Summary: The Council avoidably delayed by six months in finalising Mr X’s child, Z’s, Education Health and Care Plan (EHC Plan). This delayed Mr X’s right of appeal to the Special Educational Needs and Disabilities (SEND) Tribunal. The Council also delayed in putting tutoring provision in place for Z which led to Z missing one month of education. The Council has agreed to pay Mr X £500 in recognition of the frustration and uncertainty caused by these faults. We find the Council not at fault in how it produced a draft, amended EHC Plan, nor for allocating several different key workers for Z as this was due to staff absence.

The complaint

1. Mr X complains the Council:
1. failed to carry out an annual review of his child, Z’s, Education, Health and Care (EHC) Plan between 2016 and 2021;
2. discriminated against them in 2018;
3. wrongly tried to stop Z’s tutoring provision;
4. delayed in issuing Z’s EHC Plan following their annual review in May 2021;
5. delayed in putting tutoring provision in place following the May annual review.
6. sent Mr X a proposed, amended EHC Plan in January 2022 which was the same as Z’s previous Plans; and
7. failed to appoint a key worker to their case from July 2021 to May 2022, which meant there was no one to oversee Z’s EHC Plan.
2. Mr X states that as a result, Z did not receive the provision in their EHC Plan which has caused Z and the family distress and anxiety.

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What I have and have not investigated

3. I have investigated Mr X’s complaints in paragraph 1d) to 1g).
4. I have not investigated his complaints in paragraph 1a), 1b) and 1c) about earlier actions and I explain why in paragraphs 5-10 below.

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The Ombudsman’s role and powers

5. 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)
6. The complaints in paragraph 1a) and 1b) happened more than 12 months ago. Mr X has provided no good reason for me to exercise my discretion to investigate them. Therefore, I have not investigated them.
7. 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.
8. Mr X said in complaint 1c) that the Council was wrong to say it would stop funding Z’s home tuition. The Council said it would cease the tuition unless Mr X could provide medical evidence to say why home tuition, rather than a school setting, was needed.
9. The Ombudsman does not have the power to decide whether the provision specified in an EHC Plan is suitable to meet the special educational needs of the child or young person. Only the SEND Tribunal can come to a decision on that. Therefore I cannot investigate this part of Mr X’s complaint.
10. However I have made findings in paragraphs 50-51 regarding the Council delaying in finalising Z’s EHC Plan and avoidably delaying Mr X’s right of appeal to the SEND Tribunal.
11. 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.
12. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
13. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
14. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
15. 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)
16. 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

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

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What I found

Law and statutory guidance

Special educational provision

21. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
22. 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Reviewing and amending EHC Plans

23. The following paragraphs set out the EHC Plan timescales that were in force during the period I am investigating.
24. An EHC Plan must be reviewed at least annually. Within four weeks of the annual review meeting, the council must issue the parent with a decision notice informing them of whether it intends to cease or amend the Plan or keep it the same. This should include any draft, amended EHC Plan. If the Plan needs amending, the council should start the process without delay. This includes asking the parents or young person for their comments.
25. Following comments from the parents or young person, the council must complete the process and issue a final amended Plan as quickly as possible and within eight weeks of the original amendment notice.
26. 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.
27. The Ombudsman does not have the power to decide whether the provision specified in an EHC Plan is suitable to meet the special educational needs of the child or young person. Only the SEND Tribunal can come to a decision on that.

What happened

28. Around two years ago, Z was diagnosed with Autistic Spectrum Disorder. They have had an EHC Plan in place for several years.
29. Medical evidence shows that Z also has a sleep disorder, experiences high levels of anxiety and has a history of self-harming behaviour which can be triggered by attending school.
30. For the reasons explained in paragraphs 5-10, this investigation focusses on events following on from Z’s May 2021 annual review meeting. I refer to certain earlier events as background.
31. The last EHC Plan in place before the May 2021 annual review meeting was Z’s EHC Plan from 5 August 2020. This Plan said Z would receive full-time or equivalent education at a school for children with social, emotional and mental health difficulties (SEMH school). Z had started at the SEMH school in September 2020.
32. In March 2021 Mr X asked instead for Z to be removed from the SEMH school as he felt Z’s needs would be better met through home education.
33. On 12 May 2021, the Council carried out an early annual review of Z’s EHC Plan due to changes requested by Mr X. The annual review meeting on this date was attended by the Council, the SEMH school and Mr X. During this meeting it was decided that Z would not remain at the SEMH school beyond the end of the school year in June 2021.
34. At the time this was decided, Mr X was paying privately for tuition for his child at home and the SEMH school was dropping off school work and regularly checking on Z’s welfare.
35. The Council’s elective home education team thought Z would struggle to have their needs met through home education and instead wanted to explore finding Z a specialist provision. Mr X said he would still prefer Z to be home educated due to the impact of school on their anxiety.
36. The elective home education team agreed that for now, the Council would fund tuition for Z for 5 hours per week. This would start from September 2021, as the school year was ending in June 2021 and it was already late May.
37. On 28 May 2021, the Council sent Mr X a letter setting out these proposed changes and said it would ‘make the agreed changes to the EHC Plan and a copy will be sent to you in due course’. No draft, amended EHC Plan was sent alongside this letter for Mr X to make comments on.
38. By 9 June 2021, the Council should have issued the amendment notice, including the draft, amended EHC Plan, and given the parent or young person 15 days to provide any comments. The Council did not do this.
39. The following month, the Council’s alternative provision panel that was considering Mr X’s request for home education and tutoring, met three times due to disagreements over how best to meet Z’s needs.
40. At the end of June 2021, the alternative provision panel decided Z would receive 7.5 hours of face to face tuition at home, starting from September 2021.
41. By 4 August 2021, the Council should have issued the final, amended EHC Plan. The Council did not do this.
42. The Council then did not apply to the tuition service for Z until 10 September 2021, after that year’s school term had already started. Due to this delay, Z did not start receiving the agreed tutoring until 4 October 2021.
43. Between October 2021 and January 2022 the Council and Mr X disagreed frequently over what provision would best meet Z’s needs. The alternative provision panel wanted to keep the tutoring provision under regular review and did not see it as a long term solution for Z.
44. At the beginning of December, the Council told Mr X that unless he sent in medical evidence demonstrating Z was unfit to attend school, Z’s tuition would end. Mr X sent the requested medical evidence. The tuition did not end at any point during this investigation period.
45. As there was no final, amended EHC Plan issued around this time, Mr X was unable to appeal to the SEND Tribunal to formally resolve this disagreement.
46. The Council issued the draft, amended EHC Plan on 21 January 2022, this was 7 months and 12 days late. Mr X made no comments on the draft.
47. The Council then issued the final, amended EHC Plan on 28 February 2022. This was 6 months and 24 days late. The EHC Plan said Z would receive an independent package of support and tuition for 7.5 hours per week.
48. Mr X complained to the Council about the delay issuing the final plan and the Council upheld his complaint and apologised. It agreed that it significantly delayed finalising Z’s EHC Plan following the May 2021 annual review. The Council said this was due to a lack of capacity to meet the demand for annual reviews within its SEND team.
49. Once Mr X received the final, amended EHC Plan, he appealed the Plan to the SEND Tribunal regarding Section B: Z’s Special Educational Needs, Section F: Z’s provision that is required to achieve the outcomes, and Section I: Z’s named education placement.

My findings

Complaint 1d) Delayed in issuing Z’s EHC Plan following his annual review in May 2021

50. Z’s final, amended EHC Plan should have been issued within 84 days of the May 2021 annual review meeting. Instead it took the Council 292 days. This was significant delay. The Council was at fault.
51. Mr X and the Council clearly disagreed regarding Z’s education provision during this time and the Council’s actions avoidably delayed Mr X’s right to have the disagreement considered by the SEND Tribunal.

Complaint 1e) Delayed in putting tutoring provision in place following the May 2021 annual review

52. The Council’s panel decided what alternative provision Z needed in June 2021. This gave the Council time to arrange that provision for the start of autumn term. Instead it took the Council until mid-September to begin arranging that home tuition. This avoidable delay caused Z to miss out on one month’s tuition at the start of term.
53. I have recommended a financial remedy in recognition of the missed education caused by this fault.

Complaint 1f) Sent Mr X a proposed, amended EHC Plan in January 2022 which was the same as Z’s previous Plan

54. I have reviewed the draft, amended EHC Plan issued on 28 January 2022 and while large parts of it are identical to the previous year’s final EHC Plan, several pieces of key information are changed including the named education placement in Section I and information regarding Z’s health provision.
55. The draft, amended EHC Plan was not identical to the previous year’s Plan, as Mr X said. The Council was not at fault.
56. In any case, Mr X appealed the content of the EHC Plan to the SEND Tribunal. The Tribunal can make decisions regarding the content of EHC Plans and whether more up to date information is required. The Ombudsman cannot. Therefore I cannot achieve anything more for Mr X by investigating this further.

Complaint 1g) Failed to appoint a key worker to their case from July 2021 to May 2022, which meant there was no one to oversee Z’s EHC Plan.

57. The Council took too long in finalising Z’s EHC Plan and the Council has accepted this service failure (fault) was due to a lack of capacity among staff.
58. However despite staff absence, the evidence shows that different Council officers within the SEND team were carrying out the role of keyworker in terms of overseeing the EHC Plan.
59. While delays clearly occurred, and disagreements during this time were not resolved through timely access to the proper avenue of the SEND Tribunal, there were keyworkers overseeing Z’s EHC Plan at all times. The Council was not at fault in this respect.
60. There is also no fault in the Council having different officers carrying out the EHC Plan work throughout Z’s case, as changes in staffing are inevitable and colleagues in council departments must routinely provide cover.

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Agreed action

61. Within one month of the date of the final decision, the Council has agreed to;
• apologise to Mr X and Z for the uncertainty and distress caused by the Council’s avoidable six month delay late in finalising Z’s EHC Plan, as well as the month of tutoring that Z missed in September 2021;
• pay Mr X £300 to be used for Z’s benefit to recognise the month of tutoring that Z avoidably missed in September 2021; and
• pay Mr X £200 to reflect the uncertainty and frustration caused to him over several months when the Council significantly delayed finalising Z’s EHC Plan, and delayed Mr X’s opportunity to resolve the disagreement over provision with the SEND Tribunal.
62. Within three months of the date of the final decision, the Council has agreed to demonstrate that it has reminded staff in its SEND department of;
• the statutory timeframes for issuing draft, amended EHC Plans;
• the statutory timeframes for issuing final, amended EHC Plans; and
• that unresolved disagreements over provision and EHC Plans are for the SEND Tribunal, and parents, carers and young people should not have their appeal rights delayed.

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Final decision

63. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay Mr X a financial remedy and carry out service improvements.

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Investigator's decision on behalf of the Ombudsman