Summary: Ms X complained about how the Council dealt with her child, Y’s, Education, Health and Care Plan annual review. There were faults by the Council with its delays in dealing with Y’s annual review and with issuing her final Plan. The Council was also at fault for its delays in dealing with Ms X’s complaint. This caused injustice to Ms X. The Council will take action to remedy the injustice caused.

The complaint

1. Ms X complained about the Council’s:

• delays with dealing with her child’s, (Y) 2023 Education, Health and Care (EHC) Plan annual review
• failure to properly conduct Y’s 2023 EHC Plan annual review
• delays with issuing Y’s final EHC Plan
• failure to provide Y with suitable education from 9 November 2022 to July 2023
• poor communication and poor handling of Ms X’s complaints.

2. Ms X said the Council’s failings caused distress and affected both her and Y’s mental health. She said Y lost out on education, provision and support.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 Tribunal in this decision statement.
8. 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)
9. 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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What I have and have not investigated

10. I have investigated whether the Council met its statutory responsibilities in conducting Y’s 2023 Education, Health, and Care Plan early annual review, issuing her final Plan and its alleged failure to provide Y with educational support. This investigation covers the period, September 2022 to July 2023.
11. I have not exercised discretion to investigate matters from 2020 when Y stopped attending school. These are historical issues and I consider it reasonable for Ms X to have complained about these matters earlier, there is no good reason to investigate them now.
12. I have not investigated the actions of the school. School matters are not within our jurisdiction. Where I have mentioned school action it is to provide background to the context of the complaint.

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How I considered this complaint

13. I have discussed the complaint with Ms X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
14. I have sent Ms X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Legislation and Guidance

15. 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 Council is responsible for making sure that arrangements specified in the EHC Plan are put in place.
16. The EHC Plan is set out in sections which include the special educational provision needed by the child or the young person (section F) and the name and/or type of educational placement (section I). 

Reviewing the EHC Plan

17. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

18. The annual review process includes a review meeting, and the subsequent decision, which have appeal rights. After an annual review meeting, councils must decide to either keep the EHC Plan unchanged or amend the Plan or cease the Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
19. The SEN code of practice states that when a council issues a decision to amend notification to a parent/carer after an EHC Plan annual review meeting (should be within 4 weeks), it must also send the proposed amendments. The final Plan must then be issued within 8 weeks. So, the timescale from the annual review meeting to the final EHC Plan should take no longer than 12 weeks. Case law: R (L, M, and P) v Devon County Council [2022].
20. The Ombudsman expects councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
21. Parents do not have a right of appeal about the content of a Plan until a final EHC Plan is made. When sending the final amended EHC Plan, the council must notify the child’s parent or the young person of their right to appeal to the tribunal and the time limit for doing so.

Provision

22. Education otherwise than at school (EOTAS) is educational provision that meets the needs of children/young people who, for whatever reason, are unable to attend a mainstream or special school.
23. Parents have a right to educate their children at home, known as Elective Home Education (EHE). In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
24. Councils do not have to secure provision where a parent of a child with an EHC Plan makes their own arrangements via EHE or in an independent school but must satisfy themselves the arrangements made are suitable.

Council’s Complaint Procedure

25. The Council’s complaint procedure states it should issue its responses to service users’ complaints within 20 working days. This timeline applies to both its stages 1 and 2 responses.

Key events

Background

26. Ms X’s child, Y, has multiple and complex health conditions. Y has an EHC Plan.
27. Y stopped attending the school named in their EHC Plan in 2020 due to concerns and the impact COVID-19 pandemic could have on her health.
28. In August 2022, Ms X raised concerns with one of Y’s medical professionals about how Y felt isolated because of her extended absence from school. Y’s medical professional confirmed there was no reason Y could not return to school.
29. The medical professional asked Y’s school to consider some adjustments for Y’s return to school. The school said it would not make the adjustments and provided its reasoning. It confirmed it could meet Y’s needs and agreed to create a phased return plan for Y.
30. Ms X decided not to return Y to school until the school put the suggested adjustments in place for Y’s safety.
31. Y continued to be absent from school, but she remained on the school roll.

What happened

32. This chronology includes key events in this case and does not cover everything that happened.
33. In mid-September 2022, Ms X asked the Council to hold an early annual review meeting of Y’s EHC Plan. This was to assess Y’s needs and develop a phased return to school plan for her.
34. In October 2022, Y’s school confirmed it could not meet Y’s needs through online and home tutoring alone and that she needed to attend school.
35. In late November 2022, the Council decided an early annual review of Y’s EHC Plan was required to assess if Y’s school could still meet her needs.
36. The Council received conflicting advice from Y’s medical professionals. Some advised Y could return to school. But one professional, based on Ms X’s request, advised it was not in Y’s best interest to return to school if adjustments were not put in place for her safe return.
37. On 30 January 2023, Y’s EHC Plan annual review meeting was conducted. The record of that meeting showed:

• Ms X requested an education otherwise than at school (EOTAS) package for Y
• the Council said it would not consider EOTAS for Y. It said this was because a majority of Y’s medical professionals advised she could return to school and confirmed Y’s school could meet her needs
• Ms X provided the Council with contact details for two professionals who had been involved with Y since her birth and were aware of her complex medical needs. She asked the Council to contact and seek medical opinions from the named professionals
• Y’s school confirmed it stopped providing Y with schoolwork on 9 November 2022. It said this was because it was unable to complete proper assessments for Y since she stopped attending school in 2020. So, it was difficult to set and provide Y with appropriate levels of work other than work offered through other professionals
• Y’s school would continue to send work to Y.

38. The Council contacted the two named medical professionals Ms X requested. It asked the professionals to confirm if Y could return to school and whether any reasonable adjustments were required to ensure Y’s safe return to school.
39. In February 2023, the Council received further advice and confirmation from the medical professionals that there was no good reason for Y not to attend school. Based on the recent medical confirmation, the Council maintained it would not consider Ms X’s request for EOTAS and confirmed Y’s school could meet her needs.
40. Ms X informed the Council she would like to homeschool Y and she asked it to remove Y from her school’s roll.
41. In March 2023, Ms X started to provide Y with an elective home education (EHE).
42. On 21 July 2023, the Council issued Y’s final EHC Plan setting out that she would be EHE in section I of her Plan.

Complaint Handling

43. In November 2022, Ms X made a complaint to the Council. She complained:

• the school refused to put in place the adjustments suggested by Y’s medical professional to ensure her safe return to school following the COVID-19 pandemic
• the Council delayed dealing with Y’s EHC Plan early annual review meeting which she requested in September 2022
• about how Y’s school decided to stop providing Y with educational support on 9 November 2022 without any professional input.

44. In February 2023, the Council issued its stage 1 response to Ms X’s complaint. She remained dissatisfied with its response and asked it to escalate her complaint to stage 2 in March 2023. The Council issued its final response letter in May 2023.
45. In the Council’s responses, it acknowledged Y’s school stopped providing Y with schoolwork on 9 November 2022. The Council said the delay in the annual review was caused by it needing to seek additional medical advice. It also said it had asked the school to continue to send work home for Y.

Analysis

EHC Plan Annual Review

46. Ms X raised concerns the provision was not in place for Y and requested an early annual review of Y’s EHC Plan in September 2022. There was a four-month period before the review meeting was held on 30 January 2023. This was a significant delay. I find fault by the Council for its delay and lack of response to Ms X’s request. This caused Ms X distress, frustration, and uncertainty. It also meant there was a delay in deciding whether Y’s needs should have been assessed in view of her plan to return to school.
47. Statutory guidance states councils must issue the final EHC Plan no longer than 12 weeks from the annual review meeting. In this case, Y’s early annual review meeting was held on 30 January 2023 and the Council issued Y’s final EHC Plan on 21 July 2023. This was a total of approximately 24 weeks. This was a delay of 12 weeks and was fault.
48. Although I acknowledge the difficulties faced by the Council to establish whether Y could attend school based on medical opinion, there was a significant delay in finalising Y’s Plan. I find the Council should have issued Y’s final EHC Plan within the statutory timescales as it had all of the relevant information in February 2023. This would have engaged Ms X’s right of appeal to the Tribunal earlier than July 2023 if she had wished to challenge the contents of Y’s EHC Plan.

Council’s alleged failure to provide suitable education

From November 2022 to March 2023

49. Y’s school was the named setting in Y’s EHC Plan during this period.
50. When Y was absent from school, the Council asked the school to continue to send work home. The Council then considered and was satisfied that Y’s school was available and accessible to her. The Council maintained Y’s school was suitable and it could meet Y’s needs if she returned to school. This was not fault. Evidence shows Ms X decided not to return Y to school.
51. I acknowledge Ms X was concerned about Y’s safe return to school due to her multiple health conditions. But evidence shows medical professionals advised Y could return to school. Therefore, the Council was not at fault.

From March 2023 to July 2023

52. As regard EHE, councils must satisfy themselves the arrangements made by parents who choose to homeschool a child or young person are suitable. But councils do not have to secure the provision, this is the responsibility of the parents.
53. Ms X requested and started EHE with Y in March 2023 and EHE was also stated in Y’s final EHC Plan in July 2023. This meant Ms X took over the responsibility to make EHE arrangements and secure provision for Y from March 2023 when she started homeschooling Y. Therefore, the Council had discharged its duty to provide Y with educational support from March 2023 and this was not fault.

Council’s Complaints Handling

54. It took the Council two months to issue its stage 1 response from when Ms X made her complaint in November 2022. Again, it took the Council another two months to issue its stage 2 response after Ms X asked for her complaint to be escalated to stage 2 in March 2023. These were faults and not in line with the Council’s complaints procedure. This caused Ms X distress and frustration.

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Agreed action

55. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Ms X to acknowledge the injustice caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• pay Ms X a symbolic amount of £500 to recognise the frustration, distress and uncertainty caused to her by the Council’s delay in holding an annual review meeting and in issuing an amended final EHC Plan and its poor complaint handling
• remind relevant staff to complete annual reviews of EHC Plans in accordance with statutory timescales set out in the law, Regulations and Code
• by training or otherwise remind staff of the importance of adhering to the Council’s complaint procedure.

56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I find evidence of some fault leading to injustice. The Council has agreed to take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman