Summary: Mrs X complained about delays and failure to follow the correct process in reviewing her daughter’s EHC plan. She also complained the Council failed to secure alternative education including the provision from her daughter’s EHC plan when she was no longer able to attend school. The delays and failings in the EHC process and in issuing a final EHC plan amount to fault. As does the Council’s failure to provide alternative educational provision or ensure Y received the provision specified in her EHC plan since March 2021. These faults have caused Mrs X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council failed to:

• review her daughter’s Education Health and Care (EHC) plan in line with the statutory timelines;
• put in place the Special Educational Needs provision named in section F of the EHC plan;
• put alternative provision in place when Mrs X’s daughter stopped attending school in March 2021; and
• properly consider her corporate complaint when she raised concerns about the EHC plan review process.

2. Mrs X says that as a result her daughter was not supported by professionals as she should have been and missed out on education and therapies she was entitled to. This negatively impacted Mrs X and her daughter.
3. Mrs X also complains she incurred fees for consultations with an Occupational Therapist who attended the EHC plan annual review and collated information for a proposed package of care. Mrs X would like the Council to reimburse these costs

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• Mrs 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

Special Educational Needs

8. 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. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Annual reviews

9. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the EHC plan. Schools are responsible for convening a review. Paragraph 9.173 of the SEND Code of Practice says councils and schools must cooperate to ensure a review takes place. This includes attending the review when requested to do so. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan.

EHC plan timescales

10. Within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is; amend the plan; or cease to maintain the plan. It must then tell the child's parent and the school its decision.
11. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
12. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.

Educational provision

13. The Council has a duty to “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
15. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. The Local Government Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.

What happened here

17. Mrs X’s daughter Y has an Education Health and Care (EHC) plan. In December 2020, following a tribunal decision the Council issued an amended plan naming School 1.
18. Y had difficulties in transitioning to School 1 and by March 2021 was unable/ unwilling to attend. In May 2021 a council officer confirmed it would be appropriate to carry out an annual review and that Mrs X could request a review at any time.
19. School 1 arranged a review meeting for 16 June 2021. The minutes of this meeting state it was an interim review meeting called at Mrs X’s request to discuss how to move forward with the placement, assess Y’s increasing needs and plan a successful transition. Y had been on the roll at School 1 since January 2021 but had only attended the site six times during the Spring term.
20. Mrs X stated the transition had not been effective and asked for a sensory approach going forward, involving Ms Z, an occupational therapist (OT) that Y had work worked with in the past and trusted. Follow up actions from this meeting include Ms Z beginning work with Y and contact between Ms Z and the school and Council to discuss transition proposals.
21. In early July 2021 the Council advised Mrs X it had asked the medical education team to offer Y tuition pending the annual review. It stated the medical education team would link in with School 1 to ensure appropriate learning opportunities were in place alongside the work the school was sending home. The medical education team would also support Y with reintegration when she was able to return to school.
22. Mrs X declined the offer of tuition as she did not feel home tuition was appropriate when they were working on a transition into a specialist school. She asserted specialist professionals from School 1 needed to work on building up secure and continuous relationships with Y. Mrs X also asserted that the first person to work with Y should be Ms Z. The EHC plan relied heavily on OT involvement and Ms Z could then prioritise the introduction of staff from School 1.
23. Mrs X suggested the medical education coordinator attend the next child in need meeting to assess whether tuition would be the right approach. Mrs X also asked the Council to confirm by the next meeting whether it would fund Ms Z to work with Y.
24. The Council agreed to consider the matter further at the review meeting but noted there had not been an updated OT assessment or new information since the tribunal decision. It was not therefore in a position to agree any alternative to the provision directed by the tribunal. As this provision was to be delivered by the school, the Council considered it crucial the school staff lead on any reintegration.
25. In addition the Council noted School 1 had tried to offer Y education remotely or online but this had been unsuccessful and Y had been unable to access this provision. It considered the medical education service, working with the school would be well placed to support Y.
26. In August 2021 Mrs X complained the Council had failed to follow the correct procedure for either an annual or an interim review. The Council’s response noted that the minutes state the meeting was an interim review. It was not arranged or convened in line with the requirements of a statutory review and had not been recorded or submitted as such by School 1. The Council stated the minutes did not indicate any additional significant change of needs or provision, so whilst the Council would retain the minutes it would not take any further action.
27. The Council did however note that it was more than 12 months since the original EHC plan and an annual review should have been held by 3 March 2021. It apologised this had not taken place and confirmed it had asked School 1 to arrange an annual review.
28. Mrs X was not satisfied by the Council’s response and asked to escalate her complaint to stage 2 of the complaints procedure. The Council refused to escalate her complaint but confirmed it would provide further clarity.
29. In its further response the Council again apologised the annual review was not held within the timescales of 3 March 2021, and for the confusion regarding the meeting on 16 June 2021. Although the meeting was not held as an annual review the Council acknowledged it should have written to Mrs X within four weeks of the meeting to confirm there would be no amendments to Y’s plan. It was now working on gathering evidence for the annual review at which point any changes would be made and an amended EHC plan issued.
30. The Council also noted it had not requested the OT report be collated. It had the assessment on file and did not need this again. The Council stated the collated information had already been considered by the Tribunal and was not new information. It would not therefore reimburse the cost.
31. School 1 arranged an annual review for 2 November 2021. On 22 October 2021 Mrs X raised concerns that the professionals working with Y had not been invited to the review and that she had not received any reports in advance of the review. She noted the school was required to provide notice of the review and copies of any advice and information obtained two weeks before the meeting date and questioned whether the meeting on 2 November would meet these requirements.
32. On 1 November 2021 School 1 confirmed it had not generated any paperwork as it had not seen Y in an education capacity since the review in June 2021. School 1 also confirmed it had invited all of the professionals Mrs X had requested but had not had confirmation on whether they would attend. Mrs X advised the school she was uncomfortable proceeding in these circumstances.
33. The records of the annual review state School 1 informed the meeting that it could no longer support Y’s needs as the residential cohort had changed. School 1 stated it had informed Mrs X of this before the summer holidays while Mrs X stated she was unaware of this until the meeting. Based on this information it was decided to postpone the meeting to give Mrs X the opportunity to look at other provision and discuss the matter with the Council. A follow up meeting was arranged for 30 November 2021. This meeting was then changed from an annual review to a placement meeting. The Council states it has no records of a meeting on 30 November 2021.
34. Following this meeting Mrs X provided additional information she wanted the panel to consider in relation to Y’s EHC plan. Mrs X did not consider an educational setting suitable for Y given her current mental health needs and asked that she be supported by a package of education other than at school (EOTAS) and a personal budget so that Mrs X could organise specialist support. The Council advised Mrs X that the panel had requested officers explore alternative options before considering EOTAS as the tribunal had ruled a school placement was appropriate.
35. Mrs X made a formal complaint about the arrangements and conduct of the meeting on 2 November 2021, asserting it had not followed the statutory requirements for an annual review. The Council responded on 30 November 2021. It was satisfied with the arrangements for the meeting on 2 November 2021 and did not uphold Mrs X’s complaint.
36. As Mrs X was unhappy with the Council’s response she asked for her complaint to be reviewed. The Council investigated Mrs X’s complaint at stage 2 of its complaints procedure. It upheld Mrs X’s complaints that the annual review on 2 November 2021 did not follow due process and did not go through or review the EHC plan. It noted the EHC plan remained without a full review.
37. The Council also partly upheld some of Mrs X’s concerns about specific failures in the annual review process including poor communication. But did not uphold all of her complaints. The Council did not accept it had failed to act in Y’s best interest or that delays in the annual review process had frustrated Mrs X’s right of appeal to the tribunal.
38. The Council issued a draft amended EHC plan in January 2022. Mrs X responded asserting an EOTAS package would offer Y the best support and setting out how this could be achieved and the support required. She also provided further professional reports. In March 2022 Mrs X chased the Council for the final amended plan and made a formal complaint about the delay in the annual review procedure. Mrs X also asked the Council to confirm when and which professionals School 1/ the Council had contacted to inform Y’s EHC plan reviews and for copies of any reports/ information used.
39. The Council responded to Mrs X’s complaint and apologised for the delay in sending the final amended plan. This was still not finalised but would be prioritised.
40. The Council also confirmed that the meeting on 30 November 2021 was changed to a placement meeting. And as the annual Review had already taken place, there was no need for other professionals to attend this meeting. Mrs X had submitted her views prior to the meeting but there were no additional reports from professionals in advance of the meeting.
41. Mrs X remains dissatisfied and has asked the Ombudsman to investigate her complaint. She states the Council failed to send her a copy of the current EHC plan before the meeting and did not review the plan at the meeting. Nor did to notify her within four weeks of the meeting of its decision on whether to maintain, change or cease the plan.
42. Since complaining to us the Council has issued a final EHC plan. It sent this to Mrs X in early May 2022 and confirmed it had considered Mrs X’s request for EOTAS and a personal budget. The Council wanted to undertake a re-assessment to get a full picture of Y’s needs. In addition the Council confirmed that as Y was no longer on the roll at School 1, the medical education service would contact Mrs X to arrange medical tuition.
43. In response to our enquires the Council states the annual review took place on 21 November 2021 and a draft EHC plan was then issued on 18 January 2022. It states Mrs X requested an extension to review and consider the draft as the family had COVID -19. Since then there have been several discussion regarding the proposed amendments, which are significant, and to explore Mrs X’s request for EOTAS.
44. The Council acknowledge it was in breach of the statutory timescales for issuing Y’s EHC plan. It states the delay in finalising the plan was due to the need for ongoing negotiation and consideration of additional information, including details of the proposed EOTAS package.
45. Y’s needs are complex and the Council states her entitlement to a broad, full time education and therapeutic offer remains squarely at the centre of the Council’s decision making. It has been acutely aware through this period that Y has not accessed full time education. The Council states it has done everything it believes is possible to deliver education to Y without putting her and her family into crisis. But acknowledges this has not been possible due to the complexities of this case.
46. The Council does not accept Mrs X was required to seek and have OT assessments or to pay for this. It states OT was available via School 1 and alternatives were offered such as the OT going to Mrs X’s home. The Council states the OT assessment was discussed with Mrs X at the Child in Need meeting in July 2021 and it was agreed not to be commissioned. The Council does not therefore accept it is responsible for repaying Mrs X these fees.
47. It notes that the majority of the provision is to be delivered in the classroom setting, or relates to staff training, which has taken place. The Council states small group work and approaches such as sensory daily communication are to be embedded in the school day and require the involvement of other children and school staff. It would be inappropriate to deliver this within the home setting.
48. In relation to SaLT, the Council states the therapist supporting Y considered direct work may be detrimental and did not advise this. A subsequent therapist tried to engage with Y but discharged this service in July 2022 as Y’s current presentation does not allow the therapist to see Y, so they are unable to support her to the full extent of her needs.
49. The Council states it will consider Mrs X’s request for a personal budget for therapies as part of the EOTAS package. It states the SEND Code of Guidance confirms parents have a right to request a personal budget when the Council has completed an EHC needs assessment and confirmed it will prepare a plan. Parents can also request a personal budget during a statutory review of an existing EHC plan. The Council states Mrs X did not request a personal budget during the annual review process, but only requested one in May 2022 after the Council had issued the final EHC plan.
50. In addition the Council states that as Y was placed in an independent school by the tribunal it would not have been appropriate for the Council to disaggregate funds to enable a personal budget, particularly as OT and SaLT provision was delivered in the school. As School 1 is unable to deliver Y’s education and has withdrawn the placement the Council is carrying out a statutory re assessment of Y’s needs and will consider a personal budget.
51. Mrs X states the Council has recently agreed to an EOTAS package but has not yet agreed to a personal budget or made any arrangements for the Speech and Language Therapy (SaLT) and OT provision specified in Y’s EHC plan.

Analysis

52. The Council has not reviewed Y’s EHC plan in accordance with the statutory timeframes which is fault. The Council acknowledges it should have carried out the annual review by March 2021 but did not do so. The Council states the annual review took place in November 2021, but it is clear this process was not completed properly. The annual review meeting was initially arranged for 2 November 2021 but this meeting was curtailed and rearranged for 30 November 2021. This meeting was then redesignated as a placement meeting.
53. The documentation shows that although the Council has now issued a final amended plan there has still not been a formal annual review meeting and the Council has not followed the annual review process or time frames.
54. It is concerning that when the Council issued the final EHC plan it confirmed it then wanted to carry out a reassessment to obtain in full picture to Y’s needs. Including SaLT, OT, and Educational Psychologist assessments, advice from Y’s health professionals and an update from social care. This suggests the latest EHC plan may not accurately reflect Y’s needs and the support she requires. Had the Council followed proper process this information could have been obtained as part of the annual review and used to inform the revised EHC plan.
55. 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 carry out an annual review and to meet the required timeframes here amounts to fault.
56. The law requires a council to arrange suitable education for a child it knows cannot attend school due to medical reasons. The Council was aware Y’s transition to School 1 had faltered and that she had been unable to attend at all from March 2021. Y has not received any educational provision or the SaLT and OT provision specified in her EHC plan since then.
57. It is clear that Y’s needs are complex and she requires a therapeutic approach to education that will not put Y or her family into crisis. The documentation shows School 1 offered to provide Y education remotely or online whilst working on her reintegration to the School. This was not successful as Y was unable to access this provision.
58. The Council then offered tuition via its medical education service, who would work with the school to support Y with reintegration when she was able to return to school. Mrs X declined this tuition as she did not consider it appropriate or beneficial to Y. There is no evidence the Council has considered or offered any other provision.
59. The Council states the SaLT and OT provision was available for Y at School 1 throughout and that it would not have been appropriate provide a personal budget to allow Mrs X to commission this support. I do not agree. An EHC plan is a legal document and there is a non-delegable duty on councils to secure the special educational provision in Section F of a Plan. There is no dispute this support was intended to be provided at School 1, but equally, it was clear to all Y was unable to access any provision at School 1 and alternative arrangements would be necessary to ensure Y received this provision.
60. I am also mindful of the fact School 1’s OT left in June 2021. The records show School 1 was recruiting for a new OT, but there are no records of when a new OT was in post. Nor is there a record of the school’s new OT attempting to engage with Y or that they were invited to or provided input for any meetings or the annual reviews.
61. There was also a change in Speech and Language Therapist. The Council’s records show it was several months before the new SaLT contacted Mrs X. The minutes of the meeting in November 2021 record that Mrs X asked for the new SaLT to be invited to future meetings and noted that she had not yet been contacted by the new SaLT. The minutes from April 2022 record the new SaLT would now contact Mrs X and plan to meet her to hopefully progress matters.
62. This does not support the Council’s view that therapies were on offer throughout or that therapists had oversight of any provision available/ offered to Y. The Council should therefore have made alternative arrangements to ensure Y received these therapies.
63. The Council was aware in November 2021 that School 1 would be unable to meet Y’s needs and alternative arrangements needed to be considered. The minutes of the annual review on 2 November 2021 state the meeting was ended to allow Mrs X to discuss other options with the Council. The Council states Mrs X did not request a personal budget until after it had issued the final ECH plan in May 2022. However the documentation shows Mrs X requested an EOTAS package and a personal budget to allow her to arrange specialist support following the placement meeting in November 2021.
64. The Council failure to ensure Y received a suitable education and the provision specified in her EHC plan since she was unable to attend school in March 2021 amounts to fault.
65. Having identified fault, I must consider whether this had caused Y and Mrs X an injustice. The Council’s failure to provide alternative provision after March 2021 meant Y has lost out on a suitable education and essential support for more than a full academic year. That is a significant injustice. Mrs X states Y has regressed, and her sensory needs have become so intense they significantly impact on her day-to-day life. Her speech and language abilities have also regressed to the point where her family cannot always understand her, and Y is frustrated by her inability to communicating effectively.
66. The delays and failings in the annual review process have compounded Y and Mrs X’s concerns and delayed her ability to exercise her right of appeal to the SEND tribunal.
67. I understand that there are ongoing discussions between Mrs X and the Council in relation to the EOTAS package and a personal budget and there is currently still no provision in place. As the Council has issued a final EHC plan and Mrs Y has a right of appeal we have limited jurisdiction to investigate this issue. The Ombudsman has no jurisdiction to investigate loss of education or fault during the period from the date the appeal right arises until any appeal is completed. This is the case even though the Tribunal has no power to provide remedy for the lost education. I am therefore unable to consider Mrs X’s ongoing concerns about Y’s missed education or provision since May 2022.
68. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
69. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
70. In determining an appropriate level we will take account of factors such as:
• The child’s SEN;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education.
71. Given Y’s age, the stage of her education and the education and support she missed I consider a payment of £400 a month would be appropriate.
72. Mrs X has provided invoices for the OT fees she has incurred in the OT attending the interim review meeting in June 2021 and in preparing details of a proposed package of care. The Council has refused to reimburse these costs as it states they were unnecessary and had not been agreed. However, the action points in the minutes of the meeting on 16 June 2021 include contact between the Council, school, and the OT to discuss transition proposals.
73. The Council did not implement the OT’s proposed plans, but it is clear their input was requested at the interim review meeting. In the circumstances I consider the Council should reimburse Mrs X these fees.

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Agreed action

74. The Council has agreed to apologise to Mrs X and Y for the delays and failings in the EHC process and in issuing a final EHC plan. And for the failure to provide alternative educational provision or ensure Y received the provision specified in her EHC plan since March 2021.
75. The Council has also agreed to pay
• £4,800 to Mrs X to be used for Y's educational benefit, to acknowledge the impact of the loss of education and therapies on Y between March 2021 and May 2022.
• £500 to Mrs X in recognition of the distress and anxiety she experienced and the time and trouble she was put to as a result of the Council’s failings.
• £500 to Y in recognition of the distress and uncertainty she experienced as a result of the Council’s failings.
• £517.50 in respect of the OT fees Mrs X has incurred.
76. The Council should take his action within one month of the final decision on this complaint.

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Final decision

77. The delays and failings in the EHC process and in issuing a final EHC plan amount to fault. As does the Council’s failure to provide alternative educational provision or ensure Y received the provision specified in her EHC plan since March 2021. These faults have caused Mrs X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman