Summary: Miss X complained about how the Council has handled her son, F’s Education, Health and Care (EHC) plan and education since June 2022. The Council was at fault. It delayed issuing F’s amended EHC plans following annual reviews in both 2022 and 2023. F was also without provision and education in line with his EHC plan during the 2022 autumn term. The Council agreed to make payments to Miss X to acknowledge the injustice these faults caused.

The complaint

1. Miss X complained about how the Council has handled her son, F’s Education, Health and Care (EHC) plan and his education since June 2022. She complained the Council:
• Delayed issuing F’s amended EHC plan following an annual review in June 2022.
• Failed to ensure F received provision in line with his EHC plan between June 2022 and October 2022.
• Issued an outdated EHC plan to F’s school which he could not start at in September 2022 because it was not open.
• Carried out an annual review in March 2023 but to date has not issued a final amended plan.
2. Miss X says F is struggling at school and has missed out on provision due to the Council’s failings which has caused him and her distress and uncertainty.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 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

9. I spoke to Miss X and considered information she provided.
10. I considered the Council’s response to my enquiry letter.
11. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

12. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. 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
15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. Councils must send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent.
17. 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.

What happened

18. Miss X has a son, F who was due to transition to secondary school in September 2022. F has special educational needs (SEN) which affect his emotions. He has an EHC plan. F attended a pupil referral unit (PRU) while remaining on roll at a mainstream primary school.
19. The EHC plan in place during the end of the 2021/22 academic year outlined the special educational provision F was entitled to. This included one-to-one support throughout the school day, sessions to help his social interaction and emotional needs and input from an occupational therapist (OT).
20. An annual review was held in June 2022 with the plan for F to move to secondary school (School 1) in September 2022. However, School 1 was undergoing building work and was not open to pupils in time for the start of the academic year. Therefore, F remained at home for the first five weeks of the term without any provision or education in place. There is no evidence of any transition plan in place to help F move into secondary education.
21. F started began attending School 1 in mid-October 2022 and a week later Miss X complained to the Council. She mainly raised concerns about how F had historically struggled in school. Miss X said she had asked schools to refer F for an Attention-deficit/hyperactivity disorder assessment (ADHD) which never happened. Miss X said she was frustrated School 1 did not open in time and there was no transition plan in place. Miss X said she was still waiting for F’s amended EHC plan following the annual review in June.
22. The Council responded to Miss X at stage 1 of the complaint procedure in November 2022. It said it could not comment on F’s ADHD diagnosis as assessments for this lie with the NHS. It noted F had now started at School 1 and that he had made a positive start.
23. Records show School 1 chased the Council for a copy of F’s amended final EHC plan in December.
24. Miss X escalated her complaint. She said F’s start at School 1 was not positive and said he was on a reduced timetable. Miss X explained again that F’s previous schools had not referred him for ADHD assessments and raised concerns about how schools had historically treated him. She was unhappy F had been moved to so many different schools during his primary school years. Miss X mentioned that she still did not have a copy of F’s amended EHC plan following the annual review in June. She said the Council had sent School 1 an old EHC plan from 2020 which meant it could not put in place appropriate provision for F.
25. The Council responded to Miss X in December 2022. It was unsure why School 1 had a copy of F’s EHC plan from 2020. It said Miss X should have now received a copy of F’s final amended EHC plan.
26. The Council issued F’s final amended EHC plan in mid-December 2022, naming School 1 as F’s placement.
27. In early 2023 School 1 held another annual review of F’s EHC plan. This was delayed until March 2023 due to illness. Records of the annual review show F’s attendance at School 1 was good and that F had good engagement and was participating in learning. There were however instances of F missing lessons. The annual review record section which asks whether the EHC plan remains appropriate or whether it requires amending was left incomplete.
28. Miss X remained unhappy and complained to us.

The Council’s response to us

29. The Council told us it had sent F’s 2020 EHC plan to School 1 as part of the consultation. It issued F’s final amended EHC plan in December 2022 as quickly as possible.
30. It acknowledged F was unable to start at School 1 in September 2022 and this meant he went without any education for the first five weeks of the term.
31. The Council said it had sent F’s draft EHC plan following the March 2023 annual review in April and was planning to issue the final plan in August.

My findings

32. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. F’s annual review was in June 2022 which meant the Council should have issued an amended final plan by the start of September. It did not do so until December which was a three-month delay. That was fault.
33. The annual review decided F would start at School 1 in September 2022. School 1 was unable to open due to matters outside the control of the Council, however it meant F was without any education or provision in line with his EHC plan for the first five weeks of the term. There is no evidence the Council made any efforts to ensure otherwise. That was fault and I have made a recommendation below to acknowledge the injustice this caused F.
34. Due to the delays in issuing F’s amended EHC plan School 1 only had a copy of a plan from 2020 which contained out of date provision and outcomes. Therefore, School 1 was not aware of F’s up to date provision or his needs and outcomes. Although F attended School 1 from October onwards and he did receive education, it is likely, on balance, that he did not receive all of the provision in line with his EHC plan because School 1 had to rely on an out of date plan. This was fault and I have made a recommendation below to acknowledge the injustice this caused F.
35. Following the issuing of F’s final EHC plan, records show F was attending school regularly and making progress. Much of Miss X’s concerns are about how F was treated in past schools, about past schools failing to make ADHD referrals and about the number of schools he attended. These are either incidents in school which we cannot investigate or are out of time as Miss X could have complained earlier about F’s primary schooling. Miss X said to us she did not believe he was receiving provision or being adequately supported however she has not provided any specific examples and lack of provision was not raised in her complaint to the Council. If Miss X believes F is not receiving provision in line with his plan she should make a new complaint about this, but I have not found fault in that matter during this investigation.
36. F’s annual review was held in March 2023. As the Council intends to amend F’s EHC plan then it should have issued a final amended EHC plan by the end of May. To date, it has not done so which is fault and at the time of writing a delay of around three months. The delay means F has started the 2023/24 academic year without an up to date EHC plan and it has delayed Miss X’s right of appeal to the SEND tribunal.
37. I have made recommendations below to remedy the personal injustice the identified faults have caused F and Miss X. I have considered whether to make service improvement recommendation however the Council has recently agreed to make improvements following similar faults found in another of our investigations. This includes:
• Reform and a new streamlined process to reduce similar delays following annual reviews.
• Ongoing recruitment of staff to respond to cases.
• A portal based system with named case officers responsible for case loads.
• Dedicated teams to deal with EHC needs assessment and annual review cases.
• Holding multi-agency meetings in the autumn term to process annual reviews earlier to enable adequate transition planning.
• Legal and statutory guidance training for staff.
38. Given the Council has recently agreed to the above I have decided not to make any further service improvement recommendations.

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Agreed action

39. Within one month of the final decision the Council agreed to take the following action:
1. Pay Miss X £500 to acknowledge the distress and frustration caused by the Council’s delay in issuing F’s final amended EHC plans following annual reviews in both 2022 and 2023.
2. Pay Miss X £1000 to acknowledge the impact on F’s education caused by the delay in issuing his amended EHC plan in 2022, the loss of provision during the 2022 autumn term, and for sending F’s out of date EHC plan to School 1.
3. Issue F’s final amended EHC plan following the annual review held in March 2023, including information for Miss X about her rights to mediation and right of appeal to the SEND tribunal.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman