Summary: The Council failed to ensure Ms X’s daughter, Z, received the education in her April 2021 Education, Health and Care Plan (EHC Plan). It also failed to complete its August 2021 annual review of her EHC Plan, failed to make sufficient efforts to consult alternative education placements and failed to investigate Ms X’s complaints properly. These failings meant Z lost out on education she was entitled to receive for ten term-time months, her EHC Plan was out of date for one year and Ms X and Z lost their right of appeal to the SEND Tribunal. The Council has already paid Ms X £2,080 in recognition of the injustice caused. It has agreed to pay Z a further £920 to reflect the significant period of missed education and £200 to Ms X to reflect the avoidable time and trouble she was put to. It has also agreed to carry out several service improvements.

The complaint

1. Ms X complained the Council:
1. failed to properly review her daughter's EHC Plan following the annual review meeting in August 2021;
2. failed to ensure Z received the education and provision in her April 2021 EHC Plan;
3. failed to promptly take steps to find an alternative education placement for her daughter once it became aware she was not receiving the education in her April 2021 EHC Plan; and
4. failed to carry out an urgent annual review in 2022, despite the Council saying it would in its Stage 2 complaint response.
2. Ms X said the Council’s actions have caused her daughter to avoidably be without the education provision in her EHC Plan for ten term-time months. She also said the disruption to Z’s education has contributed to a deterioration in her daughter’s mental health.

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The Ombudsman’s role and powers

3. 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)
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. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
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)
7. 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

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

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

12. 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.
13. 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.
14. 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

15. Councils must review EHC Plans regularly, usually at least every 12 months.
16. Councils may review a Plan within less than twelve months of the last review in response to a change in circumstance, such as a breakdown in education placement. This is sometimes referred to as an emergency annual review, or an early annual review.
17. 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. These requirements apply to early annual reviews in the same way as they do for normally timetabled reviews.

Finalising EHC Plans and right of appeal to Tribunal

18. The council should then issue the final amended EHC Plan within eight weeks of the draft amended Plan being issued.
19. 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.
20. 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)
21. A young person for the purposes of this legislation, is typically between 16-25 years old.

What happened

22. Z has autism and mental health issues.
23. During the period I am investigating, she studied a particular academic subject (Subject A) at a further education level. I have not specified the subject to preserve Z’s anonymity. It is Z’s ambition to study Subject A at university.
24. Medical evidence shows Z experienced a deterioration in her mental health from 2020 onwards, when the Covid-19 pandemic caused significant disruption to her routine.
25. Z’s April 2021 EHC Plan continued to name the college that she had been studying Subject A at for the past year. This course was for three days per week during term time. Z needed to complete this college course in order to apply to university.
26. The importance to Z of her accessing provision related to Subject A was set out in Z’s EHC Plan. Regarding her special educational needs, Section F said these would be met at the college through 1:1 support from a learning support assistant, a multi-sensory approach, staff awareness of her communication needs, and identifying areas in the college for sensory and mental health breaks.
27. However two months later, close to the end of that academic year, Z’s college tutors told Ms X that her daughter was likely to fail her course for that year. Due to her mental health deteriorating, the tutors recommended Z take a year out starting from the next term - September 2021 - and return to the course in September 2022.
28. On 19 July 2021 Ms X emailed the Council to say she did not agree that her daughter should take a year out of education, as she felt this would make Z’s mental health worse. Ms X said she was concerned that the provision in Section F of Z’s April 2021 EHC Plan was no longer going to be met and asked for an emergency early annual review to take place.
29. On 10 August 2021 the early annual review meeting was held. Ms X, the college, a member of the Council’s SEND department and Z’s social worker attended the meeting.
30. Two days before the meeting, Ms X emailed the Council and college to say she did now think a year out may be right for Z, but in her year off she should attend a specialist project related to Subject A she had found which would help her recover and return to formal education again.
31. During the early annual review meeting, the college again recommended that Z take a year out. Ms X disagreed and recommended the project she had found. Ms X wanted to discuss using a personal budget to fund it. The Council SEND officer had to leave the meeting before an agreement was reached on the next steps.
32. Ms X sent several emails after the meeting, asking what was going to happen in the next academic year, as it was late August and Z had no education in place. In these emails Ms X stressed that the specialist project - funded by adult social care – should not replace education and wanted to know what the plan was for Z’s education going forward.
33. On 23 August 2021 the Council responded to Ms X to say it was waiting for the school to send the early annual review meeting notes. The Council said in the meantime, Ms X could apply for a personal budget for Z to attend the specialist project.
34. The Council should have reached a decision within four weeks of the date of the emergency annual review meeting - so by 7 September 2021 - on whether to amend, maintain or cease Z’s EHC Plan.
35. By this date the Council had communicated with Ms X to say it would consider her personal budget request. However it made no formal decision, following the early review, on whether to amend, maintain or cease the Plan.
36. The Council did not chase the college for the meeting notes until December 2021 and then again in February 2022.
37. In September 2021, Z was not attending the college despite this being named in her most recent, finalised EHC Plan, which was from April 2021.
38. Instead at the end of October 2021, Z began attending the specialist project that Ms X had found for her for two days a week. This was not an education placement and was funded by the Council through adult social care.
39. Emails show Ms X asked the Council in September and October to help her find other provision for the two days in each week when Z was not attending any placement at all, as she said being at home on these days was not good for her.
40. During these months, the Council contacted the college to see if any possibility remained of Z continuing to attend the college in the current academic year.
41. The Council consulted two alternative provisions and Ms X approached several provisions herself during this time to see if they could support Z while she was not receiving education. However most placements either could not meet Z’s needs or the Council said it did not meet their requirements for funding through the personal budget.
42. On 25 November 2021 Ms X complained to the Council. By this point Z had missed almost three term-time months of the education that her April 2021 EHC Plan said she should be receiving and the August 2021 annual review of her EHC Plan had not been finalised.
43. Ms X complained that:
• the Council’s officer left the August 2021 annual review meeting early;
• Z was not receiving the education in her EHC Plan; and
• her annual review and EHC Plan had not been finalised following the August 2021 early annual review meeting.
44. The Council responded in December 2021 to say it did not uphold her complaint. It said according to Z’s April 2021 EHC Plan, the college was named, so the Council expected the college to be providing her education, as well as the provision to meet her special educational needs as set out in Section F.
45. It said it could see that an early annual review of the April 2021 EHC Plan took place in August, but the college had not submitted the paperwork from the meeting, so it was, ‘unclear as to the status of this meeting’.
46. On 10 January 2022 Ms X made a stage 2 complaint. She said Z was still not receiving any education despite this being in her most recent finalised EHC Plan. Ms X enclosed copies of emails between her and the Council showing the Council knew from mid-July 2021 that Z was not accessing the college placement named in her April 2021 Plan.
47. Two months later, the Council responded at the final stage of its complaints process. This time it upheld several of Ms X’s complaints and offered Ms X a payment of £2,080 in recognition of injustice caused by its faults.
48. It said it was clear that Ms X had requested a review of the Plan since July 2021 and as a remedy, the Council offered to carry out another annual review as a matter of urgency. The Council also accepted that steps taken following the August 2021 annual review meeting were not taken ‘with the urgency (Ms X) might expect’.
49. However regarding her complaint that the August 2021 review was never finalised, it said this was ‘outside the scope’ of its investigation, as that was the fault of the college for failing to send the Council a copy of the annual review meeting notes.
50. On 9 March 2022, Z had a mental health crisis when she was home alone in the week and the local crisis team became involved.
51. Shortly after this, Z’s social worker secured increased funding so that Z could attend the specialist project for three days a week rather than two, to reduce the time she would be left alone in the house. Ms X reduced her working hours to support Z on the other days where she was not attending a placement.
52. Z’s EHC Plan was never finalised following the August 2021 early annual review. The next annual review of Z’s EHC Plan took place in May 2022.
53. The Council sent Ms X the draft, amended Plan following the May 2022 annual review, this was in line with its statutory duty. The Council received Ms X’s comments on the draft, amended EHC Plan on 22 June 2022.
54. The Council said it posted Ms X the final, amended EHC Plan on 18 August 2022. However Ms X said she never received this and was not aware it had been finalised.
55. The Ombudsman was sent a copy of the final, amended Plan as part of our enquiries, so we sent Ms X a copy of this on 13 October 2022. She said that while she had not received a copy, the Council ‘made most of the changes’ that she requested.
56. Z started further work at the specialist project at the end of October 2022, when her personal budget was agreed, which once completed would count towards her Level 3 qualification and assist her in being able to apply to university.

My findings

Failure to complete August 2021 early annual review

57. The Council said it could not complete the August 2021 annual review because the college did not send it the meeting notes. The Council told us it chased the college for the notes in December 2021 and February 2022. These requests for the notes were made considerably later than the date by which the EHC Plan should have been finalised.
58. In any case, the responsibility for finalising Z’s EHC Plan rests with the Council. The requirements for an early annual review are the same as for a conventionally timed review. The Council was at fault.
59. Within four weeks of the August 2021 early annual review meeting, the Council should have issued a decision on whether to maintain, amend or discontinue Z’s EHC Plan. In the event of changes being made it should have then issued a final, amended EHC Plan giving Ms X her right of appeal to the SEND Tribunal. The Council failed to do either. This was fault.
60. These faults caused Z to be without an up-to-date EHC Plan setting out her needs and the provision to meet them, from August 2021 to August 2022. Her previous Plan, and the provision it set out, therefore remained in force. Lack of this provision was therefore injustice caused by this fault.

Failure to ensure Z received the provision in her April 2021 EHC Plan

61. As the Council failed to complete its August 2021 annual review of Z’s EHC Plan, the last EHC Plan in force was from April 2021.
62. The April 2021 Plan said Z should have been receiving education at the college three days a week for the next academic year and specified several forms of SEN support in Section F to assist with this. Z received none of that education, or Section F provision, in the 2021/22 academic year.
63. The Council had a non-delegable duty to ensure Z received what was in her EHC Plan. It knew, from its contact with the college, that she was not attending and therefore not receiving the provision set out in her Plan. It failed to ensure this. The Council was at fault.
64. This fault caused Z to be without the education and SEN support in her EHC Plan for ten term-time months (one academic year), starting from September 2021 and ending in July 2022.
65. I have used September 2021 as the start point because this was when the Council should have decided, following the early review, whether the plan needed to change. July 2022 is when that academic year ended. By this time, Z’s EHC Plan was being reviewed and a new bespoke package was named in the final, amended EHC Plan of August 2022.
66. Ms X says she did not receive the final, amended EHC Plan. The Council says it sent the Plan by post. Its electronic workflow records show it carried out this task. Whilst not absolute proof it posted the Plan, on the balance of probabilities, I am satisfied the Council acted without fault at this point.

Failure to make sufficient efforts to find alternative education

67. Ms X did most of the research into, and consulting of, other provisions during Z’s year out of education. The Council consulted only two placements and contacted the college to try and have Z remain on-roll there.
68. These were not sufficient efforts to find Z an alternative provision while she was receiving none of the education or support in her Plan. The Council was at fault.
69. This fault put Ms X to avoidable time and trouble in finding other placements for Z and caused uncertainty to Z and Ms X regarding whether other suitable placements might have been available to Z during this time.

Failure to urgently review Z’s EHC Plan

70. The Council accepted some fault by stage 2 of its complaints process, completed in March 2022. As one of the remedies, it said it would carry out an urgent annual review of Z’s EHC Plan.
71. However the next annual review began in May 2022, more than twelve months after Z’s last finalised EHC Plan, which was in April 2021. This was not an urgent annual review as this review was already late.
72. The Council was at fault for this further delay in reviewing Z’s EHC Plan. This delay caused Ms X and Z further distress at a time when they needed prompt action regarding Z’s education.

Failure to properly investigate complaints

73. When Ms X complained to the Council, emails show the Council knew Z was not receiving the education required by her April 2021 EHC Plan. It also knew she was not attending the college named in Section I of that Plan, and that no decision regarding Z’s Plan had been made following the August 2021 annual review.
74. However the Council’s stage 1 complaint response said as far as it was aware, the college was named in Section I of Z’s April 2021 EHC Plan, so it expected the college to be providing her education. The college was named in the Plan because the Council had failed to review it properly following a change in circumstances.
75. The Council failed to meaningfully investigate and respond to this part of Ms X’s complaint. This was fault.
76. The Council also said in both its complaint responses that the outcome of the August 2021 annual review was ‘unclear’. However in this case it should have been evident that the annual review process was not completed in line with the law and guidance.
77. We expect complaint investigations to investigate what happened and come to a conclusion. The Council did not do this. The Council was at fault.
78. These faults put Ms X to avoidable time and trouble in bringing her complaints to the Ombudsman.
79. The Council has provided evidence that it has paid Ms X £2,080 as offered in its stage 2 complaint response. This financial remedy was a positive step towards recognising the injustice caused to Ms X and Z by the faults in this case.
80. However, the Ombudsman’s Guidance on Remedies recommends a higher payment for the distress caused and the amount of missed education. This is justified by my findings. I have reflected this in my recommended remedy.

Remedying injustice caused by the faults

81. We cannot make a finding on what provision was suitable for Z in the 2021/22 academic year. It is the role of the SEND Tribunal, not the Ombudsman, to decide on the suitability of disputed SEN provision.
82. As a consequence of the incomplete early annual review, Ms X was not given the opportunity to appeal to the SEND Tribunal. This means the appropriate avenue to resolve this disagreement was lost. And in any case the provision set out in the April 2021 Plan remained in force in the absence of a completed annual review.
83. Therefore, I have recommended a remedy for loss of provision. This takes account of the fact the Council funded some part-time, non-educational provision during this period and also takes account of the financial remedy already paid to Ms X by the Council.
84. It also takes account of the significance of this period in Z’s education as she approached decisions about further education, as well as her vulnerabilities due to mental health issues during that academic year.

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Agreed actions

85. 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;
• pay Z £920 in recognition of the ten term-time months of education that Z should have received but missed. This takes account of the £2,080 already paid by the Council to Z and Ms X; and
• pay Ms X £200 in recognition of the avoidable time and trouble she was put to by the Council’s poor complaint investigation and its lack of action to consult alternative education providers.
86. Within three months of the date of the final decision, the Council has agreed to:
• provide evidence that it has carried out renewed training for its SEND team on the statutory timescales for completing annual review processes and finalising EHC Plans, including when this applies to early annual reviews;
• set out in writing to all of its SEND staff why it is important for children, young people and their parents to have up-to-date, finalised, EHC Plans in each academic year; and
• provide evidence that it has reminded its complaint handling team for SEN complaints that if their investigation identifies that the Council has not met its statutory duties around annual reviews and EHC Plans, then it should apologise for this and take prompt action to remedy the fault.

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Final decision

87. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to pay a financial remedy and carry out service improvements.

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Investigator's decision on behalf of the Ombudsman