Summary: The Council failed to complete Ms X’s son, Z’s, annual review or finalise his Education, Health and Care Plan (EHC Plan). The Council then delayed in consulting with Ms X’s preferred school and used an outdated version of Z’s EHC Plan to make its consultations. The Council also repeatedly failed to communicate important information to Ms X regarding her son’s education. In recognition of the uncertainty, time and trouble caused by these faults, the Council has agreed to pay Ms X £450 and urgently re-assess Z’s EHC Plan needs, where an assessment has not recently taken place.

What I have investigated

3. I have investigated the complaints above, covering the period March 2021 to March 2022.
4. Please see the end of this decision statement for what I have not investigated.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
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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How I considered this complaint

9. I considered the information provided by Ms X and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered comments made by Ms X and the Council on a draft decision before making this final decision.

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Law and guidance

SEND Tribunal

13. 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.

Education, Health and Care Plans (EHC Plans)

14. A young person with special educational needs may have an Education, Health and Care (EHC Plan). This sets out their needs and what arrangements should be made to meet them.
15. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available.
16. The EHC plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of school. 

Annual reviews of EHC Plans

17. Councils must review EHC Plans regularly, usually at least every 12 months.
18. Within four weeks of the annual review meeting the council must decide whether it proposes to keep the EHC Plan as it is, amend the Plan or cease to maintain it. At this point it must notify the child’s parent and the educational setting. The parent can appeal the council’s decision to amend the EHC Plan to the SEND Tribunal.

Finalising EHC Plans and right of appeal to Tribunal

19. The council should then issue the final amended EHC Plan within eight weeks of the draft amended Plan being issued.
20. In a final amended EHC Plan, Section I must state the name and type of school to be attended by the child or young person. These details must not be included in the draft EHC Plan, as the drafting stage is when parents can tell the council what school they want the child to go to.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. This right of appeal starts when the final amended Plan is issued. (Special Educational Needs and Disability Regulations 2014 and the SEND Code of Practice 2015)

Section 19 duty

22. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

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What I found

What happened

23. Z has autism and anxiety. These conditions have affected his ability to attend his mainstream school, School A, full-time since 2019. However, he has remained on-roll there.
24. Z has not been able to sit his GCSEs due to the amount of school he has missed.
25. In May 2021, when the Council began its annual review of Z’s EHC Plan, he was still on roll at School A.
26. Through School A, according to his EHC Plan, Z should have been accessing a part-time programme of home-based, online learning and wellbeing support sessions with the school’s SEN officer. However due to Z’s anxiety he often accessed these sessions for fewer hours than agreed, if at all.
27. A few months before the annual review meeting, Z had also started receiving some part-time support from the Council’s mental health and autism service and the Council’s medical absence service.
28. During the annual review meeting, Ms X said she wanted the Council to consult a particular specialist school for Z, as she said his largely home-based learning was proving detrimental to his mental health and wellbeing.
29. In mid-June 2021, the Council referred Ms X’s request to name the specialist school to a panel to decide whether it was suitable. It is not clear from the records what the outcome of this meeting was.
30. The Council then did not inform Ms X of the outcome of the panel meeting. It also did not decide whether to amend, maintain or cease the Plan, or take any steps to finalise the Plan.
31. On 8 September 2021 Ms X complained to the Council. She said she had been trying unsuccessfully to find out from the Council whether it had consulted her preferred specialist school. She complained it had not updated on her son’s education since the annual review.
32. On 12 October 2021, more than five months after the annual review meeting, the Council consulted Ms X’s preferred specialist school. The school responded on 18 October to say it could not meet Z’s needs.
33. The Council responded to Ms X’s complaint on 21 October 2021. It upheld her complaint and apologised that its communication with Ms X had been poor. It said it had consulted the specialist school. However the Council did not inform her of the school’s response.
34. On 2 December 2021 the Council consulted an agency providing one-to-one tutoring to see if it could provide some education for Z.
35. On 8 December 2021 Ms X complained at the second stage of the Council’s complaints process. She said her son was still without suitable education, she had not been updated regarding the outcome of the Council’s consultation with her preferred specialist school, and the Council’s communication with her had not improved.
36. On 17 January 2022 the Council responded. It said it could see that its SEND team had not kept Ms X informed of the actions it was taking regarding Z’s education. As a remedy it said a senior member of staff would keep in contact with Ms X on a fortnightly basis.
37. The Council said Z was discussed at a recent ‘solution-focussed case review’ meeting and that it would update Ms X of the outcome of this meeting. It also said a referral had been made for one-to-one tutoring in December 2021 and she would be informed of the outcome of that referral.
38. The Council did not inform Ms X of the outcome of the solution focussed case review meeting or keep in contact with her on a fortnightly basis as promised. The tutoring service responded to Ms X directly to say it could not meet Z’s needs.
39. In March 2022, Ms X complained to the Ombudsman.
40. The Council told me it was satisfied that the reduced education package Z accessed in the year when he did not have an up-to-date EHC Plan was suitable for him, as he could only manage part-time education. However it said it regretted failing to carry out the annual review and EHC Plan processes.
41. The Council sent us an excerpt of a report by its mental health and autism service. Z had been accessing part-time support from this service for two months prior to his annual review. This service’s report recommended that Z be introduced gradually back into education to break the cycle of avoidance. The Council said the limited hours Z accessed during this complaint period was in line with the advice it received from mental health professionals.
42. This report was not referred to in Z’s annual review as the Council took no steps to complete the annual review process or produce a final EHC Plan. This meant Ms X was unable to use her right of appeal with the SEND Tribunal if she disagreed with the Council’s decision making.

Similar recent cases and remedies

43. This year the Ombudsman has found fault with this Council several times for failure to follow annual review processes and keep to statutory timescales for complaints covering a similar complaint period to this one.
44. In response to our recommendations from these cases, the Council reminded its SEND staff in February and May 2022 of the importance of meeting the statutory timescales for reviewing EHC Plans. It also showed us it had carried out further training for its staff in relation to its statutory duties around annual reviews.

My findings

Failure to update Z’s EHC Plan

45. Following Z’s annual review meeting, the Council failed to decide whether to amend, maintain or cease his EHC Plan. This was fault.
46. The Council then did not finalise Z’s EHC Plan, meaning he was without an up-to-date EHC Plan when the Council used it to consult schools. It also meant Ms X could not use her right of appeal to the SEND Tribunal. This was fault.
47. This fault also meant the Council consulted with schools using an out-of-date plan, meaning they did not have the right information about Z’s needs.

Failure to promptly consult Ms X’s preferred school

48. The Council consulted Ms X’s preferred school, School B, several months after the annual review and more than a month into the next school term, and only after Ms X had made a complaint. This delay was fault.

Failure to communicate with Ms X

49. The Council repeatedly failed to communicate important updates to Ms X, including the outcome of panels and school consultations. The Council then failed to communicate with Ms X fortnightly despite promising to do so as a remedy for its earlier poor communication. This was fault.

Injustice caused by these faults

50. We cannot say, even on the balance of probabilities, whether but for the faults above, Z would have had better educational outcomes than he did between May 2021 and March 2022. This is due to his anxiety significantly affecting his ability to access education during this complaint period.
51. However, Ms X was caused significant uncertainty about whether more could have been done for Z. I have recommended an apology and financial remedy in recognition of this uncertainty to be used for Z’s benefit.
52. Ms X was also repeatedly put to time and trouble in chasing responses from the Council, including after it delayed consulting her preferred school. I have recommended a financial remedy to also reflect this.
53. The Council has agreed and carried out service improvement actions likely to prevent reoccurrence of these faults in relation to other recent Ombudsman investigations. I have therefore not made an additional service improvement recommendation.

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Agreed action

54. Within one month of the date of the final decision, the Council has agreed to:
• apologise to Ms X and Z for the faults identified in this case;
• as a matter of urgency, carry out a re-assessment of Z’s Education, Health and Care needs if one has not already been carried out for him in the past year. This is to reflect the lack of review of his EHC Plan during an important year for his GCSEs and where his mental health deteriorated substantially; and
• pay Ms X £450 to reflect the uncertainty and time and trouble she was put to by the Council’s faults in this case.

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Final decision

55. I have completed my investigation. I have found fault leading to injustice and recommended a financial remedy and service improvements.

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Parts of the complaint that I did not investigate

56. I have not investigated any events that occurred before March 2021 as these would have happened more than a year before Ms X complained to us and a good reason was not provided for us to look back further than this.

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Investigator's decision on behalf of the Ombudsman