Summary: Miss B says the Council failed to ensure her daughter received education from 2022 onwards. The Council delayed issuing an education, health and care plan following a needs assessment and delayed issuing a revised plan following a review. That means Miss B’s daughter missed out on education for half a term. A payment to Miss B, reminder to officers and setting up a process to track annual review actions is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council failed to ensure her daughter received education from 2022 onwards.
2. Miss B says this has impacted on her own mental health and left her daughter without education.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. 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

9. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

11. A child with special educational needs may have an education, health and care plan (EHC plan). An EHC plan describes the child's special educational needs and the provision required to meet them.
12. The procedure for assessing a child's special educational needs and issuing an EHC plan is set out in regulations and Government guidance.
13. Statutory guidance 'Special educational needs and disability code of practice' (code of practice) sets out the process for carrying out EHC assessments and producing EHC plans.
14. The code of practice says the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks (subject to exemptions).
15. The code of practice says councils must review an EHC plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review. They may carry out a review earlier.
16. The council must write to the child's parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC plan as it is, amend it or end it. If the EHC plan needs to be amended the council should start the process of amending it without delay.
17. If the council decides to amend the EHC plan following the representations it must issue the final amended EHC plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
18. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of suitable education for children of compulsory age who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child's age, ability and aptitude, including any special needs. The provision may be part-time where the child's physical or mental health means full-time education would not be in their best interests.

What happened

19. The school attended by Miss B’s daughter in February 2022, which I will refer to as school A, asked the Council to carry out an EHC needs assessment. The Council agreed to that in March 2022 and told Miss B. As Miss B’s daughter was struggling to attend school A put in place a bespoke timetable. That was initially partly in school and partly outside school. It became entirely out of school in May 2022 following an exclusion.
20. The Council agreed to issue an EHC plan in June 2022. Miss B asked for a specialist setting. The Council issued a draft EHC plan on 5 September and began consulting special schools. School A put in place home tuition until the Council could identify a specialist school.
21. The Council issued a final EHC plan on 15 December. That named school B, a specialist school, in section I. The Council wrote to Miss B to tell her about its decision and asked her to contact school B to arrange a start date for her daughter.
22. In January 2023 school B told the Council it had arranged an admissions meeting for 26 January so Miss B’s daughter could begin at the school on 29 January.
23. In the meantime Miss B contacted school A to raise concerns about the travel distance to school B. Miss B also said she wanted her daughter to return to a mainstream school. Miss B stopped the home tuition school A had put into place as she did not believe it was appropriate for her daughter.
24. On 28 February 2023 school A held an early annual review where Miss B requested school C, which was a mainstream school. School A passed the review details onto the Council to action.
25. On 21 April the Council asked school B whether Miss B’s daughter was attending. Meanwhile school A repeatedly contacted the Council in May 2023 to find out what was happening with the annual review paperwork and a new placement for Miss B’s daughter.
26. The Council consulted school C on 5 May. School C responded to say it did not consider it was a suitable placement for Miss B’s daughter.
27. On 15 May school B told the Council Miss B’s daughter had refused to attend the school.
28. The Council wrote to school C on 7 July to direct it to admit Miss B’s daughter.
29. From the beginning of September 2023 the Council put in place alternative provision for Miss B’s daughter. That was intended as a temporary measure until Miss B’s daughter could attend school C. The Council issued a final EHC plan naming school C on 21 September. Miss B’s daughter continues to receive the alternative provision set up in September 2023.

Analysis

30. Miss B says the Council failed to put in place education provision for her daughter from February 2022 onwards. It is clear from the history of the Council’s involvement with Miss B’s daughter’s EHC plan there have been various issues. The evidence I have seen satisfies me school A requested an EHC needs assessment in February 2022. The Council should therefore have completed the process and issued an EHC plan within 20 weeks. The Council failed to meet that timescale as it did not issue an EHC plan until December 2022. That is fault.
31. The evidence I have seen satisfies me the Council also failed to meet the timescales set out in the code of practice for issuing the EHC plan following the early annual review in February 2023. The Council should have issued a final EHC plan within 12 weeks but did not issue the final EHC plan until September 2023. That is fault.
32. I have found no evidence to suggest Miss B’s daughter missed out on education between February 2022 and December 2022 though. That is because I am satisfied school A made provision for her out of school. I am therefore satisfied Miss B’s daughter did not miss out on education between February 2022 and December 2022. I recommended though the Council remind officers dealing with an EHC needs assessment of the need to comply with the timescales set out in the code of practice. The Council has agreed to my recommendation.
33. For the period from December 2022 I am satisfied the Council had issued a new EHC plan naming school B. I appreciate Miss B’s daughter never attended school B and there is evidence Miss B had concerns about whether the school was suitable. However, if Miss B did not believe the school was suitable she had a right of appeal. As Miss B had a right of appeal that means any lack of education from December 2022 is outside the Ombudsman’s jurisdiction. The evidence I have seen satisfies me although there were some issues about whether school B had placed Miss B’s daughter on its roll from December 2022 the school nevertheless accepted it had a responsibility to provide education to Miss B’s daughter and tried to arrange that. I am therefore satisfied the Council had put in place provision and if Miss B did not believe that provision was suitable she should have appealed.
34. The situation is complicated though by the fact an early annual review of the EHC plan took place in February 2023. The annual review decided a change of placement was needed. At that point Miss B had asked for a placement at school C, which is a mainstream school. I have seen no evidence the Council took any action on that review until May 2023 when it consulted school C. Delay dealing with the review is fault.
35. I am satisfied, on the balance of probability, if the Council had processed the review on time it would have issued an EHC plan naming school C in May 2023. I am therefore satisfied the Council should have put in place alternative provision pending Miss B’s daughter’s transition to school C in May 2023. So, I am satisfied failure to process the EHC plan review in February 2023 means Miss B’s daughter missed out on education between May 2023, when the final EHC plan should have been issued and the end of the school year in July 2023. That means Miss B’s daughter received no education for half a term due to fault by the Council. I consider a suitable remedy for that missing education would be for the Council to pay Miss B £1,000. I further recommended the Council pay Miss B an additional £300 to reflect the impact this had on her and her time and trouble in pursuing the complaint. That makes a total payment of £1,300. The Council has agreed to my recommendation.
36. I had initially recommended the Council put in place a procedure to ensure annual reviews are followed up on. The Council says though as part of a long-term business change programme it is addressing the issue of effectively tracking the timeliness of EHC plan reviews. I therefore recommend the Council provide the Ombudsman with evidence to show what action it is proposing to take.
37. From September 2023 I am satisfied the Council arranged for Miss B’s daughter to receive alternative provision pending her being ready to begin at school C. I am therefore satisfied Miss B’s daughter has not missed out on education from September 2023.

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Recommended action

38. Within one month of my decision the Council should:
• apologise to Miss B for the distress and upset she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £1,300;
• send a reminder to officers dealing with EHC needs assessments to remind them of the need to comply with the timescales in the code of practice;
• provide evidence to the Ombudsman of the work it is undertaking as part of the business change programme to track annual reviews of EHC plans to make sure the timescales set out in the code of practice are adhered to.

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Final decision

39. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman