Summary: Mrs X complained about failings and delays in the annual review process and in issuing a final amended EHC Plan for her daughter. Mrs X complained the Council failed to provide appropriate or adequate support when she removed her daughter from the school roll. And of poor communication from the SEND Team. We found the delay and failure to follow proper procedure in the Annual Review process and in issuing an amended Final Plan is fault. This fault has caused Mrs X distress and frustration. The Council has agreed to apologise and make a payment to Mrs X and issue reminders to relevant staff.

The complaint

1. The complainant, Mrs X complained about failings and delays in the annual review process and in issuing a final amended EHC Plan for her daughter.
2. Mrs X also complained about difficulties in accessing information of the Council’s EHC Hub which the Council failed to address and poor communication from the SEND Team.
3. In addition Mrs X complained the Council failed to provide appropriate or adequate support when she removed her daughter from the school roll. Mrs X says she had no choice but to home educate her daughter as the school was not providing the provision in her daughter’s EHC Plan and there were safeguarding concerns.

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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. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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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What I have and have not investigated

9. Mrs X has also complained about the Council’s failure to provide a personal budget for her daughter’s Education Other Than At School (EOTAS) since February 2024. However, as Mrs X has appealed to the SEND Tribunal regarding the content of the EHC Plan and the named setting I am unable to consider her concerns about the Council’s failure to provide EOTAS/ a suitable education after 14 February 2024.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

12. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
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. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. Where the 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 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). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school.  
17. There is a right of appeal to the Tribunal against a number of decisions regarding EHC Plans. Including the description of a child or young person's SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;

Elective Home Education (EHE)

18. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
19. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
20. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
21. Where a child has an EHC Plan that names a school or type of school and the parents have decided to educate at home the council is not under a duty to make the SEN provision set out in the Plan if it is satisfied the arrangements made by the parent are suitable.

What happened here

22. Mrs X’s daughter, Y has an EHC Plan and attended a mainstream primary school. As Y was in Year 6, on 23 October 2023 the school held an annual review for Y’s transition from primary to secondary school.
23. The review report notes it was agreed that as the EHC Plan had only recently been finalised it was not necessary to make any amendments or change any set targets or provisions. Y’s attendance at that time was 52% and there was a need to allow time for any suggested targets and/or provisions to embed and to show progress.
24. Mrs X’s representative chased the Council for an update four weeks later on 20 November 2023. The Council then wrote to Mrs X on 8 December 2023 to advise it would be amending Y’s EHC Plan.
25. On 14 December 2023 Mrs X wrote to Y’s school advising she had decided to home educate Y. She asked the school to remove Y from the roll. Mrs X noted the Government recommended schools offer meetings with those considering home education. She told the school she did not want a meeting to discuss home education as they had already made their decision.
26. Mrs X subsequently spoke to an Elective Home Education (EHE) officer at the Council. Mrs X told the EHE officer she felt let down by the school as it had not recognised Y’s needs. She wanted to pursue a place at a special secondary school.
27. Y was registered as EHE on 19 December 2023. An EHE officer carried out an initial visit on 7 February 2024. The officer deemed Y’s education unsuitable and made recommendations that may help the education to be suitable and full time. They arranged a further visit for 6 March 2024.
28. The Council sent Mrs X a draft amended EHC Plan on 13 February 2024. The Council asked Mrs X to provide her representations on the draft plan and details of her preferred setting within 15 days.
29. Mrs X spoke to an officer on 14 February 2024 and provided details of Y’s learning disability diagnosis and Occupational Therapy output. The Council finalised the EHCP the same day naming School 1 from September 2024. Mrs X questioned this as they had discussed School 2 Mrs X said she would not have chosen School 1.
30. The Council sent Mrs X a final copy of the EHC Plan on 15 February 2024. The Plan stated the type of setting for the rest of the academic year as mainstream, but did not name a school. It named School 2 from September 2024.
31. Mrs X’s advocate contacted the Council on 15 February 2024 with Mrs X’s new phone number and asked for the EHC Hub to be updated. They also asked for copies of the draft and final EHC Plans and a list of the schools the Council has consulted. The advocate then chased a response on 21 February 2024.
32. Mrs X and her advocate contacted the Council again on 27 February 2024 as she could still not access the Council’s EHC HUB.
33. On 28 February 2024 Mrs X made a formal complaint to the Council about the service she had received in relation to the Phase transfer of Y’s EHC Plan and the lack of provision while she was out of school. She specifically complained:
• About a lack of support when she removed Y from the roll. She asserted the Council should have provided the provision in Y's EHC Plan until an annual review took place and the Council agreed to EHE.
• She was disappointed the Council had not provided a budget for Education Other Than At School (EOTAS) for the remainder of the school year, assisted Y complete her SATS, or helped with transition to secondary school.
• Her contact details had not been updated in the EHC Hub so she had been unable to access the latest EHC Plan
• Delays in the EHC Plan annual review process as the Council had:
1. failed to notify her of its decision within four weeks of the annual review
2. issued a draft amended Plan on 9 February 2024, which she had not received and then issued a final amended EHC Plan on 15 February 2024, in breach of the 15-day consultation process. Mrs X said she had still not received a copy of the Final Plan.
• Poor communication with the SEND team which had impacted on her rights regarding the EHC Plan.
34. On 22 March 2024 Mrs X told the EHE officer she no longer wished to home educate Y. The Council made a referral to a tuition service the same day.
35. The Council responded to Mrs X’s complaint on 25 March 2024 and addressed her concerns in turn. In relation to Y’s removal from the school roll the Council noted Mrs X’s decision to EHE had been in place since 19 December 2023. It said that as Mrs X had opted to home educate the responsibility for implementing the provision in Y’s EHC Plan primarily fell to her as Y’s parent. The Council acknowledged it remained responsible for ensuring the EHC Plan is appropriately and regularly reviewed, however the provision of the support outlined in the Plan was Mrs X’s responsibility.
36. It also noted Mrs X said she no longer wished to home educate Y and that the Council had made a referral to a tuition service who would contact Mrs X.
37. The Council told Mrs X that an EOTAS package could only be agreed via an EHC needs assessment, reassessment of needs or annual review. It said it could only arrange for any special educational provision to be made otherwise than in school if it was satisfied it would be inappropriate for the provision to be made in school. The Council noted Y’s plan specified her needs could be met in a mainstream school and named School 2 from September 2024.
38. As Y’s annual review took place in October 2023, the Council said there were no grounds to call an early annual review. Mrs X would need to request this outlining the reasons for an early review.
39. In relation to Mrs X’s access to the EHC Hub the Council noted Mrs X had reported problems logging in on 15 January 2023. This was resolved by 30 January 2023. Mrs X and her advocate both contacted the Council on 15 February 2024 to confirm Mrs X’s phone number had changed. The Council apologised this was not updated immediately and confirmed it was completed by 4 March 2024. Its records showed Mrs X’s account was active and that she had last accessed the Hub on 5 March 2024.
40. The Council noted that although Mrs X’s access to the Hub had been restricted it had also emailed copies of Y’s EHC Plan to the email address it held for Mrs X. It noted Mrs X had not informed the Council prior to the EHC Plan being issued that she had changed her email address.
41. The Council apologised for the delay in completing the annual review process. It noted Y’s EHC Plan was finalised on 15 February 2024, in line with statutory requirements for children moving between phases of education. The Council also apologised for the delay in communication. It accepted there had been missed opportunities to respond to her communication.
42. However, the Council did not consider the delay in amending Y’s EHC Plan or the lack of communication between December 2023 and February 2024 caused a significant impact. It noted the provision required to meet Y’s needs remained the same.
43. As Mrs X did not feel the Council had fully addressed her concerns she asked for her complaint to be considered further.
44. The Council responded on 31 July 2024. It disputed Mrs X’s view that the Council retains responsibility for the provision in the EHC Plan when a parent decides to home educate. The Council reiterated that it remained responsible for reviewing the EHC Plan annually, but it was not required to provide any special educational provision set out in the Plan.
45. It referred to the SEND Code of Practice 2014 which says: ‘the local authority is not under a duty to make special educational provision set out in the plan provided that it is satisfied that the arrangements made by the parents are suitable’. The Council noted the EHE officer had initially deemed the education unsuitable and had shared recommendations. It said this led the team to believe the education was not entirely unsuitable at that stage and that Mrs X would implement the recommendations. When Mrs X advised she no longer wanted to home educate the Council made a referral for tuition.
46. The Council advised there were no records of the discussion with the Head of Service about an EOTAS package or what was agreed. It noted the Council had agreed to issue a small personal education budget whilst looking for a placement and that a tuition service was commissioned.
47. Mrs X has appealed to the SEND Tribunal in relation to Y’s needs, the provision and the setting/ school named in Y’s EHC Plan in July 2024.
48. As Mrs X remains unhappy with the Council’s actions she has asked the ombudsman to investigate her concerns.

Analysis

49. The Council’s failure to complete the EHC Plan Annual Review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. In this case the Council took over 16 weeks. The Council should have issued a final Plan by 15 January 2024 but did not do so until 15 February 2024.
50. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
51. It is also concerning that in order to meet the statutory deadline for phase transfers the Council issued Y’s final EHC Plan without allowing Mrs X the required 15 days to comment and make representations. This failure to follow the SEND regulations and guidance is also fault.
52. Mrs X asserts the Council should have supported her once she removed Y from the school roll and maintains it was still required to provide the provision in Y’s EHC Plan. However, in choosing to educate Y at home, Mrs X assumed full responsibility for Y’s education, including financial responsibility for any costs involved.
53. In addition once she was being home-educated the Council no longer had a legal duty to secure any of the special educational provision in Y’s EHC plan. This is on the basis the Council has satisfied itself Mrs X is making suitable alternative arrangements. The Council initially deemed the education Y was receiving at home unsuitable, and made recommendations which could make the education suitable. It was appropriate for the Council to allow Mrs X an opportunity to implement these recommendations and then review the provision. Mrs X told the Council she no longer wished to EHE before this review was completed.
54. In the circumstances we would not have expected the Council to provide any educational provision while Y was EHE.
55. Mrs X has also complained that Y has not received any tuition or an EOTAS budget as agreed in early March 2024. This is not an issue I can consider as Mrs X has appealed to the SEND Tribunal. 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)
56. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
57. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
58. The Council has acknowledged there were failings in its communication with Mrs X with missed opportunities to respond to her communication and restricted access to the EHC Hub. These failings are fault.
59. Having identified fault I must consider whether this has caused Mrs X an injustice. The delay and failings in the annual review process caused Mrs X distress and frustration. It also delayed her ability to exercise her right of appeal to the SEND tribunal in relation to the setting and/ or content of the plan.
60. This distress and frustration has been exacerbated by the poor communication from the SEND Team and delays in restoring Mrs Y’s access to the EHC Hub. I consider the Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.

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Action

61. The Council has agreed to:
• apologise to Mrs X and Y for the delay and failure to follow proper procedure in the Annual Review process and in issuing an amended Final Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Mrs X £200 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
• remind relevant staff that if the Council agrees to amend an EHC Plan, it must allow the parent of young person at least 15 calendar days to comment or make representations on the proposed amendments, and must issue a final amended EHC Plan within 12 weeks of a review, in line with the statutory guidance.
62. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice. The Council should take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman