Summary: There has been some fault by the Council in the way it has managed the complainant’s son’s Education, Health and Care Plan during 2018 and 2019. The Ombudsman has decided to wait the outcome of the complainant’s current Tribunal appeal before making decisions about the injustice caused. Therefore, the Ombudsman will discontinue this current investigation.

The complaint

1. The complainant, who I refer to as Mrs X, complains that the Council has failed to follow the correct process when carrying out reviews of her son’s Education, Health and Care (EHC) Plan. I refer to her son as Child B.
2. Child B is diagnosed with Autistic Spectrum Disorder (ASD), dyslexia and functional behaviour delays. He also has hyper mobile joints, sensory difficulties, sensory modulation, visual perception and auditory difficulties.
3. Child B was placed at one of the Council’s medical educational ‘hub’ where he has been pursuing his GCSE options after an assault at his previous school.

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What I have investigated

4. I set out in the last paragraph what the Ombudsman is not able to investigate.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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))
6. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
7. The Special Educational Needs and Disability (SEND)Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that the Ombudsmen cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
8. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction.

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How I considered this complaint

9. I have spoken to the complainant on the telephone and I have received written comments from the Council and complainant.
10. I issued a draft decision statement and I have taken into account the Council and the complainant’s additional points.

Legal and administrative

Special educational needs

11. Councils and Clinical Commissioning Groups (CCGs) must have arrangements in place to plan and provide education, health and social care services for children and young people with special educational needs. They must agree how they will work together to achieve this.
12. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.

Provision and Appeals

13. Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan, and the school named on the Plan. Appeals must be made within two months of the disputed decision.

Annual reviews and reassessments

14. An EHC Plan sets out the child's educational needs and what arrangements there should be to meet them. The council is responsible for making sure that arrangements specified in the EHC Plan happen and are reviewed each year.
15. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
16. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate. The first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review.
17. The Code says councils should provide a list of children and young people who will require a review of their EHC Plan that term to all headteachers and principals of schools, colleges and other institutions attended by children or young people with EHC Plans, at least two weeks before the start of each term. It says councils should also provide that list to the Health Service and to council officers responsible for social care for children and young people with SEN or disabilities. This is to enable professionals to plan attendance at review meetings or provide information and advice.
18. The Special Educational Needs and Disability Regulations also states that, councils must ensure that a meeting to review the EHC Plan is held and they can require the head teacher to arrange and hold the meeting.
19. The following should be invited to the review: the child’s parent or the young person, an officer from the council, a health care professional and a social services officer.
20. At least two weeks’ notice must be given of the meeting. The person arranging the meeting must obtain advice and information and circulate this two weeks before the meeting.
21. The council must inform parents within four weeks of the review, whether it will amend the Plan, keep it as it is or cease to maintain the Plan. Councils should notify the parents, young person and school of its decision.
22. Where the council is considering amending an EHC Plan, following a review, it must send the child’s parent or the young person a copy of the EHC Plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments.
23. When sending the young person or parents the final amended Plan, it must tell the child’s parent of the right to appeal to SEND Tribunal and of the need for mediation.

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What I found

24. The Council converted Child B’s Statement of SEN to an EHC Plan at the end of December 2017. In the Plan it stated the first annual review would be 1 October 2018.
25. Child B started at the hub in April 2018 when in Year 9. He was dual registered with his previous school, School Y. The Council’s initial plan had been for Child B to be at the hub on a temporary basis. However, he settled well and did not want to return to School Y, where he had been bullied and suffered a physical attack which had left him with both emotional and physical difficulties.
26. Child B started Year 10 in September 2018, at the hub, undertaking at that time, four GCSEs. Mrs X wanted Child B to remain at the hub for the completion of Years 10 and Year 11, as did he.

Tribunal hearings in 2018

27. In early 2018, Mrs X appealed the final Plan. There was a hearing in March 2018, which the Council’s representatives did not attend. The Tribunal requested the Council to carry out certain assessments.
28. The final appeal hearing was not until October 2018. Mrs X agreed, at the hearing, that Child B should return to School Y because, she says, this was a better option for Child B then being sent to another school, which the Council had recommended. At this time, the view was that the hub could not be named in Child B’s Plan.
29. The Tribunal issued its decision that Child B should return to School Y as the named school on his Plan. It then transpired that School Y seemed unaware of the appeal and explained to the Council that it could not admit Child B in Year 10 but it might have some spaces for Year 11.
30. In November 2018, School Y suggested an emergency review because it was aware that it could not meet the provision set out in Child B’s Plan. Mrs X was also concerned and had supported the request for an emergency review.
31. The Council did not agree to do this and said that the next annual review would be one year after the Tribunal hearing of October 2018.
32. In late 2018, Mrs X appealed the First Tier Tribunal decision, that Child B should return to School Y, to the Upper Tribunal on a point of law. She was looking for ‘Education otherwise’ as the named provision because, at this stage, she accepted the Council’s advice that the hub could not be the named provision in Child B’s Plan.
33. Mrs X withdrew the appeal because she says that she was reassured by the hub, and by the Council, that Child B would not be returned to School Y, or any new school. Mrs X says that she was grateful that the hub had accepted Child B and that it remained willing for him to remain to complete his GCSEs there.
34. Had Mrs X known what she now knows, that the hub can be named in Child B’s Plan, she might have pursued her appeal to the Upper Tribunal. She learnt that this was possible as a result of her recent appeal (September 2019) to the Tribunal in relation to Child B’s sibling.
35. However, I have decided that this aspect of Mrs X’s complaint cannot be considered because Mrs X exercised her right of appeal to the Upper Tribunal, even if she subsequently withdrew the appeal. This prevents the Ombudsman from investigating this.

Annual reviews

36. At a meeting at the hub on October 2018, Mrs X stated that there should be an annual review of Child B’s Plan that month, ie October 2018. This was recorded as the date the review was required in Child B’s Plan of December 2017.
37. The Council told Mrs X that this was not correct given there had just been a Tribunal hearing.
38. On 18 November 2018, at the meeting at the hub, the Council maintained that the next annual review would be one year after the Tribunal hearing of October 2018.
39. In May 2019, there was another meeting at the hub to discuss Child B’s progress. But this was not an emergency annual review, as Mrs X had requested. There was talk of of a new SEN school as a possibility for Child B. Mrs X made it clear that it was not appropriate to move Child B at this stage.
40. In October 2019, there was an annual review for Child B. Mrs X had arranged an assessment of Child B which confirmed the view that his post traumatic stress disorder (PTSD), caused by the previous incident at School Y, and other difficulties, were getting worse without proper SEN support.
41. The Council subsequently agreed to pay for this PTSD assessment.
42. The Council issued an amended EHC Plan in December 2019. Mrs X has now appealed to the SEND Tribunal. The final hearing will be in April 2020. Had she had this right of appeal sooner, in late 2018, she says that a Tribunal hearing could have resolved the disputed issues, which have persisted through 2019, sooner.

Curriculum provision

43. Child B was initially following four GCSEs, English Literature, English Language and Dual Science. The Council agreed to fund occupational therapy (OT) provision for him and the funds have been paid directly to Mrs X and continue to be so. This is because OT is required for Child B’s SEN but the hub cannot provide this.
44. Mrs X complained that Child B wanted to do Art GCSE and that this was required for him to gain a place at his next preferred post 16 educational placement. In June 2018, Mrs X says that she first raised this request with the hub and then pursued this with the Council in November/December 2018.
45. The Council says that it was first aware of the request for Art tuition in February 2019.
46. The Council provided an Art tutor as from April 2019, with whom Child B got on well. But the tutor left during the summer holidays (I believe he changed agencies). After email correspondence during August and September 2019, it was finally agreed that the tutor could teach Art to both Child B and his sibling at a different hub each week. The Art tutor was available as from 23 September, but Mrs X requested the Art sessions resumed on 30 September 2019.
47. The Council says that the curriculum at the hubs have now been broadened, as from September 2019. The current situation is that Child B is doing English Language, English Literature, Double Science, Statistics and Citizenship.
48. Child B had requested Geography tuition, but this has now been replaced with music tuition although it is not clear that he would be able to do a GCSE Music in one year. This is now an additional subject rather than as a GCSE subject.
49. Child B requires 5 GCSEs above level 4 to access a place at his preferred post 16 College to do Art. This is where Child B wants to attend post 16. It also explains why Mrs X has been keen to ensure that Child B took as many GCSEs as possible to better guarantee him a place at this College.

Analysis-is there fault?

Education at the hub

50. Child B is receiving alternative education at the hub.
51. It is positive that the hub has now clarified and ensured a good curriculum as from September 2019. I can see that the hub initially was working on the basis that it was a temporary placement for Child B working alongside the named school, School Y. Therefore, the hub expected School Y to fill the gaps in the curriculum, and SEN provision, which the hub could not provide.
52. But that has not provided possible. So, it has been for the hub to make all the provision for Child B in line with his Plan. However, in recognition that the hub could not provide for all of Child B’s SEN, the Council then provided the OT by making a direct payment to Mrs X so that she could arrange this for Child B.
53. The Council also agreed to pay for the assessment of Child B’s PTSD, although to date no therapy has been provided because of difficulties in finding a suitable therapist.
54. I consider that it is fair to put Mrs X’s concerns about the hub provision in this wider context. So, I do not find fault here and I also recognise that the hub has updated its curriculum as from 2019.

Annual reviews

55. Child B’s Plan of December 2017 stated that the first annual review should be held in October 2018.
56. The Council thought that, having a Tribunal hearing in October 2018, this meant that Child B’s Plan had been reviewed. But a Tribunal hearing is different to an annual review. An annual review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate and are being provided. In addition, the Code and Regulations say a first review must be held within 12 months of the date when the EHC Plan was issued, and then within 12 months of any previous review.
57. I cannot see that a Tribunal hearing means an annual review should not take place under the original arrangement set out in a final EHC Plan.
58. So, the Council has been at fault and there should have been an annual review in October 2018 as requested by Mrs X. As it was there was not an annual review until a year later, in October 2019.
59. Mrs X has now appealed the amended final EHC Plan issued after the October 2019 annual review. The Tribunal decision will not be known until April 2020.
60. If Mrs X had an annual review in October 2018, and she had been dissatisfied with Child B’s Plan (which is likely she would have been), she could have pursued her concerns about the Plan through her appeal right to SEND Tribunal. Matters, therefore, which remained a concern during 2019, could have been resolved sooner.
61. The Council, however, does not think that there has been an injustice to Child B because the Council has provided services to meet his SEN needs.
62. My view is that it is appropriate to await the outcome of Mrs X’s current Tribunal hearing, so I can better assess if there is any resulting injustice to Child B by the delay in arranging the annual review in October 2018.

Art tuition

63. Taking Art GCSE was important to Child B so that he could gain a place at his preferred post 16 College to study Art, starting in September 2020. There is evidence that Mrs X asked the hub about this in June 2018. It is not clear if, and when, the hub referred this to the Council. But the Council says it was not aware of the request until February 2019.
64. It is difficult to resolve discrepancy of facts and I am not able to say exactly what happened to Mrs X’s request for Art tuition in June 2018. But, given the importance of Art for Child B (for his post 16 aspirations), my view is that the request for Art tuition should have been passed sooner to the Council. On that basis, there has been some avoidable delay.

Has there been injustice?

65. Potentially, there is an injustice resulting from the faults identified. But I will not decide whether this is the case until the outcome of Child B’s Tribunal is known in April 2020.
66. So, I will discontinue this investigation and will reopen it once the current Tribunal decision is known.

Final decision

67. I consider there has been fault by the Council in the way identified. But, I will now discontinue my investigation for the reasons provided.

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Parts of the complaint that I did not investigate

68. The Ombudsman cannot consider Mrs X’s complaint about not naming the hub in Child B’s Plan. This is because she exercised her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman