Summary: Mrs X complained the Council failed to secure the special educational provision in her child, W’s Education, Health and Care Plan, when they stopped attending school. The Council was at fault. It was also at fault for delay in holding a review of W’s Plan and amending it after the review. This meant W missed out on provision they should have had, and Mrs X experienced avoidable upset, frustration and stress. To remedy their injustice, the Council will apologise to Mrs X and pay her £6,650. The Council will also issue a staff reminder, identify why it failed to arrange tutoring for W despite saying it would and tell the Ombudsman of the steps it will take to prevent that failing happening again in future.

The complaint

1. Mrs X complained the Council did not secure the special educational provision in her child, W’s, Education, Health and Care (EHC) Plan, after W stopped attending school in November 2022.
2. Mrs X also complained about how the Council held W’s annual review meeting in February 2023 and that it took too long to issue an amended Plan. Mrs X said the Council also delayed arranging W’s subsequent annual review. Finally, Mrs X complained the Council took too long to respond to her complaint.
3. Mrs X said this impacted on W’s wellbeing and caused her significant upset and stress.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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

8. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
9. Mrs X and the Council 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

Relevant law and guidance

Education, Health and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
11. The EHC Plan is set out in sections which include:
• section F; the special educational provision needed by the child or the young person; and
• section I: the school or type of school the child or young person will attend.

Special educational provision

12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

EHC Plan reviews

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the council. Following the meeting, the school or college sends the review paperwork to the council. The second stage of the annual review is the council’s decision notice. Within four weeks of the meeting, the council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice (an amendment notice) providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). It must do so ‘without delay’.
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the existing EHC Plan and amendment notice to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

Appeals to the SEND Tribunal

17. 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.
18. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN in their final EHC Plan (section B);
• the special educational provision in section F of the Plan;
• the school or placement named in the Plan or that no school or other placement is specified (section I); and
• any amendment to these elements of an EHC Plan.
19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Complaints

20. The Council operates a two stage complaints procedure. Both responses should be sent within 20 working days.

What happened

21. This section sets out the key events in this case and is not intended to be a detailed chronology.
22. Mrs X’s child, W, has learning difficulties causing challenges with communication, social interactions, understanding, motor skills and fatigue. In September 2022, they attended a specialist primary school (school A) in year six. W’s EHC Plan included the following provision.
• access to learning and development opportunities tailored to their needs;
• opportunities to gain and practice new skills;
• use of strategies specifically designed to help their literacy and numeracy;
• support communicating and learning social skills;
• 31 hours and 40 minutes of support from a teaching assistant per week, to help W while in the classroom, during lunch and in free time;
• an Occupational Therapy programme and sessions with a dedicated member of staff to help W develop their motor skills; and
• support to learn personal care skills.
23. In November 2022, after a period of declining attendance, W stopped going to school A.
24. School A decided they needed advice from an educational psychologist about W’s needs ready for an emergency annual review. The advice included that:
• W was very reluctant to engage with schooling and play therapy would be a good way to understand W’s views and help W understand their situation;
• W should have play therapy weekly for at least twelve weeks; and
• W needed a play led and child led approach to education, delivered by school staff in conjunction with Mrs X in a setting away from school and home.
25. The Council became aware of W’s absence when it attended an annual review held by the school on behalf of the Council in February 2023. The meeting heard:
• Mrs X felt W’s EHC Plan no longer met their needs and hoped that with amendments, W could return to school A;
• health professionals involved with W agreed play therapy could help W return to school if it was provided at home initially and then a member of school staff attended the home sessions at the end of the course. The school said this was not possible; and
• The school said it was “difficult for school to take any further actions”;
26. The Council arranged for W to receive one hour of play therapy at home per week for fourteen weeks, up to July 2023.
27. The Council issued its decision to amend W’s EHC Plan in late-April 2023. It issued a draft plan in late June 2023.
28. In late August, Mrs X complained to the Council. She said she was unhappy the Council had not arranged alternative educational provision for W since they had been out of school and that they were also not receiving the provision in their EHC Plan.
29. The Council consulted with school A around September 2023 which said it could not meet W’s needs a few weeks later. The Council then said it would consult with other schools, but Mrs X refused to allow it because she felt the draft EHC Plan was inadequate.
30. Mrs X says the Council told her to either appeal the plan once it was finalised or ask for an emergency annual review. Mrs X says she could not cope with either of those options so in late October, she de-registered W from school A and began home educating them.
31. The Council issued W’s final EHC Plan in early November. Section I recorded Mrs X had chosen to electively home educate W. The special educational provision remained largely unchanged.
32. Mrs X appealed sections B and F of W’s EHC Plan in December 2023.
33. The Council responded to Mrs X’s complaint at stage one in mid-December.
34. Mrs X requested a stage two complaint response a few days later.
35. In January 2024, Mrs X told the Council she wanted to stop home educating W. Because the Council had named elective home education in W’s November 2023 EHC Plan, it told her to ask for an early annual review or to expand her appeal to the SEND Tribunal to encompass a change in educational setting.
36. Following interim instructions from the SEND Tribunal, the Council issued a new EHC Plan in March, which named a specialist secondary school for W to attend from September 2024. This meant Mrs X was then able to add an appeal against the setting named in the Plan in her existing appeal. The special educational provision remained unchanged.
37. The Council issued its stage two response to Mrs X’s complaint a few days later. It noted the Council was trying to identify a tutor now that Mrs X had stopped electively home educating W.
38. The Council did not arrange any tuition or other provision for W for the rest of the school year. The SEND Tribunal upheld Mrs X’s appeal at the end of the school year.

Previous investigations

39. Recent Ombudsman investigations have found fault with the Council for delays in EHC Plan annual reviews and for failing to secure all the special educational provision in a child or young person’s EHC Plan. As a result of those investigations, the Council agreed to remind staff of the statutory timescales for completing annual reviews and issuing final EHC Plans.

Findings

Special educational provision

40. The Council owes W the duty to secure the special educational provision in their EHC Plan. It initially did this by naming school A in W’s Plan. By February 2023, the Council heard W had stopped attending entirely and was not receiving any education. The Council began to review W’s EHC Plan, which was the appropriate action to take. However, while that process was ongoing, the Council took little action to ensure W received the special educational provision in their EHC Plan.
41. The annual review meeting minutes show school A felt there was little more it could do for W. The educational psychologist report was clear W was not ready to return to school and needed daily educational input away from it, alongside play therapy. The Council arranged play therapy for fourteen weeks, but neither it, nor school A, arranged any other provision for W. As a result, W received almost none of the special educational provision in their EHC Plan from February to October 2023, when Mrs X began home educating them. This was fault and caused Mrs X avoidable stress and upset.
42. Once Mrs X began home educating, the duty on the Council to secure the special educational provision in W’s EHC Plan ended. However, when Mrs X told the Council she could no longer home educate W in January 2024, it should have acted promptly to hold an emergency annual review to consider what placement to name in W’s EHC Plan. The Council told Mrs X she could have an annual review or ask the SEND Tribunal to include a challenge to section I in her ongoing appeal. That decision was not for Mrs X to have to make, the responsibility lay with the Council.
43. In any event, even though Mrs X chose to ask the Tribunal to include section I in her appeal, once the Council knew she was no longer home educating W, the duty to secure the special educational provision in their Plan applied again. It did not do this. W continued without any educational provision until the end of the school year. The Council failed in its duty to secure the provision in W’s November 2023 and March 2024 EHC Plans between January and July 2024. This was fault and caused Mrs X further upset and stress.

February 2023 annual review and EHC Plan amendment

44. When a council decides to amend a child or young person’s EHC Plan, it must do so within twelve weeks of the annual review meeting. For W, this would have been by mid-June 2023. The Council did not issue the final Plan until early November 2023. This was a delay of five months and was fault. Without a final Plan, Mrs X had no way of appealing to the SEND Tribunal to challenge the provision in the Plan, which caused her undue frustration.
45. It is apparent much of the delay was because although the Council issued W’s draft EHC Plan in June 2023, it did not do its first consultation with a school (school A) until around September 2023. That was an unreasonable delay.
46. The Council has recently agreed to issue staff reminders about timescales for annual reviews and EHC Plan amendments so I have not made a further recommendation.

Complaint handling

47. The Council took three months too long to response to Mrs X’s stage one complaint and two months too long to answer her stage two complaint. The delay was not in accordance with the Council’s complaints policy and was fault. It caused Mrs X additional frustration.

What I have and have not investigated

48. Mrs X’s complaint to the Ombudsman also included that she was unhappy:
1. about how the Council administered W’s February 2023 annual review meeting. She said the Council tried to hold the review just between it and W’s school;
2. with the content of the July 2023 draft EHC Plan; and
3. about the actions of school A. Mrs X said the school did not support her or W and made false accusations against her.
49. I cannot investigate points (a) and (b) because they are too closely linked to Mrs X’s appeal on the special educational provision in the November 2023 Plan. As noted in paragraph 20, we cannot investigate matters which are connected to those considered at appeal. The consequence of any fault in the annual review process or draft EHC Plan would be that the November 2023 Plan was inadequate. Mrs X appealed to challenge the adequacy of the Plan.
50. I also cannot investigate point (c) because the Ombudsman has no jurisdiction to investigate complaints about the conduct of schools.

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Agreed action

51. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the avoidable upset, frustration and stress she experienced because of the Council’s failure to issue W’s amended EHC Plan promptly, its poor complaints handling and its failure to secure the special educational provision in W’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X £250 in recognition of her injustice.
3. Pay Mrs X £6,400 to recognise the impact of the lost special educational provision on W. This equates to £1600 per term. I have come to this amount with reference to the Ombudsman’s guidance on remedies, considering the provision in W’s EHC Plan, their age and their ability to engage with provision the Council would have put in place, but for the fault.
4. Remind staff that if the parent of a child or young person with an EHC Plan says they can no longer electively home educate, the Council’s duty to secure the special educational provision in the EHC Plan applies immediately. The Council should act without delay to secure the provision.
52. Within two months, the Council will take the following action.
1. Identify why the Council failed to arrange tutoring for W, despite saying it would. The Council should consider if any steps are needed to prevent that failing again in future and should send the Ombudsman details of those steps along with a timeline for their completion.
53. The Council will provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent the fault happening again in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman