Summary: We upheld Mr X’s complaint about the Council’s handling of his son D’s education, health and care plan. The Council failed to secure the provision in the plan while D was out of school. It also delayed in reviewing the plan when D moved into the area and finalising an amended plan. This caused uncertainty and frustration for Mr X. The Council will apologise and make a payment to Mr X and D. It will also remind staff of the timescales for reviewing and amending plans.

The complaint

1. Mr X complains about the Council’s handling of his son’s education, health and care plan. He says the Council delayed in reviewing the plan and has not updated the content. As a result, he says his son is not receiving the correct provision. He also complains about a delay in finding his son a school place.

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The Ombudsman’s role and powers

2. 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)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. If we are satisfied with a council’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)

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How I considered this complaint

5. I have considered the complaint made by Mr X and the documents he provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

9. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
10. 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.
11. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
12. The Council must make sure that arrangements named in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Transfer between councils

13. When a child with an EHC plan moves from one council area to another, the ‘old’ council must transfer the plan to the ‘new’ council. This must happen on the day of the move. Once transferred, the new council becomes responsible for maintaining the plan and for securing the special educational provision within it.
14. When the child cannot continue at the school named in their plan after they move, the new council must place the child at an appropriate educational institution temporarily until it amends the plan.
15. Within six weeks of the date of transfer, the new council must tell the child’s parent when they will review the plan or whether they plan to carry out a new needs assessment.
16. The plan must be reviewed either within 12 months of the plan being made or reviewed by the previous council, or within three months of the plan being transferred, whichever is later.
17. Within four weeks of the review meeting, the council must decide if it proposes to keep the plan as it is, amend the plan or cease to maintain it. It must tell the child’s parents its decision.
18. If the council decides to amend the plan it must start the process without delay. It must send the parents a copy of the existing plan and a notice providing details of the proposed amendments. It must give parents at least 15 calendar days to comment on any proposed changes. The council must issue the amended final plan as quickly as possible and within eight weeks of the original amendment notice.

What happened

19. Mr X’s son, D, is 6. He is diagnosed with autistic spectrum disorder and had an EHC plan from another council issued in March 2018. The plan included:
• a daily speech and language programme;
• access to communication aids;
• opportunities to develop D’s social interaction;
• strategies to extend his attention and concentration; and
• a programme devised and monitored by the occupational therapy service.

D attended a special school.

20. Mr X and his family moved to this Council’s area in February 2019. His wife let the Council know about the move in advance. D’s EHC plan was due for an annual review shortly after.
21. At the end of February, an officer sought home tuition for D while the Council looked for a school place.
22. The Council’s Special School Panel considered D’s case in March. The panel noted D’s EHC plan needed to be reviewed and was based on a needs assessment from 2017. The panel could not decide whether D needed specialist provision. It recommended a specialist teacher and headteacher visit D at home to clarify his needs and identify what education he needed.
23. The home visit took place three weeks later and the Council commissioned a tutor to provide 15 hours of home tuition a week. Mr X had concerns D could cope with this level of tuition and so the Council agreed to take a gradual approach with reduced hours until D started attending school. D also had play sessions at home twice a week.
24. The Council approached one of Mr X’s preferred schools for D in late March. In May, the Special School Panel agreed to a place at the school, with a phased start from early July. The Council also arranged for a speech and language therapist to visit D in June.
25. Mr X complained to the Council at the end of May. He said D was not receiving the provision in his EHC plan and the Council had not reviewed the plan as it should. He said the Council told him it could review the plan based on reports from those providing home tuition and the speech and language therapist, or he could wait until D started school and it would review the plan then.
26. In response, the Council said it thought it had agreed with Mr X that it would be better to wait until D started school to review his EHC plan. It said this was so it could be completed by staff who knew D and the outcomes would be relevant to the school. It said it would have an up-to-date speech and language therapy report by then which it could include in the revised plan. It also said it had told Mr X to access the occupational therapy drop-in clinic.
27. This visit from a speech and language therapist was later cancelled and not rescheduled before D began attending school.
28. Mr X was dissatisfied with the Council’s response to his complaint. He reminded the Council it had a duty to secure the provision in D’s EHC plan. He asked why the Council had not taken any action to review D’s plan and why he was not receiving the provision he was entitled to.
29. In response, the Council said as D had accessed fewer speech and language sessions that he should have, it would arrange sessions to take place through the summer holiday if Mr X wanted it to. The Council said it was unfortunate the delay in securing a school place had led to a delay in reviewing D’s EHC plan and apologised. It said it had implemented a new process to ensure it reviewed EHC plans as a priority when children moved into the area and could not secure a school place immediately.
30. D did not receive any speech and language therapy sessions during the summer holiday. The Council says the family did not take up its offer to deliver sessions through an independent provider.
31. D’s school held an annual review meeting in November 2019, during which D’s family and the school proposed changes to D’s EHC plan. The school says it sent the paperwork from this meeting to the Council immediately, but the Council says it did not receive it.
32. The Council sent Mr X a final EHC plan in December 2019, without giving him an opportunity to comment on any proposed changes. Except for the school named in Section I, the content of the plan was the same as the one issued by the previous Council in March 2018. It did not contain any updated information from D’s parents, his school or the people who had provided him with home tuition. Although he was unhappy with the content of the plan, Mr X did not appeal to the SEND tribunal.
33. In February 2020, the Council asked D’s school for its report from his annual review. It issued an amended draft plan in October 2020, which reflected the discussions at the annual review in November 2019, almost a year earlier. Mr X immediately provided comments on the plan highlighting the changes he felt were needed. The Council has still not issued a final plan.
34. Mr X says the Council’s failure to update the plan means D has missed provision he needs to achieve his outcomes.

Analysis

Handling of reviews

35. The Council should have reviewed D’s EHC plan by early May 2019, three months after he moved into the area. I have not seen any evidence Mr X agreed to delay the review until D had started school. There is no provision in the Code to delay the review for this reason. The failure to carry out the review is fault and caused a delay in securing an updated plan for D.
36. Following the annual review in November 2019, the Council should have issued a decision to amend, maintain or cease to maintain D’s plan within four weeks. I cannot say why the Council did not receive the annual review report from D’s school. However, the Council had committed to reviewing D’s plan once he started school. It should have asked for the report from the annual review before issuing the final plan in December 2019. It failed to do so, and this was fault.

Delays in issuing EHC plans

37. If the Council had carried out the review on time after D moved into the area in 2019, it should have issued a decision to amend the plan by early June and completed the amendments by the end of July. It did not issue an amended plan until December, 18 weeks later. This was fault and caused uncertainty for Mr X about what provision D was entitled to.
38. The Council’s reason for delaying the review of D’s plan was so his new school could contribute. But it issued an amended final plan without input from any of staff who had worked with D, either at home or since he had started school. It also failed to send Mr X a notice of the amendments for him to comment on. The Council has not followed the process set out in the Code and this is fault. This caused Mr X frustration and undermined his confidence in the Council’s ability to review and update D’s plan adequately and involve his parents in the process. I cannot comment on the content of the plan issued in December 2019 because Mr X could have appealed to the SEND tribunal.
39. There was a lack of communication between the Council and Mr X from December 2019 to October 2020. This, combined with the delay in issuing an amended final plan since October 2020, has caused uncertainty for Mr X about what the Council is doing with D’s plan. This delay continues to cause an injustice to Mr X. He does not know how the Council has taken account of his comments or what provision the Council is intending to secure for D. He cannot appeal to the SEND tribunal about the parts of the plan he disagrees with because the Council has not finalised D’s plan.

Provision

40. The Council put education provision in place for D shortly after he moved to the area, but it has not shown how this delivered the special educational needs provision in his EHC plan. For example, there is no evidence D received the speech and language or occupational therapy described in his plan. It was not enough to direct Mr X to an occupational therapy drop-in as an alternative to securing the provision. The Council was responsible for delivering the provision in D’s plan, and it failed to do so. These faults mean D missed provision he was entitled to while he was out of school.
41. I cannot say that D has missed provision since he started attending school in July 2019. Mr X could have appealed to the SEND tribunal about the parts of the plan issued in December 2019 that he disagreed with. In October 2020, D’s school told the Council it had been delivering provision in line with the discussions which took place at D’s annual review in November 2019. When the Council issues a final amended EHC plan for D, Mr X can appeal to the SEND tribunal if he disagrees with its content.
42. In response to my draft decision, the Council said it is in the process of implementing a SEND portal. It hopes this will improve communication and the Council’s ability to monitor timescales in relation to annual reviews. From September 2021, the team which supports children who are out of education will have access to a base where it can work with children with more complex needs who may have difficulties accessing temporary provision until a school place is identified.

Agreed action

43. Within one week of this decision, the Council will issue a final EHC plan for D and advise Mr X of his appeal rights if he disagrees with the content.
44. Within one month of this decision, the Council will:
• apologise to Mr X and D for the faults identified in this investigation.
• pay £800 to remedy the injustice to D of his lost special educational needs provision from March to July 2019. In calculating this remedy, I have considered D’s age and what provision he received in this period. I have taken account of school holidays and the provision set out in D’s EHC plan. Mr X can use this money for D’s educational benefit to ensure he catches up, as far as possible, on the provision he missed.
• make a further payment of £300 to recognise the impact on Mr X of the Council’s delays and poor communication, leading to frustration, uncertainty and time and trouble in seeking a resolution.
45. To improve services for other children and young people, the Council will:
• remind officers of the timescales set out in the Code for carrying out reviews, issuing decisions after annual reviews, and amending plans.
• review its approach to carrying out reviews for children and young people transferring in with an EHC plan from another council, to ensure they are completed within three months in all circumstances.
• ensure it secures the provision outlined in the EHC plan for children and young people receiving home tuition while waiting for a school place.
46. The Council will provide evidence to the Ombudsman of its compliance with these service improvements within three months of this decision.
47. The Council will review the effectiveness of its new SEND portal within three months of its launch to ensure it is improving communication with parents and carers after annual reviews as intended.

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Final decision

48. I uphold this complaint. Mr X and his son have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman