week.
35. As well as what was arranged by the school, the Council commissioned a second, temporary work-based placement (Placement C) for Z to attend once a week alongside his other provision. This started in the summer term in 2021.
36. At the end of June 2021, the Council said it was withdrawing funding for Placement C. Mr X did not want the placement to end so he complained to the Council about this and the other matters outlined in paragraph 1 of this decision statement.
37. The Council responded. It said it differed in its understanding of what provision had been agreed and which department of the Council would fund it. However, it accepted there had been a misunderstanding and agreed to fund the additional work-based alternative provision for a further nine sessions.
38. There was no final, amended EHC Plan in place during this period setting out what education and SEN provision Z should receive, as the draft, amended EHC Plan was not finalised until August 2021.
39. In August 2021, the Council issued Z’s final amended EHC Plan. By this stage the Plan named a different school for him to attend from the next school year.
40. Mr X remained unhappy and complained to the Ombudsman.

My findings

Complaints 1a) Issuing Z’s final amended EHC Plan and 1c) funding of Placement C

41. Following the October 2020 annual review meeting, the Council should have issued Mr X with a decision notice within four weeks, informing him it was proposing to amend Z’s EHC Plan. It should then have issued Z’s final amended EHC Plan within eight weeks of the amendment notice.
42. The Council did not issue Z's final amended EHC Plan until August 2021. This was a significant delay of seven months and is fault which caused a period of avoidable uncertainty to Mr X and Z.
43. The Council said the reason for this is it produced several draft, amended versions of the EHC Plan. However, seeking agreement on the EHC Plan in this way is not in line with the guidance and any disagreements could have been resolved through the SEND Tribunal.
44. Because the Council failed to issue Z’s final amended EHC Plan in a timely manner, Mr X lost his opportunity to appeal to the SEND Tribunal regarding the provision Z received between November 2020 and August 2021.
45. Mr X expressed throughout the process he was unhappy with the amount of provision for Z. Therefore, it is more likely than not he would have appealed to the SEND tribunal. The loss of his appeal rights therefore caused him significant injustice.
46. In addition to this, the Council’s failure to issue a final amended EHC Plan within the statutory timescales left Z in a vulnerable position because no legally binding written document of what was agreed at the annual review meeting existed. The impact of this was made apparent when issues over Placement C arose. Because there was no record of this in any EHC Plan, its continuation was put at risk.
47. However, the Council resolved the matter and Z continued to receive this provision, so he did not experience a significant injustice. It did however, put Mr X to time and trouble in resolving the matter.

Complaint 1b) Provision of education and support in Z’s EHC Plan

48. Mr X was unhappy with the provision in Z’s EHC Plan, and the amount of education Z received from November 2020 to July 2021.
49. The Ombudsman does not have the power to state what provision should be specified in an EHC Plan or whether that provision is suitable. Only the Council or SEND Tribunal can do so. Paragraphs 44 and 45 above address this matter.
50. Because the Council failed to complete the annual review process, Z was without an up-to-date Plan during the period this complaint covers. This meant Z’s final amended EHC Plan from 2019 remained in force during this period.
51. This specified, amongst other provision, that Z needed social interaction to address some of his special educational needs. This outcome remained in Z’s amended EHC Plan dated October 2020 and in his final amended EHC Plan dated August 2021.
52. Between November 2020 to around April 2021 when the summer term began, Z only received 1:1 tutoring. As a result, the Council failed to ensure Z received the provision relating to Z’s social needs. This is fault which led to injustice for Z and Mr X, as they cannot know whether Z’s educational outcomes would have been improved, had the social needs elements of his EHC Plan been met.
53. From around May 2021, Z began to attend Placement C. This gave him opportunities to engage with other people. As a result, some of his social needs provision was met from this date.
54. Mr X said the education hours Z received from February 2021 were insufficient and his son wanted to do more. However, two months later in April 2021, Z became unable to cope with Placement B due to mental health issues. At this point the provision stopped and a medical tuition package of reduced hours was put in place.
55. As Z was unable to manage the six hours per week due to his mental health, on the balance of probabilities it is unlikely he would have managed more hours at that time, as Mr X requested. There was no fault in the Council’s actions.

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Agreed actions

56. Within one month of the date of our final decision, the Council has agreed to:
• apologise to Mr X for the significant delay in finalising his son’s EHC Plan and the uncertainty and loss of appeal rights this caused;
• pay Mr X £1,400, in recognition of the Council’s failure to ensure all of Z’s special education provision relating to his social needs was secured for the period November 2020 to May 2021, this can be used for Z’s benefit; and
• pay Mr X £200 in recognition of the avoidable uncertainty and time and trouble he was caused by the faults in this case.
57. Within three months of the date of our final decision, the Council has agreed to provide evidence that it has reminded relevant staff of:
• the Council’s duty to finalise EHC Plans within the statutory timeframes following annual reviews; and
• the importance of disagreements over EHC Plans being resolved through the SEND Tribunal where agreement has not been reached within the statutory timescales, and ensuring that parents and young people are aware of their appeal rights to enable them to do so.
58. The Council should provide us with evidence it has complied with all of the above actions.

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Final decision

59. I have completed my investigation. I have found fault leading to injustice and have recommended an apology, a financial remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman