Summary: Mr B complains the Council delayed in reviewing his child, Y’s, education health and care (“EHC”) plan. He also says the Council declined to provide additional mentoring support but did not base its decision on an assessment of need. Mr B says he has experienced repeated delays and difficulties, which have caused significant distress and meant Y has not received adequate support with his education. We find the Council was at fault for the delay completing an annual review but do not find fault in its decision on mentoring.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council did not complete an annual review of Y’s EHC plan, which was due in July 2022, within the required timescales.
2. We recently considered another complaint from Mr B in which we found the Council at fault for significant delays in completing the previous annual review. Mr B says the repetition of delays has caused significant distress and a loss of confidence in the Council.
3. Mr B also complains the Council did not agree to provide additional mentoring support to Y. He says the Council did not base its decision on a proper assessment of need and its approach was discriminatory. He also says the Council referred him to different teams and failed to coordinate across teams in responding to his request. He says this meant he spent time and trouble making unnecessary phone calls and referrals.

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What I have and have not investigated

4. I have investigated Mr B’s complaint about the delay in completing an annual review of Y’s EHC plan and the Council’s decision not to provide extra mentoring during the holiday period. I have not considered any disagreement between Mr B and the Council over the plan or level of hours for mentoring and education going forward as this is not within our jurisdiction to investigate. The Council has considered this as part of an annual review of the EHC plan. Mr B can provide his views to the Council, as part of the review procedure. If Mr B disagrees with the final EHC plan, he will have a right of appeal against this to the SEND tribunal.

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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. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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.
8. 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

9. I considered the information provided by Mr B and the Council and spoke to Mr B about the complaint. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

10. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. They 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 EHC plan was issued, and then within 12 months of any previous review. 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.
12. Where a council proposes to amend an EHC plan, the law says 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. It should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
13. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
14. 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. The right of appeal is only engaged when the final amended plan is issued.
15. 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.
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
17. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.

Background

18. Y is diagnosed with autism and has an EHC plan. In June 2022 we issued a decision finding fault with the Council for not completing an annual review of the EHC plan within statutory timescales and for failing to provide a coordinated approach.
19. The Council had last reviewed Y’s EHC plan and issued an amended plan in July 2021. Therefore, his annual review was due in July 2022. The Council arranged a review meeting for July 2022. However, the relevant officer for the Council cancelled the meeting due to personal circumstances. The Council then arranged a meeting to take place in September 2022. However, the Council also cancelled this meeting at late notice. The Council arranged a further meeting, which took place in October 2022.
20. Mr B says he met with Council officers in June 2022 to discuss support for Y. At this meeting the Council agreed to fund mentoring for Y through an external provider. The Council acknowledged that Y would be starting this mentoring late in the school term. Therefore, it agreed to fund two hours of mentoring per week over the summer holidays, so that Y stayed engaged with the service.
21. Mr B asked the Council to be flexible and allow Y to have more than two hours per week if necessary. The Council declined. It said it was providing the two hours of mentoring on a goodwill basis. Mr B was dealing with the education team at this point. It said that if Mr B considered Y needed additional support to access the community during the school holidays, he could contact the 0-25 social care team to ask for a needs assessment.
22. Mr B contacted the 0-25 team. He says initially an advisor told him that Y did not meet the criteria for an assessment and recommended he contact the Citizens Advice Bureau. Mr B challenged this and after some difficulty, the social care team agreed to complete an assessment. He asked it to provide additional mentoring during the Christmas holiday period, to make up for a lack of hours previously. The social care team decided that it would not fund additional mentoring hours during the Christmas holiday, as this would be the responsibility of the education team.
23. Mr B says that in no circumstances does a child ever receive support from a council on a goodwill basis. He says any support provided is to address an identified need. He says Y needed this support and the Council did not complete a proper assessment of need. He says the Council’s approach towards Y was discriminatory. He said that no one in the education or social care teams were talking to each other, so he was being passed between teams with no satisfactory outcome.

Findings

24. I have separated my findings into the following issues:
• Delay in completing the annual review
• Decision not to provide additional mentoring

Delay in completing the annual review

25. The Council held a review meeting, but this was three months outside the required timescale. The Council had arranged a meeting within the required timescale but cancelled this, followed by another cancelled meeting.
26. The Council has given reasons for why the meetings were cancelled, including personal circumstances of the officer who would have conducted the meetings. Even so, the Council had a legal duty to conduct an annual review and to delay by three months represents a service failure. The Council should have systems in place that enable annual review meetings go ahead as planned, or are rearranged within a short period of time, in situations such as these. Therefore, I find fault in the delay.
27. The fault caused distress to Mr B, which was heightened by the fact it happened immediately after we had found fault with the Council for previous, lengthy delays in completing reviews of the EHC plan.
28. Subsequent correspondence suggests Mr B disagrees with the Council’s draft EHC plan, and the number of mentoring hours included. I cannot say whether Mr B will appeal the EHC plan. However, the fault has also led to a delay in Mr B having appeal rights against the EHC plan, should he choose to do so.
29. I recommend the Council pay Mr B £200 to recognise the distress caused by the delay. For the reasons outlined at Paragraph 4, I have not made any findings about how many mentoring hours the Council will provide going forward.
30. The Council says it has reminded all EHC coordinators to ensure any meetings cancelled due to unforeseen circumstances are prioritised for rescheduling, so that families are not left waiting. I recommend the Council send a further reminder to its EHC coordinators, that whenever annual review meetings are cancelled, and this would lead to the review not being completed within the statutory timescales, to identify any actions that can be taken to ensure the review happens within the required timeframe and rearrange a meeting without delay.

Decision not to provide additional mentoring

31. I do not find fault in how the Council made this decision.
32. The Council had a s19 duty to provide alternative educational provision to Y during term time, but not during the holiday period. It provided the two hours of mentoring during the summer holiday on a discretionary basis.
33. An assessment of need takes place when the Council assesses a child for an EHC plan. The Council should review that assessment and EHC plan annually, or earlier if necessary. In this case, mentoring during non-term time was not a requirement the EHC plan. The Council agreed to provide mentoring during term time as part of its s19 alternative education duty. It did not have a duty under s19 to provide it during holiday periods.
34. The Council can at any time, if it believes it would be beneficial, provide additional services, outside of its legal duty. This does not have to be based on a formal assessment of need. The mentoring it provided during the summer holiday was at the Council’s discretion, so I cannot find fault with it not agreeing to a higher number of hours and cannot find its approach was discriminatory.
35. If Mr B considered that additional mentoring was necessary and should be set out in the EHC plan, this could only be addressed by way of a review of the plan. I have found fault in the delay completing a review but cannot find fault with the way it considered providing additional support before the conclusion of the review.
36. The Council informed Mr B he could make a referral to the social care team. However, I cannot see that it said the social care team were the team responsible for providing any extra mentoring. The education team had communicated a decision that it would provide two hours during the holiday but no more. It said that if Mr B considered Y needed extra support accessing the community, he could ask for a social care needs assessment. The social care assessment could consider whether support was necessary in any number of ways, not necessarily including mentoring. That was for the social care team to determine. However, whatever the social care team found, it did not have any bearing on the decision by the education team, that it would not provide more than two hours.
37. I have not found fault with the education team’s decision on mentoring and cannot find fault with it signposting Mr B to the social care team if he believed Y needed additional support to access the community.

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Agreed action

38. The Council has agreed to, within a month of this decision:
• Apologise to Mr B for the delay in completing the annual review
• Pay Mr B £200 to recognise the distress caused
• Send a reminder to its EHC coordinators that when annual review meetings are cancelled, and this would lead to the review not being completed within the statutory timescales, to identify any actions that can be taken to ensure the review happens within the required timeframe and rearrange a meeting without delay
39. The Council should provide evidence it has completed the above actions.

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Investigator's decision on behalf of the Ombudsman