Summary: Ms B complained about delays reviewing her son’s education, health and care plan, failure to follow the special educational needs code of practice, failure to provide education to her son, failure to properly consider her request for education other than at school and failure to consider her complaint properly. The Council delayed completing the review of the education, health and care plan, failed to act on Ms B’s notification that she no longer wanted to home educate her son, failed to identify a request for a reassessment and failed to consider her complaint properly. There is no fault in how the Council considered the request for education other than at school. An apology, payment to Ms B, introduction of a process for identifying when reviews of education, health and care plans are due and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
• delayed completing an annual review of her son’s education, health and care plan (EHCP);
• failed to seek a report from an educational psychologist as part of the review;
• delayed producing a draft and final EHCP following the review;
• failed to provide education to her son between September 2021 and March 2022 and wrongly advised her to continue to home educate her son when she had made clear she no longer wished to do that;
• failed to provide her son with sufficient education from March 2022;
• failed to properly consider her request for education other than at school;
• failed to provide her with copies of policies she requested;
• failed to identify what happened when her son’s EHCP was edited on the hub without a review or her input in February 2020;
• failed to tell her when her caseworker left;
• gave her wrong information about how to request a reassessment and failed to properly consider that request; and
• failed to properly consider her complaint or provide appropriate remedies.
2. Ms B says failures by the Council resulted in her son missing out on education provision and provision for his special educational needs (SEN) and led to her having to fund his education.

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The Ombudsman’s role and powers

3. 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)
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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

What should have happened

10. A child with SEN may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them.
11. The Government has issued the SEN code of practice (code of practice). This says EHCPs must be reviewed by the local authority as a minimum every 12 months. The first review must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHCP or previous review).
12. The code of practice says where the review is for a child or young person that does not attend a school or other institution the local authority must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHCP and should refer to any difference between the local authority’s recommendations, and those of others attending the meeting.
13. The code of practice says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person. If the plan needs to be amended, the local authority should start the process of amendment without delay.
14. The code of practice says where the local authority proposes to amend an EHCP 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. The child’s parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes.
15. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
16. The code of practice says local authorities must conduct a re-assessment of a child or young person’s EHCP if a request is made by the child’s parent or the young person. A local authority can refuse a request for a re-assessment if less than 6 months have passed since the last EHC needs assessment was conducted. A local authority may also decide to refuse a request for re-assessment if it thinks that a further EHC needs assessment is not necessary, for example because it considers the child or young person’s needs have not changed significantly.
17. The code of practice says the local authority must notify the child’s parent or the young person of its decision as to whether it will undertake a re-assessment within 15 calendar days of receiving the request to re-assess. If the local authority decides not to re-assess, it must notify the child’s parent or the young person of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal and the availability of information, advice and support and disagreement resolution services.

What happened

18. Ms B’s son has SEN and the Council issued an EHCP in February 2018. Section I of that EHCP said Ms B’s son required a generic special school but the parents had made their own arrangements to electively home educate their son.
19. In May 2021 when discussing with the Council the review of the EHCP Ms B asked the Council to commission a new educational psychology, speech and language therapy and occupational therapy/sensory assessment for her son due to the delay carrying out the review and the fact her son was now in year 9 and the Council needed to plan for his adulthood. Ms B referred to the code of practice comments on reassessments. Ms B said if an entire reassessment of the plan was necessary, rather than just a review, she would proceed in that direction as she considered some significant changes were required to her son’s plan to assist him in his transition to adulthood. In response the Council told Ms B she could request a further assessment as part of the annual review process.
20. Ms B contacted the Council in August 2021 to ask it for a copy of its policy on education other than at school. The Council told Ms B it did not have such a policy and directed her to the local offer.
21. The Council held a review meeting for the EHCP on 3 September. Following that meeting the Council sent Ms B a copy of the annual review paperwork for her to amend. Ms B provided the Council with some proposed amendments and said she could no longer home educate her son. The Council advised Ms B to continue to home educate her son until the Council had reached a decision on her request for education other than at school.
22. The Council continued to correspond with Ms B about the annual review paperwork in September and October. During those discussions Ms B asked for some changes.
23. On 15 October the Council’s decision-making group considered Ms B’s request for education other than at school and declined it. The Council told Ms B about that decision on 27 October.
24. Ms B raised concerns about the decision not to agree education other than at school and reminded the Council it had not put in place any alternative provision for her son.
25. Ms B chased the Council on 21 November. In response the Council agreed to consult suitable special schools if Ms B no longer wanted to home educate her son. Ms B chased the Council again for alternative provision and for a copy of the EHCP later in November. In response the Council directed Ms B to the hub where it had made the draft EHCP available. Ms B asked for more time to provide comments, which the Council agreed. Ms B provided her comments on 19 December.
26. On 2 January 2022 Ms B provided further comments on the EHCP. Ms B also reminded the Council she was no longer home educating her son. The Council asked Ms B whether she had told the elective home education service that she was no longer home educating her son. Ms B told the Council she did not know she was supposed to do that as she had told the key worker and expected it to be actioned based on that.
27. On 13 January the Council considered Ms B’s request for education other than at school and declined it as it considered the appropriate way forward was to consult with schools.
28. On 24 January the Council issued the final EHCP.
29. In February the Council agreed to provide 1.5 hours tuition three times a week while it sought a suitable school placement. That tuition began on 28 March and was intended to finish in May. The Council subsequently extended the provision as it had been unable to identify a suitable school placement.
30. Following intervention from Ms B’s solicitor the Council increased the number of hours tuition to 10 hours per week from 22 June.
31. I understand the Council has been unable to identify a suitable school for Ms B’s son. He is therefore to continue to receive 10 hours provision per week as education other than at school until June 2023. This is funded through a personal budget from October 2022 following Ms B’s appeal to tribunal. The Council has also carried out a reassessment of the EHCP, which has included getting an up-to-date educational psychology assessment.

Analysis

32. Ms B says the Council delayed completing an annual review of her son’s EHCP. The code of practice referred to in paragraph 11 makes clear the Council should complete a review of an EHCP every 12 months. In this case the Council issued Ms B’s son’s EHCP in February 2018. The Council should therefore have completed a review in February 2019. The Council failed to do that and that is fault. The Council also failed to carry out a review in 2020, which is also fault.
33. I cannot speculate about whether the additional provision in the 2022 plan would have been put in place had the review taken place in either 2020 or early 2021. In any event, I see no reason why Ms B could not have complained to the Ombudsman at the time. As the Ombudsman will not normally consider complaints about matters that took place more than twelve months ago and as I cannot reach a safe conclusion about what, if any, additional provision would have been made if an earlier review had taken place I do not make a recommendation for a personal remedy for Ms B here. However, I recommended the Council put in place a process for tracking when annual reviews of EHCP’s are due for children who are not attending school to ensure a similar problem does not occur in future. The Council has agreed to my recommendation.
34. Ms B says the Council delayed producing a draft and final EHCP in 2021. The Council accepts there were delays in this case and says this was because it was working with Ms B to agree the discussions from the annual review and there were also changes of caseworker. I am concerned though that the review was not arranged until September 2021 given it was already overdue when the first caseworker left in May 2021. Delay arranging the review in 2021 is fault.
35. I recognise the Council was attempting to work with Ms B to resolve any differences of opinion before beginning the EHCP amendment process after the review meeting. However, the code of practice is clear the Council has timescales to adhere to when completing an annual review. The Council failed to comply with those timescales in this case. That is fault and meant Ms B’s son missed out on additional provision, particularly around speech and language therapy and occupational therapy, for longer than he should have. I am also satisfied Ms B’s right of appeal was delayed as a result of the failure to comply with the statutory guidelines. I recommended the Council apologise to Ms B and remind officers of the need to ensure that attempting to work with parents around amendments to an EHCP should not result in the timescales in the code of practice not being adhered to. I also recommended the Council apologise and pay Ms B £600 to reflect her delayed appeal rights and the delay putting in place further provision in 2022 due to the delay completing the final plan. The Council has agreed to my recommendations.
36. Ms B says the Council failed to provide education to her son between September 2021, when she advised that she no longer wanted to home educate him, and March 2022 when the Council put in place some limited provision. Ms B is also concerned the Council told her to continue to home educate her son when she made it clear she no longer wished to do that in September 2021.
37. In terms of the advice to continue home educating her son in September 2021 I am satisfied the Council recommended that as Ms B had requested education other than at school and that request needed to be considered by the decision-making body. The decision on that was then made in October 2021. Given Ms B had requested education other than at school and the Council needed to consider that request I do not criticise it for advising Ms B to initially continue to home educate her son, pending that decision. I do not consider that fault. I also consider it unlikely the Council could have put alternative provision in place by October 2021, given the short timescale involved.
38. I am concerned though with what happened after October 2021. By that point the Council had turned down education other than at school and knew Ms B no longer wanted to home educate her son. In those circumstances I would have expected the Council to begin looking for a specialist school for Ms B’s son and to consider putting in place temporary provision while a suitable placement was secured. I have seen no evidence the Council began looking for a specialist school until February 2022 and there is no evidence the Council put in place any temporary provision until March 2022. I recognise the Council says this is because Ms B did not contact the elective home education department to tell it she was no longer home educating her son until January 2022. However, Ms B had made clear in September 2021 she could not home educate her son any longer. Following the decision to refuse education other than at school Ms B had also reminded the Council her son needed interim education. I am therefore satisfied the Council should have taken action to seek a specialist school placement for Ms B’s son or arrange alternative education for him in October 2021. Failure to do that until March 2022 is fault.
39. Ms B has confirmed though she continued to provide some home education to her son in the absence of any other alternative between September 2021 and March 2022. So, while I consider the Council at fault for not putting in place alternative provision from October 2021 I do not consider it likely Ms B’s son missed out on education during that period. In those circumstances I recommended the Council pay Ms B £500 to reflect her time and trouble pursuing the complaint and the impact of having to continue to home educate her son when she had told the Council she no longer felt able to do so. Ms B has also provided evidence of some additional costs she incurred which relate to provision for her son between September 2021 and July 2022. I recommended the Council pay Ms B an additional £1,200 to reflect the costs she is able to provide evidence for with an additional amount as an estimate for the costs she cannot provide receipts for. I made that recommendation because I am satisfied Ms B would not have had to fund those elements if the Council had acted as it should have done. The Council has agreed to my recommendation.
40. Ms B says the Council failed to provide her son with sufficient education from March 2022 onwards. The evidence I have seen satisfies me the Council at first put in place 1.5 hours tuition for Ms B’s son three days a week. I have seen nothing in the documentary evidence to suggest Ms B told the Council at the time this was not a sufficient amount of education. Given that, plus the fact that when a child begins alternative tuition it is usually a reduced package at first, slowly building up, I do not criticise the Council for putting in place 4.5 hours of tuition initially. The evidence I have seen satisfies me the Council put that in place until May 2022 while it was seeking a suitable school for Ms B’s son. I would have expected the Council to review the amount of provision in place at the end of that period and I have seen no evidence the Council did so. As a result, provision to Ms B’s son was not increased until Ms B’s solicitor put in a pre-action protocol letter in June 2022. Failure to review the provision and increase it between May and June 2022 is fault which meant Ms B’s son missed out on an additional 5.5 hours provision for one month. As remedy for that I recommended the Council apologise to Ms B and pay her £200. The Council has agreed to my recommendation.
41. Ms B says the Council failed to properly consider her request for an education other than at school package for her son. Ms B also says the Council did not have all the relevant information before it refused her request as the panel that considered her request did not have access to an up-to-date EHCP for her son.
42. I am satisfied the Council considered Ms B’s request for education other than at school twice. On the first occasion in October 2021 Ms B is right to say the panel did not have an up-to-date EHCP as the process of amendment had not yet begun. However, I am satisfied the panel had access to the annual review paperwork, Ms B’s explanation on why she considered education other than at school appropriate for her son and a copy of the speech and language therapy report which referred to the request for education other than at school. I therefore could not say the panel reached its decision without considering the evidence available. I appreciate Ms B believes the Council should have agreed to provide education other than at school. However, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. Given the information available to the panel in October 2021 and as a further panel in January 2022 also refused to provide education other than at school, I do not consider there is fault in how the Council reached its decisions.
43. In reaching that view I understand why Ms B would be concerned about whether the Council properly considered her request in 2021 given the paperwork for the decision refers to it being taken in September 2021. That was before the relevant reports were available. There is no evidence though the decision-making panel considered Ms B’s request for education other than at school until 15 October 2021. I therefore consider it likely, on the balance of probability, the wrong date is recorded on the Council’s paperwork. I do not consider this undermines the assessment undertaken.
44. I recognise the Council has now agreed to put in place education other than at school for Ms B’s son. I am satisfied this is because the Council has been unable to identify a suitable school placement for him. I do not consider that undermines the decision-making process carried out by the Council in October 2021 and January 2022 as at those points the Council had not consulted with schools and therefore did not know it would not be able to find a suitable school. So, I have no grounds to criticise the Council.
45. Ms B says the Council failed to provide her with copies of policies she repeatedly asked for. Ms B is referring here to the personal budgets policy and policy on education other than at school. I have seen no evidence the Council provided Ms B with information about how to access the personal budgets policy until it responded to her complaint in April 2022. Delay providing that information is fault. An apology is satisfactory remedy. For the education other than at school policy though, there is no evidence the Council has a specific policy. I therefore have no grounds to criticise the Council in relation to that point.
46. Ms B says the Council failed to identify what had happened when her son’s EHCP was edited on the hub in February 2020 without a review or any input from her. Having considered the Council’s response I note the Council believes no editing was undertaken in February 2020 and instead this was likely the date the EHCP was uploaded to the hub. Given Ms B has not identified any changes to the EHCP as a result of any activity in February 2020 and as I have seen no evidence a different EHCP was issued in 2020 I do not consider it likely there was significant activity on Ms B’s son’s EHCP on that date. I appreciate Ms B would like an explanation of why the hub is showing something was done on that date. However, I cannot criticise the Council when there is no evidence changes have been made.
47. Ms B says the Council failed to tell her when her caseworker left in May 2021. Having considered the documentary evidence I note Ms B was emailing her caseworker in the lead up to her leaving in May 2021 and was chasing responses. It was only when Ms B contacted her caseworker in May 2021 that she received an email bounce back which told her the caseworker was leaving the Council. Given there was activity on Ms B’s son’s EHCP at the time I would have expected the Council to keep Ms B up-to-date with changes to those dealing with her son’s case. Failure to do that is fault. I recommended the Council apologise to Ms B for that and ensure when the allocated officer is changing parents are notified and provided with details of the officer that will be taking over as soon as it is possible to do so. The Council should also ensure there is a process in place to ensure annual reviews which are already overdue are not delayed as a result of a caseworker changing. The Council has agreed to my recommendations.
48. Ms B says the Council failed to properly consider her request for a reassessment and gave her wrong information about how to request a reassessment. In contrast the Council says it did not receive a request for a reassessment. There has clearly been some confusion here. Ms B has provided a copy of emails sent to the Council in May 2021. In those emails Ms B refers to the need for updated reports. Ms B also refers to the section of the code of practice relating to reassessments and makes clear she considered significant changes were required to her son’s EHCP. While that is not a clear request for a reassessment the implication is there and I would have expected the Council to clarify with Ms B whether she was requesting a full reassessment. Then, if Ms B had said she was, the Council could have considered whether a reassessment was appropriate. Failure to clarify with that with Ms B at the time is fault, as is directing Ms B to the review process for requesting a reassessment.
49. The Council has since said it did not consider a reassessment appropriate. That is also why the Council says it did not seek an updated educational psychology report. However, as Ms B has pointed out, her son’s EHCP was completed when he was in primary school and therefore both it and the reports on which it was based were considerably out of date. Had the Council followed the right process and given Ms B a formal decision not to pursue a reassessment in 2021 she would have had an opportunity to appeal that decision. Failing to issue a decision in 2021 is therefore fault. That resulted in Ms B missing out on her right of appeal.
50. The situation is complicated further by the fact the Council commissioned an educational psychology assessment in 2022 and also agreed a reassessment was required. Both of those decisions were reached before Ms B’s appeal to tribunal was considered. Given Ms B’s son was of primary school age when the previous reports were commissioned and taking into account the fact the Council completed a reassessment in 2022 I consider it likely if the Council had given proper consideration to the request in 2021 it would have agreed to carry out a reassessment. Failure to properly consider the case in 2021 is therefore fault.
51. That fault has delayed additional provision for Ms B’s son, although I cannot speculate about when that provision would have been put into place given the differing views over the type of education suitable for Ms B’s son. That is a matter the Ombudsman cannot comment on. In those circumstances I recommended the Council pay Ms B an additional £300 to reflect her uncertainty about whether the situation for her family would have been improved. I also recommended the Council refund the amount Ms B paid for the privately commissioned educational psychology report given she should not have had to commission that at her own expense had the Council properly considered the case in 2021. I further recommended the Council apologise to Ms B and remind officers dealing with EHCP’s of the need to follow the code of guidance when a parent asks for a reassessment. The Council has agreed to my recommendations.
52. Ms B says the Council failed to properly consider her complaint or provide appropriate remedies where it accepted it was at fault. I do not have a copy of all the Council’s complaint responses. However, the Council’s complaint response in April 2022 does not properly address some of the concerns Ms B raised and, in relation to the issue of failing to send the documents requested, fails to record whether the complaint has been upheld or not. Failure to properly respond to the complaint is fault. That is unlikely to have reassured Ms B the Council was taking her complaint seriously. I recommended the Council apologise to Ms B for that. The Council has agreed to my recommendation.

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Agreed action

53. Within one month of my decision the Council should:
• apologise to Ms B;
• pay Ms B £2,800; and
• refund the costs Ms B incurred in commissioning her own educational psychology report in 2022.
54. Within two months of my decision the Council should:
• introduce a process for tracking when annual reviews of EHCP’s are due for children who are not attending school;
• remind officers dealing with EHCP’s of the need to follow the code of practice when a parent asks for a reassessment and to ensure timescales are adhered to when completing EHCP’s following reviews;
• ensure there is a process in place to pick up arrangements for an annual review of an EHCP when officers are changed so there are no further delays.
55. The Council should also ensure when the allocated officer is changing parents are notified and provided with details of the officer that will be taking over as soon as it is possible to do so.

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Final decision

56. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman