Summary: Ms X complained the Council failed to amend and issue a draft and final Education, Health and Care plan for her son, Z, in line with the statutory timescales following an annual review in January 2021. Ms X further complained the Council failed to provide Z with the provision in his plan for 15 months and an appropriate full-time education for 5 months. There was fault in the Council delaying amending and issuing a final plan, and in providing some of the specified provision. There was no fault in how the Council considered the appropriateness of Z’s education. The Council agreed to pay Z £650 to recognise the injustice caused to him by the missed provision.

The complaint

1. Ms X complained the Council failed to amend and issue a draft and final Education, Health and Care Plan for her son, Z, in line with the statutory timescales following an annual review in January 2021. Ms X further complained the Council failed to provide Z with the provision within his plan from September 2020 to December 2021, and an appropriate full-time education from July 2021 to December 2021. Ms X says Z has missed out on education because of the Council’s failings. She said it caused Z, and herself distress and uncertainty and has impacted her ability to work.

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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. 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)
4. 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.
5. 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)
6. 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

7. I read the documents provided by Ms X and discussed the complaint with her on the telephone.
8. I read the documents the Council provided in response to my enquiries.
9. Ms 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

Education, Health and Care (EHC) Plan

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. The council is responsible for making sure arrangements specified in the EHC plan are put in place.
11. The statutory process for assessing, producing, and reviewing EHC plans is set out in the special education needs and disability (SEND) code of practice. It states the timescales for each part of the process which councils must keep to.
12. Once there is an EHC plan in place the council must review it at least every 12 months. The annual review must consider the young person’s progress towards their goals and whether the plan still meets their needs. If a young person moves to a council area with an existing EHC plan, the plan transfers on the day of the move. The new council must review the EHC plan within 12 months of when the plan was made or within 3 months of the transfer, whichever is the later.
13. Councils must decide whether to maintain the EHC plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting and inform the young person and parent of their decision. The decision notice must also provide the parent’s appeal rights against the decision made.
14. Where a council proposes to amend an EHC plan, the law says it must send the parent a copy of the proposed amendments for them to comment on. Following comments from the parent, the council must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent them the proposed amendments.
15. When a final EHC plan or an amended plan is issued the parent has the right to appeal to the SEND tribunal. The tribunal can consider decisions made within the EHC plan including the educational setting named in the plan. The parent has two months from the date of the plan to lodge their appeal.
16. Section F sets out the special provision the child needs. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative provision

17. The Education Act 1996 says councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. We refer to this as section 19 or alternative education provision.

What happened

18. In July 2020 Z moved to the Council’s area. He had an EHC plan issued by the previous Council dated February 2020. It set out the provision he needed to meet his educational goals. It did not name a school but named the type as a mainstream secondary school. It stated Z had significant social, emotional and behavioural difficulties.
19. The Council consulted with two mainstream schools. Both stated they could not meet Z’s needs. The Council directed School B to admit Z from September 2020 as that was Ms X’s preference.
20. Z’s EHC plan stated he needed a variety of support. One element was a package of support for 10 hours a week. This specified support with developing social skills to include working with a variety of children. It also stated he needed weekly one-to-one time with a Counsellor to support his social, emotional and mental health difficulties.
21. In January 2021 School B held an annual review meeting for Z’s EHC plan. The record shows the Council did not attend. The review decided Z’s EHC plan needed updating. School B said it could not meet Z’s needs and he was at risk of exclusion. It said Z needed an alternative package with extra funding.
22. School B sent the review paperwork to the Council in February. School B also told the Council that Z had received a further exclusion and was at significant risk of permanent exclusion. School B sought funding for a two day a week alternative provision for Z alongside his school timetable.
23. In April Ms X emailed the Council and stated it was not providing Z the provision set out in his EHC plan. She stated he was being excluded and the Council had not provided its decision from the annual review from January 2021.
24. In May School B contacted the Council again and reiterated its request for extra funding to meet Z’s needs, and its concerns for Z’s education. The Council reviewed the annual review paperwork which School B sent it in February. It said it was unlikely to agree the funding based on the information School B provided in the annual review paperwork.
25. Ms X complained to the Council in May. She stated she had not received the Council’s decision to maintain, amend or cease Z’s EHC plan since the annual review in January 2021. She also said she had made several attempts to contact the SEN casework team without any response.
26. In June the Council responded to Ms X’s complaint. It accepted it had not provided Ms X with its decision on Z’s EHC plan in line with the statutory guidance. It also said it had not responded to Ms X communications. The Council apologised to Ms X for both matters and stated it would issue Z’s draft amended EHC plan at the beginning of June.
27. Ms X was dissatisfied with the Council response and complained again. She stated the Council knew Z was at risk of exclusion but did not act to prevent that happening.
28. The Council issued Ms X a draft amended EHC plan. The plan set out Z needed provision very similar to that in his previous EHC plan including the package with one-to-one time with a school counsellor.
29. At the end of June School B held a further annual review meeting after the Educational Psychologist provided an updated report for Z. A Council officer attended the review meeting. The record of the meeting shows School B and Ms X had concerns about Z’s educational provision and exclusions. School B stated it could not meet Z’s needs and it was seeking a change of placement. It stated it had not provided counselling to Z. School B said if there was a further incident involving Z in school, it would not allow him to be educated on site due to the health and safety risk he posed.
30. In July School B sent the Council the annual review paperwork. School B said due to a further incident involving Z, it could no longer safely educate Z on site. School B told the Council it had arranged one-to-one tutoring for Z off site for 18 hours a week and pastoral support from school staff. Z received the tutoring during the last week of term.
31. In August the Council responded to Ms X’s complaint at stage 2. It said the Council became aware of Z’s risk of exclusion at the end of May after which school arranged an interim annual review meeting. The Council stated School B arranged to provide Z with appropriate education off site which was not an exclusion. It did not uphold Ms X’s complaint.
32. In August the Council sent Ms X a draft amended EHC plan. The draft no longer stated Z should spend time with a school counsellor. It stated he needed support from people specifically trained in emotional development and emotional trauma.
33. The Council held a multi-agency meeting and decided Z’s needs would be better met at a special school. The Council asked School B to provide an alternative provision for Z while it found a new placement for him.
34. During August and September School B arranged and coordinated the alternative provision. School B arranged for Z to receive 12 hours of one-to-one tutoring, four hours of therapeutic support and five hours of alternative provision to encourage social skills from September 2021.
35. In September the Council met with Ms X and School B to review Z’s temporary alternative provision. The Council confirmed it was satisfied the provision School B was offering met Z’s needs.
36. In September 2021 Ms X provided the Council with her response to the draft amended EHC plan. Between September and November the Council consulted with other providers about Z’s provision. It could not identify a suitable school.
37. In December the Council issued a final amended EHC plan. The plan specified a type of school rather than a named school. The Council told Ms X of her right to appeal to the tribunal if she disagreed with the provision or type of school named on the plan.
38. In response to my enquiries the Council stated it delayed in issuing the final amended EHC plan after the interim review in June as it was awaiting Ms X’s comments on the draft plan. Following that it was consulting with schools to name on the EHC plan.
39. The Council stated in March 2021 it recruited four extra officers to deal with annual reviews dating between September 2020 and June 2021.

My findings

40. Following the annual review in January 2021 the Council failed to issue Ms X with a notice explaining its decision to amend Z’s EHC plan. The Council then delayed issuing a draft plan until June. The Council decided to hold another annual review and again delayed issuing a further draft plan until August. It delayed issuing the final amended plan until December 2021. All of this was fault and not in line with statutory timescales. It meant Z did not have an up-to-date plan for ten months. It caused both Z and Ms X distress and uncertainty and meant Z remained in a placement which had stated could not meet his needs.
41. School B told the Council in February 2021 that it could not meet Z’s needs and he was at risk of permanent exclusion. When the Council issued the final amended plan it specified Z needed a special school to meet his needs. The delay in consulting for a new placement contributed to Z staying in an unsuitable placement for longer than necessary. This caused Ms X and Z distress and uncertainty.
42. Z was entitled to a package of support including one-to-one time with a counsellor between September 2020 and December 2021. Although School B did provide significant support for Z he did not receive that element of his provision for the time he attended School B or while receiving alternative provision. The Council was aware of this because School B told it. There is no evidence the Council put measures in place to rectify the matter until Z was directed to be educated off site.
43. In September 2021 School B arranged for Z to receive four hours of therapeutic support a week, however Z’s EHC Plan in place at the time still showed Z was entitled to one-to-one time with a school counsellor. The failure to provide counselling was fault and meant that Z missed 51 sessions with a counsellor. The failure to provide Z with the provision in line with his EHC plan was fault and meant he lost the opportunity to receive the support he was entitled to. This caused Ms X and Z uncertainty about whether the counselling sessions may have helped Z to settle at School B more successfully.
44. School B directed Z to be educated off site in July 2021 due to incidents on school premises. It arranged for Z to have one-to-one tutoring for the final week of term in July 2021 and told the Council about it. School B proposed a package of education for Z beginning in September 2021. The Council reviewed this package in September 2021 and decided it was suitable to meet Z’s needs until it found a new placement. It was aware the package was less than 25 hours. Z received 12 hours of one-to-one tutoring, four hours of therapeutic support and five hours of outdoor skills to support his social development. There is no evidence showing the provision was unsuitable. There was no fault in the way the Council considered the education Z was provided from July to December 2021.

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Agreed action

45. Within one month of this decision the Council will:
• pay Ms X £200 to recognise the injustice caused by the delay in issuing Z’s final amended plan;
• pay Ms X £650 to recognise the injustice caused to Z by the missed counselling sessions, Ms X should use this as she sees fit for Z’s educational benefit; and
• remind relevant staff of the importance of adhering to statutory timescales when reviewing EHC plans, even where there is a delay in the consultation process.

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Final decision

46. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman