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Walsall Metropolitan Borough Council (21 004 225)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 Jun 2022

The Ombudsman's final decision:

Summary: Mrs X complains about how the Council has dealt with her child’s Education, Health and Care Plan annual reviews. She says it failed to provide her child with suitable education and provision. Mrs X also complains the Council provided her with inaccurate responses to her complaints. The Council was at fault for its delays, non-completion and failing to properly follow statutory guidance during the Education, Health and Care Plan annual review processes. This has caused Mrs X’s family significant distress, frustration and time and trouble and the child was disadvantaged by not having an up-to-date Plan for two years. The Council will take action to remedy the injustice.

The complaint

  1. Mrs X complains about how the Council has managed her child’s, Y, education and special education needs provision. In particular, she complains the Council:
      1. failed to provide appropriate education to Y between February 2019 and January 2021
      2. failed to complete an Education, Health and Care Plan (EHCP) annual review in 2019
      3. failed to issue a final EHCP after issuing a draft in August 2020
      4. delayed issuing a final EHCP until May 2021, after the Council held a further review meeting in October 2020
      5. refused Y provision for a bespoke distance learning package in August 2020 which the Council later agreed to and implemented in February 2021
      6. provided inaccurate responses to Mrs X’s complaints.
  2. Mrs X says the Council’s failings has caused Y, Mrs X and her family significant distress, frustration and time and trouble. Mrs X says Y has been denied access to appropriate support and provision to meet her needs.

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What I have investigated

  1. I have investigated whether the Council met its statutory responsibilities in conducting Y’s annual EHC Plan reviews and issuing the final plan. This covers the period, May 2019 to May 2021.
  2. I have also investigated the Council’s alleged failure to provide appropriate education to Y from September 2019. This is because our previous investigation on this matter covered events up till July 2019 and I also took into consideration the summer holidays.
  3. I have not investigated Mrs X’s concerns about the Council’s failure to complete Y’s 2021 EHC Plan annual review process. While I recognise this is part of an ongoing issue, I cannot include this matter in the scope of this investigation. Mrs X needs to raise this issue in the first instance with the Council.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  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. 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.
  4. 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)
  5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  7. 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)
  8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries.
  2. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Education, Health and Care Plans

  1. 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. The Ombudsman cannot investigate or make changes to the sections about special educational provision. Only the SEND Tribunal can do this.

Annual Reviews

  1. Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain, amend or cease to maintain the EHC Plan.
  2. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
  3. 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 providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
  4. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2) (c) SEND Regulations 2014)
  5. 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 8 weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
  6. Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
  7. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
  8. Parents do not have a right of appeal until a final EHC Plan (or decision not to issue a Plan) is made and a decision letter issued by the Council.

Alternative Provision and Law

  1. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
  2. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
  3. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Government guidance, Ensuring a good education for children who cannot attend school because of health needs)
  4. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
  5. The Courts have said that it is for a council to determine what is ‘suitable education’.

Council’s Policy

  1. …… alternative provision for children medically unfit to attend school and the framework surrounding it should offer good quality education. This support should meet the child’s individual needs, including social and emotional needs and enable them to thrive and prosper in the education system.
  2. The provision for children who are medically unfit to attend school will ensure that … disruption to learning is minimised and there is a continuity of education provision within the school curriculum.
  3. Children and young people on a school roll, with a diagnosed medical need that does not require in patient or day patient hospitalisation, are generally referred by the home school to School A as the alternative provider.
  4. If a child has complex long term health issues and the pattern of illness may be unpredictable, regular liaison between the LA, School, medical professionals and School A will enable appropriate provision to be made.
  5. The child’s progress will be reviewed at least every 6 weeks by School A, in consultation with the parent / carer, the home school and other relevant services. Reviews will be made more frequently according to need. It should be recognised that a child’s educational needs and ability to access education may change depending on their health and that the programme may need to be flexible to accommodate this.
  6. Schools and alternative providers should collaborate with parents/carers, the local authority and all relevant health services to ensure the delivery of effective education for children with additional health needs.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. Y suffers from high levels of anxiety and disrupted sleep due to autism spectrum disorder (ASD) and pathological demand avoidance (PDA). Y also suffers from severe anxiety and has a revolving sleep pattern.
  3. Y has an Education, Health and Care (EHC) Plan.
  4. Y stopped attending secondary school regularly in October 2018.
  5. Y is on a school roll, a medical pupil referral unit which is an alternative provider that supports children with complex long term health issues.
  6. In May 2019, during Y’s EHC Plan annual review meeting, the Council said most of Y’s Plan objectives remained appropriate. But the Council increased funding to ensure Y’s one-to-one home visits continued by an additional staff member with relevant training to meet Y’s needs. The Council explained it was difficult to put a specific Plan in place for Y due to limited engagement with professionals and Y’s complex needs. It said it would await further contribution from occupational therapy (OT) and speech and language therapy (SALT) service before it could update Y’s Plan. This was to better understand the most suitable way to re‑introduce education to Y’s life. It was identified that Y remained on roll at the educational setting, but there was no expectation for Y to physically attend for some time. Y would continue to remain at home with one-to-one home visits and a transition would be discussed at a later date when Y felt more able to attend school. It was also suggested Y’s school put a bespoke package together which would be considered by the special educational needs (SEN) team.
  7. In June 2019, Y’s school made the OT and SALT referrals.
  8. In July 2019, Y’s school sent the Council the annual review meeting paperwork. It also sent the Council its bespoke package plan to support Y. In August 2019, the Council informed Mrs X it had agreed the bespoke package plan for Y.
  9. Due to the delays with the professional reports, the Council decided to make its own OT referral in September 2019.
  10. In mid-October 2019, Y’s school informed Mrs X that both SALT and CAMHS reports had been sent to the Council. Mrs X chased the Council for an update on its OT referral. The Council told Mrs X it was gathering information from relevant agencies and said it would make further amendments to Y’s Plan. It confirmed it would send Mrs X a copy of the amended Plan once completed.
  11. On 4 February 2020, the Council said it issued its decision letter which confirmed no changes were required in Y’s EHC Plan following the 2019 annual review.
  12. On 28 May 2020, the Council asked Y’s school to hold Y’s EHC Plan annual review. It sent the school a copy of Y’s Plan which the Council had not amended from the last review as it said no changes were required to the Plan.
  13. In early June 2020, Mrs X emailed Y’s school and the Council. Mrs X said she did not receive the Council’s decision letter. She raised concerns that she was told amendments would be made to Y’s Plan after the 2019 annual review meeting. Mrs X said she was not happy to proceed with another annual review until she had clarification as to what happened with the previous review.
  14. Mrs X made a complaint to the Council through her councillor. She said Y’s 2018 EHC Plan and the provisions were no longer fit for purpose. Mrs X questioned why the Council asked for another review meeting to be conducted when it was yet to amend Y’s Plan following the 2019 annual review. Mrs X said the Council agreed to provide Y with a bespoke programme in August 2019 and asked why it failed to include the programme in Y’s Plan. She complained the family was still waiting for a meeting with the Council to discuss the programme or the online learning package and for it to add the changes to Y’s Plan. She disputed the Council issued its 2019 annual review decision letter to her and Y’s school. Mrs X said there was no evidence to show it did. Mrs X also questioned why its alleged 4 February 2020 decision letter not to maintain Y’s Plan contradicted the Council’s correspondence to her in October 2019 that confirmed it was in the process of amending Y’s Plan.
  15. The Council apologised that Y’s EHC Plan had not been amended following the 2019 review meeting. It explained this was because Y’s school did not submit the required professional reports to it for consideration along with the annual review paperwork. The Council initially disputed it had communicated with Mrs X in October 2019 indicating it would amend Y’s Plan. In its follow up response, the Council accepted and apologised it had missed its October 2019 correspondence with Mrs X during its investigation.
  16. The Council said it understood Y’s Plan was still relevant. It explained it was Y’s health needs that prevented her from accessing provision. The Council confirmed it agreed a bespoke package plan for Y based on professional judgement that Y would need a great deal of specific intervention before introducing the thought of education. The Council explained the bespoke programme was a temporary provision to prevent Y’s total non-engagement. It said although the programme was not added to Y’s plan, it did not affect the delivery of the package. Y continued to receive 3 sessions per week safe and well checks from school, suggesting this was the extent Y could cope with. The Council said it had asked the school to hold the 2020 annual review so the latest professional reports and the 2019 paperwork would be considered when amending Y’s Plan. As regards its decision letter about the 2019 annual review, the Council said its investigation showed it had drafted the decision letter but failed to issue it to Mrs X. The Council apologised for any confusion caused by failing to issue the letter. But it reassured Mrs X that Y had not been disadvantaged by this error because the provision to meet her needs had been in place throughout.
  17. Mrs X disagreed with the Council that Y had not been disadvantaged with its delay and failings with the 2019 annual review process. Mrs X said Y has had: no flexibility with the bespoke provision due to Y’s sleep pattern, no access to the agreed online provision, SALT recommendation was not provided, and no other non-education needs were added to Y’s Plan. She explained Y missed out on almost 50% of teaching because she only received 4.5 hours per week instead of 3 days. She said Y received 3 hours of pastoral support instead of 8 hours and the online provision Y started in September 2019 was unsuitable as it was a school-based programme, so Y did not access any online provision. Mrs X added the Council also denied her the right of appeal to the SEND Tribunal due to its failure to issue the final Plan.
  18. The Council said the level of support it gave to Y was at an appropriate level for Y to cope with and was agreed with Mrs X and Y’s school. It explained the implementation of the provisions were challenging due to Y’s complex needs and sleep patterns. The Council said it had tried to adapt teaching arrangements to accommodate Y’s sleep patterns, for example, a timetable, online provision and resources provided so Y could access these when she could cope. But it said it was unable to establish whether Y accessed those resources. The Council said it would consider all relevant professional reports it received along with both 2019 and 2020 review paperwork. This would ensure Y’s complex needs were better understood and provisions tailored to these. The Council apologised to Mrs X for the ongoing difficulties experienced and confirmed it would continue to support Y and Mrs X.
  19. In August 2020, Mrs X asked the Council if it would consider engaging the services of another provider. This was so it could deliver a bespoke distance learning programme and to support Y’s school in meeting Y’s PDA needs. The Council considered but refused Mrs X’s request. It explained Y’s school was one of the Council’s vetted providers that delivers specialist support to students with SEN and that it already delivers a bespoke programme to Y.
  20. The Council agreed to issue Y’s proposed amended plan to include amendments from the 2019 review. It said it would also arrange the 2020 outstanding annual review and seek professional advice including educational psychologist and OT. This was so appropriate provisions could be tailored to Y’s needs.
  21. In late August 2020, the Council issued a proposed amendment to Y’s Plan following the 2019 annual review meeting.
  22. As I understand it, the Council said it did not receive any OT reports following the 2019 referrals. On 16 October 2020, following a fresh OT assessment, Y’s outstanding 2020 EHC Plan annual review meeting was held. Y’s school sent the 2020 annual review meeting paperwork to the Council before the end of October 2020. The Council closed Y’s 2019 review process on its system without issuing the final Plan.
  23. In December 2020, the Council agreed a bespoke package would be delivered by the external provider Mrs X previously requested. The Council confirmed the package would be funded and managed by Y’s school from available funding provided. The Council informed Mrs X of the amendments made.
  24. In February 2021, Mrs X chased the Council for an update on Y’s EHCP review process.
  25. Between March and April 2021, the Council issued two proposed amendment plans following Y’s 2020 annual review. The Council explained further delays were due to additional information and reports it received in response to the plan. It apologised to Mrs X for the delays and acknowledged it fell below its standards. The Council also accepted its duty to provide education had been poor and accepted this had a negative impact on Y’s education.
  26. On 28 May 2021, the Council issued Y’s final amended EHC Plan.
  27. Mrs X made a complaint to the Ombudsman. She complained about how the Council failed to properly conduct Y’s EHC Plan annual reviews (2019 and 2020). Mrs X also complained the Council failed to provide suitable education to Y between February 2019 and January 2021, it refused to provide bespoke provision between August 2020 and February 2021. Lastly, she complained the Council provided inaccurate responses to her complaint to it.
  28. In March 2022, Mrs X informed the Ombudsman that the Council is also yet to complete Y’s 2021 EHC Plan annual review process following the meeting held in October 2021.

Analysis

EHC Plan Annual Reviews

  1. Councils should ensure an annual review of a child’s EHC Plan is carried out within 12 months of the issue of the original plan or completion of the last review. The Council failed to follow the SEND code. This was fault.
  2. Issues I have identified with the way the Council conducted Y’s 2019 EHC Plan annual review include:
  • following the review meeting held in May 2019, the Council agreed to a bespoke programme to be provided by Y’s school in August 2019, but it failed to include the amended provision in Y’s plan.
  • the Council started the review process in May 2019 but failed to complete it when it closed the process on its system in October 2020 without issuing Y’s final Plan. The purpose of conducting annual reviews is to consider whether the special educational support and educational placement is still appropriate. The evidence shows Y was left without an up-to-date EHC Plan after the 2019 review meeting until May 2021.
  • there was no evidence to show the OT referrals made by the Council and Y’s school in 2019 were carried out. Evidence shows there was no OT assessment completed until October 2020. This was a significant delay and was fault. I would have expected the Council to have chased the assessments and reports.
  • the Council failed to issue its 2019 annual review decision letter to Mrs X. Evidence shows it agreed to make amendments to Y’s plan in October 2019 based on the professional reports it received. But in February 2020, the Council said it decided there were no changes required to Y’s plan. There was further confusion after complaints were received from the councillor on behalf of Mrs X. The Council initially said it issued its decision letter to Mrs X. But following its investigation and in its further response to Mrs X’s complaint, it said its decision letter not to amend Y’s 2019 plan was drafted in 2019 but the Council accepted it failed to issue Mrs X the letter.
  1. The Council’s delays, failure to complete Y’s 2019 annual review process and its failure to properly follow statutory guidance is fault. Even if the Council was attempting to take into account additional professional reports, the Council should have recognised it could not allow the situation to drift for that length of time. The Council should have issued its initial decision not to amend Y’s Plan and the final Plan so as to engage appeal rights much sooner. The Council’s failings have caused Mrs X’s family significant distress, frustration, avoidable time and trouble chasing the Council and Mrs X was left without any right of appeal for over two years.
  2. The Council held a further annual review meeting in October 2020 but did not issue Y’s final EHC Plan until May 2021. The Council took approximately 7 months to complete Y’s 2020 annual review process. This was not in line with the statutory guidance and is further fault. The delay caused Mrs X’s family significant distress, frustration, avoidable time and trouble chasing the Council and complaining.
  3. In response to my draft decision statement, the Council said it is working to improve its timeliness of EHC Plan annual reviews. As a result, the Council said it has processes in place to monitor the progress on its EHC Plan annual review timeliness.

Failure to provide appropriate education between September 2019 and January 2021

  1. On balance of probabilities, due to Y’s complex needs, I find it was unlikely she would have been able to access or engage with much education, in particular, the agreed 2019 bespoke programme. This is supported by Mrs X confirming that Y struggled with the 4-hour teaching per week as opposed the 3 days intended to be provided according to the bespoke programme.
  2. Having said that, I find had the Council not failed to properly carry out Y’s EHC Plan annual reviews and issued her final Plan in line with the SEN code, Mrs X would have had the opportunity to exercise her appeal rights. It would have been open to Mrs X to appeal the fact the agreed provision was not included in Y’s Plan. Or she could have challenged the non-suitability of the provision delivered to Y between September 2019 and January 2021. This was fault. On balance, I find Y missed out on the agreed provision the Council set out in the May 2021 final Plan.

Refusal to provide a bespoke distance learning package in August 2020 which the Council later agreed to and implemented in February 2021

  1. In August 2020, the Council considered but refused Mrs X’s request for it to engage the services of an external provider to deliver a bespoke programme to Y. However, following Y’s 2020 annual review meeting, the Council decided the package from the external provider initially suggested to it by Mrs X was required for Y’s needs. In early 2021, the Council engaged its services and agreed it would be funded and managed by Y’s school. This was fault. As explained above, if the Council had not delayed or failed to carry out the 2019 annual review process properly, it is likely the Council would have made this provision sooner. This caused an injustice to Y.

Failure to provide accurate responses to Mrs X’s complaint

  1. The Council provided some inaccurate responses to Mrs X’s complaint to it, in particular its October 2019 correspondence to Mrs X. The Council confirmed it would amend Y’s plan following the 2019 review meeting. However, in the Council’s response to Mrs X’s complaint, it initially disputed it agreed to amend the plan. But in its follow-up response, the Council accepted it missed the 2019 correspondence it sent to Mrs X to amend Y’s plan. Again, the Council’s poor complaint investigation led to conflicting messages as to whether it issued its decision letter for Y’s 2019 review to Mrs X. The Council has since apologised to Mrs X for these errors. This is a proportionate and appropriate remedy for the frustration caused to Mrs X and in accordance with our guidance on remedies.

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Agreed action

  1. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:
  • apologise in writing to Mrs X and Y for the identified faults
  • pay Mrs X £500 to recognise the significant distress, time and trouble and frustration she was caused in having to repeatedly pursue the 2019 annual review matter with the Council. This is to also acknowledge Mrs X missed the opportunity to appeal due to the non-completion of the 2019 annual review process
  • pay Mrs X £300 to recognise the avoidable frustration and uncertainty caused by the delay in issuing the Education, Health and Care Plan following the annual review meeting in 2020
  • pay Y £3200 to acknowledge she did not receive suitable provision for longer than necessary. This remedy covers the 16 months period (September 2019 to January 2021) at £200 per month in line with our guidance on remedies
  • provide the Ombudsman with evidence of the internal processes the Council has in place to monitor the progress of its Education, Health and Care Plan annual review process timeliness.
  1. Within two months of the final decision:
    • provide details of the action it has taken to address delays in processing annual reviews to ensure such delays do not continue to occur and say how this has been implemented
  • undertake an audit of Education, Health and Care Plan annual reviews of the 30 cases identified by Ofsted following its recent inspection of the Council’s SEND services as part of the monitoring process. This is to ensure the Council is carrying out annual reviews in a timely manner, issuing decision notices and completing Education, Health and Care Plan annual review processes in accordance with statutory guidelines
  • report the Education, Health and Care Plan review audit finding with the Ombudsman.

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Final decision

  1. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated the matter stated in paragraphs 5 and 63 above.

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Investigator's decision on behalf of the Ombudsman

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