Summary: Mrs X complained the Council failed to secure the provision set out in her daughter, Y’s, Education, Health and Care (EHC) Plan. Mrs X also complained the Council failed to properly review Y’s EHC Plan and communication was poor. We find the Council at fault for delays in reviewing Y’s EHC Plan and completing its reassessment. We recommend the Council apologise to Mrs X, make a payment to recognise the injustice caused and act to prevent recurrence.

The complaint

1. Mrs X complains the Council failed to secure the provision set out for her daughter, Y, in Section F of her EHC Plan and failed to properly review the EHC Plan when she notified it of a change in circumstances. Mrs X also says the communication from the Council has been poor. Mrs X says this meant she had to take Y out of school and caused her a great deal of stress.

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What I have and have not investigated

2. I have investigated the complaints above other than:
• I have not investigated whether the Council was at fault for failing to secure provision for Y before October 2021. This is because any failure here would have been apparent to Mrs X more than 12 months prior to her contacting us and so this complaint is out of time. I consider there is no good reason to exercise discretion.
• I have not investigated any loss of education or provision linked to dispute over the educational setting named in the April 2022 EHC Plan. This is because Mrs X had the right to appeal the content of this EHC Plan to the Tribunal and it was reasonable to expect her to use that right.
• I have not investigated issues that Mrs X has experienced since contacting our service in October 2022. This includes any failure to ensure EHC Plan provision and education for Y, or to make payments to Mrs X for this. This is because these are new matters that have not yet been brought to the Council to consider. I consider it would not be unreasonable for Mrs X to raise these issues with the Council to give it an opportunity to reply.

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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. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
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.
9. 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

10. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

12. A child with special educational needs (SEN) may have an 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.
13. If a Council decides to assess or reassess a child’s EHC Plan needs, they must:
• Gather information from relevant professionals, who must respond within six weeks.
• Send a draft EHC Plan to the child’s parent, giving them at least 15 days to comment and express a preference for a school.
• Consult with any relevant school before naming it in the EHC Plan and allow it 15 days to respond.
• Amend any draft plans and issue a final EHC Plan as quickly as possible.
• Tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.
14. The maximum timescale for an assessment or a reassessment is 14 weeks from the decision to assess, or reassess, to the issuing of the final EHC Plan.
15. Once an EHC Plan is in place, councils must review it at least every 12 months, though they may do this earlier if a child’s parent asks for it. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Within 2 weeks of an EHC Plan review meeting the school must provide a report to the council with any recommended amendments.
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or end the plan. It must tell the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
• The council must send the draft EHC Plan to the child’s parent and give them at least 15 days to give views on the content.
• When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHC Plan as quickly as possible.
• Where the council does not agree the suggested changes it may still issue the final EHC Plan.
• In any event the Council should issue a final EHC Plan within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
16. Section 19 of the Education Act 1996 says 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.
17. The Ombudsman issued a Focus Report in September 2011, amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

18. Y has SEN and her education is supported by an EHC Plan which was reviewed at her school (School A) on 21 September 2021. At this stage, Y was in year five and the EHC Plan provided for:
• 1:1 emotional literacy support for an hour each week
• Small group teaching environments and 1:1 play sessions
• Access to an adult throughout the school day to help with accessing an adapted curriculum, organisation, and prompts in learning and social situations
• Access to assistive technology and 30 minutes 1:1 teaching daily to help her learning with this
• 15 minutes of multi-sensory reading and sound practice daily
19. The school provided the Council with the documents from the review three weeks later.
20. On 19 October, the Council missed the four-week deadline to let Mrs X know whether it had decided to amend Y’s plan.
21. The Council then wrote to Mrs X on 6 December with a new draft EHC Plan. This was seven weeks later than the statutory time limits. The provision in this draft EHC Plan mirrored the provision set out in the existing plan.
22. The EHC Plan named School A and said Y would be transferring to another school in Autumn 2022, which was still to be identified.
23. Based on the draft EHC Plan, the Council consulted with School B and School C. Both of these are mainstream schools and responded to say they could not meet Y’s needs.
24. On 14 December, the Council missed the deadline to finalise Y’s EHC Plan.
25. The Council emailed Mrs X on 11 February 2022 to ask for her preference on schools for Y. Mrs X responded that day to explain she had concerns about whether mainstream schools could meet Y’s needs, but she also did not believe specialist schooling was appropriate. Mrs X asked the Council for information about a personal budget and pursuing Education Otherwise Than At School (EOTAS).
26. The following day Mrs X emailed the Council again. She explained she had not yet decided what was best for Y, but her preference was for School B to be named on Y’s EHC Plan.
27. The Council wrote to School B directing it to offer Y a place on 16 February. That same day, the Council responded to Mrs X’s query about EOTAS. It explained it generally viewed EOTAS as a short-term option when a child’s educational needs could not be met otherwise. It said it would need to discuss this at a management panel meeting if Mrs X requested it.
28. Mrs X withdrew Y from School A on 28 February. Mrs X said she took this decision due to a number of internal failings at the school and a safeguarding incident that the school failed to properly report on. The Council’s Elective Home Education (EHE) team reached out to Mrs X to discuss what support was available to her and provided information about the Department for Education guidance.
29. On 31 March, Mrs X sent a home education report to the Council. This detailed monthly topics from January to December, the reason for choosing EHE and confirmation Mrs X understood it was her responsibility to offer a full education based on age, ability, aptitude and specific needs.
30. On 22 April, Mrs X wrote to the Council to explain she had decided to deregister Y from school as she could not find a suitable secondary setting. Mrs X asked for advice on updating Y’s EHC Plan and for EOTAS options.
31. The Council finalised Y’s EHC Plan that same day. This mirrored the draft from 6 December 2021 but named School B as the location Y would be transferring to from the Autumn 2022 school term. This final plan was issued more than 18 weeks after the statutory deadline.
32. Mrs X contacted the Council to ask for information about applying for EOTAS and it provided the contact details of a SEN case manager to discuss this in more detail.
33. Due to the substantial change in how Y was being educated, on 27 May, the Council agreed to carry out an early review of Y’s EHC Plan.
34. The Council wrote to Mrs X to explain the EHC Plan review would be arranged through School A as it was still named on Y’s plan and she had not been officially removed for EHE at that point. Mrs X objected to this as Y was no longer at School A.
35. On 7 June Mrs X complained to the Council. Mrs X explained:
• She felt communication from the Council had been poor, and calls and emails often went unanswered.
• She had removed Y from School A as it was incapable of delivering Y’s EHC Plan and failed to report a safeguarding incident. For this reason, it would not be suitable for the school to facilitate the EHC Plan review.
• She felt case workers had failed to read her correspondence or take the time to understand Y’s situation.
• She was currently funding as much of Y’s education as she could but needed an emergency EHC Plan review so she could secure EOTAS funding.
36. On 27 June, Mrs X and the Council met to discuss Y’s EHC Plan and her needs going forward.
37. On 5 July, the Council held an early annual review, at which time Mrs X requested EOTAS be included on Y’s EHC Plan.
38. Mrs X chased the Council for an update the following day and was told it would reassess Y’s needs, but this could take up to 12 months. In the meantime, the Council agreed to fund a tutor but said it would not consider EOTAS without a medical professional statement saying Y could not attend any school.
39. Mrs X responded to this asking what education would be provided while the reassessment took place and asking why School B had been named on Y’s EHC Plan. She also pointed out there was no legal requirement for a medical professional to sign off on a child not being able to attend school.
40. On 7 July, the Council requested assessments from social care, NHS, and Educational Psychology (EP). These reports were received on 22 July, 22 August, and 17 January 2023 respectively.
41. On 27 July 2022, the Council responded to Mrs X’s complaint. It explained its SEN team was experiencing a lot of pressure, but it was working hard to fix this. It explained it was implementing a new case management system to increase oversight of its processes and recruiting extra staff to cope with demand. The Council apologised for the lack of communication and explained it was in the process of gathering the information it needed to re-assess Y’s needs and Mrs X’s request for an EOTAS package. It explained any complaint about
    School A should be raised through the school’s complaint procedure.
42. Mrs X and the Council’s case manager met the following day to discuss Y’s needs.
43. On 31 July Mrs X emailed the Council asking it to escalate her complaint. She explained she had met with the Council’s case manager on 28 July and they had agreed to feedback to the complaints team but the Council still had not arranged support for Y. Mrs X explained she did not feel the Council’s complaint response had acknowledged the fact it had failed Y and had not secured the provision set out in her EHC Plan.
44. The Council wrote to Mrs X again on 2 August. It agreed to put a package together for one academic year while Y’s reassessment took place.
45. Mrs X chased the Council for an update on the package on 8 August, 11 August and 18 August. The Council responded on 19 August to say it still had not confirmed the package, but it would include maths, English and science as well as Speech and Language Therapy (SALT) and Occupational Therapy (OT) once assessments took place.
46. The Council also confirmed Mrs X could arrange tuition for four hours a week in maths and English and two hours a week in science, starting from September 2022, as she had requested. Any invoices for tuition should be sent to its case manager who would forward them to the finance team.
47. On 31 August the Council responded to Mrs X’s complaint. The Council said:
• It agreed it had not met the SEN regulations when dealing with Y’s case and had missed deadlines to amend her EHC Plan following an annual review. It apologised for this and said it had already started work to improve its processes.
• Y’s EHC Plan was written for her to attend school and the school received the funding to provide support to her. When Mrs X decided to remove Y from school she effectively took on the responsibility of putting that support in place. However, it believed the bespoke package that was being put together would resolve the issue going forward.
• A re-assessment was underway and the Council was waiting for relevant documentation from professionals who had worked with Y before it could complete this. A personal budget and bespoke package was agreed for 12 months and would be approved in the next few weeks.
• If Mrs X remained unhappy, she could bring her complaint to the Ombudsman.
48. Mrs X responded to the Council on 2 September. She explained she did not willingly deregister Y from school and so did not accept it became her responsibility to meet the provision set out in her EHC Plan. Mrs X reiterated that the school failed to meet Y’s provision and there were safeguarding issues. Mrs X explained the Council still had not told her how it would pay for the tutoring it had agreed for Y and was concerned she would have to fund this herself. Mrs X asked the Council to confirm when she would hear about the personal budget.
49. Mrs X brought her complaint to the Ombudsman in October 2022.
50. In response to our enquiries the Council explained:
• It recognised there was a delay of more than 18 weeks in issuing a final EHC Plan for Y and it was willing to pay Mrs X £200 to recognise the stress and anxiety this would have caused.
• An early review of this EHC Plan took place on 27 June 2022 and resulted in an agreement to re-assess.
• Mrs X first made the Council aware of School A’s failure to provide EHC Plan provision in her complaint letter of 7 June 2022 – after she had already deregistered Y from school.
• Mrs X asked about a personal budget and EOTAS on 11 February 2022 then asked it to name School B on the EHC Plan the following day. Mrs X did not make a formal request for EOTAS until the annual review of 5 July 2022.
51. The Council issued a final EHC Plan for Y on 2 June 2023 – eight months after the statutory deadline to do so. This EHC Plan named EOTAS rather than a school setting. The EHC Plan provided for small group teaching and 1:1 sessions as well as a consistent keyworker throughout the school day. The EHC Plan also provided for specialist equipment to help with Y’s learning.

Findings

Alleged failure to ensure provision was in place

52. The Council has no record of Mrs X informing it School A had failed to meet Y’s EHC Plan provision until after Y had already stopped attending school. I cannot find the Council at fault where it is unaware of any problem with provision. I do not find fault the Council at fault for failing to investigate whether EHC Plan provision was being met while Y was at School A.
53. However, the Council was aware Mrs X had taken Y out of school from 28 February 2022. From that point it had a duty to ensure Y was receiving a suitable education. The Council’s EHE team then contacted Mrs X to discuss the education she was providing Y and reviewed a home education report she provided to satisfy itself Y was still receiving suitable education despite being out of school. I do not find the Council at fault here.
54. From July 2022 Mrs X made clear she wanted the Council to arrange education for Y. While School A remained named on Y’s EHC Plan and available for Y to attend, as she was not attending the Council had a duty to ensure she would receive suitable education. The Council liaised with Mrs X and agreed to fund tuition from September 2022 to support her in educating Y. I consider it met its duty in doing so. As explained above, I am not investigating any complaints about provision after October 2022 as these are premature.

Timeliness of EHC Plan reviews

55. Y’s EHC Plan was reviewed on 21 September 2021, but a final plan was not issued until 22 April 2022, more than 18 weeks after the statutory deadline had passed. This is fault. The Council has acknowledged this delay would have caused stress and anxiety to Mrs X, which is injustice, and has offered to pay her £200 in recognition of this. My view is this is not enough to be a true reflection of the stress and anxiety caused by the delay.
56. Once it was issued, the provision set out in Y’s EHC Plan mirrored that of the previous EHC Plan. This being the case, Y would not have suffered an injustice due to a loss of provision.
57. Mrs X asked the Council to review Y’s EHC Plan again on 27 May. The Council did not hold the review meeting until 5 July. There is no statutory timeline for holding an early review following a request and the timeframe here, being roughly a month, is not undue delay, noting the Council was in communication with Mrs X about the involvement of School A. I do not find the Council at fault for a delay in holding an early review of Y’s EHC Plan.
58. The Council held Y’s early EHC Plan review on 5 July 2022. It agreed to reassess Y’s needs and requested reports from relevant professional within two days. However, it did not receive these within six weeks and it took six months to get an EP report for Y. This is fault which resulted in a delay, causing further distress and anxiety to Mrs X.
59. The Council did not issue a final EHC Plan until 2 June 2023, around eight months after the statutory deadline had passed. This is fault. The delay would have caused further stress and anxiety to Mrs X, which is injustice.
60. Once the EHC Plan was issued, the provision set out was more than the temporary EOTAS package the Council agreed to. Had it completed the EHC Plan on time, Y would have been entitled to this provision eight months sooner, which is injustice.

Communication

61. From the information I have seen so far, Mrs X has had to do a lot of chasing to get responses from the Council. Calls and emails have often gone unanswered at a time when the Council knew she was already concerned about Y’s education, and this is fault. This would have caused further stress for Mrs X, which is injustice.

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Agreed action

62. To remedy the injustice identified above, I recommend the Council carry out the following actions:
63. Within one month:
• Provide Mrs X with an apology for the identified injustice.
• Pay Mrs X £500 for distress and uncertainty.
• Pay Miss X £1,600, representative of £200 per month to recognise the loss of educational provision to Y over the eight-month period of delay in finalising her EHC Plan.
64. Within three months:
• Identify the reasons for the delays and produce an action plan to demonstrate how the Council will address these to meet statutory timescales for needs assessments and annual reviews going forward.
65. The Council has agreed to these recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

66. I find fault with the Council for delays in reviewing Y’s EHC Plan and its reassessment, and in how it has communicated with Mrs X. The Council has accepted my recommendations and I have completed my investigations.

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Investigator's decision on behalf of the Ombudsman