Summary: Ms X complained the Council failed to communicate its decision on her child’s Education, Health and Care (EHC) plan following an annual review. The Council has acknowledged it is at fault and it has agreed to our recommendations to remedy the injustice caused to Ms X and her child. The Council has also agreed to make service improvements.

The complaint

1. The complainant, who I shall refer to as Ms X, complains the Council failed to communicate with her after it reviewed her son’s, Y’s, Education, Health and Care (EHC) plan. Ms X says she has not received an amended EHC plan from the Council.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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

7. I considered Ms X’s complaint and the information she provided me with.
8. I considered the information I received from the Council in response to my enquiries.
9. Ms X and the Council were given the opportunity to comment on a draft of this decision. I considered Ms X’s comments and also the Council’s comments before making this final decision.

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What I found

Law and Guidance

Education, Health and Care (EHC) plans

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 SEND Tribunal can do this.
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
12. Relevant to this decision, within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan (Section 20 (10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).

Appeal rights

13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
14. Councils must arrange for parents and young people to receive information about mediation. (Special Educational Needs and Disability Regulations 2014) 

Elective Home Education (EHE)

15. Parents have a right to educate their children at home. (Section 7, Education Act 1996) This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
16. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
17. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
18. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.

EHE and Special Educational Needs

19. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Principles of Good Administrative Practice

20. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Ombudsman’s Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
21. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

What happened

22. Below is a summary of the key events relevant to my investigation. It is not an exhaustive chronology of every event that occurred between Ms X and the Council.
23. Y is 7 years old and in November 2019, he was diagnosed with Autism Spectrum Condition (ASC). The Council finalised Y’s first EHC plan on 26 October 2020. The Council completed an annual review of Y’s EHC plan on 22 June 2021 and issued a final amended plan on 23 November 2021. School 1 was named on Y’s plan.
24. In May 2022, Y was no longer attending School 1 as Ms X felt his needs were not being met by the setting and it was causing him severe anxiety.
25. An annual review meeting of Y’s EHC plan was held on 6 July 2022. During this meeting it was decided that Y would be referred to an Occupational Therapist (OT) and up to date assessment from an Educational Psychologist (EP) was required. The timeframes for completion of these actions were ‘ASAP’.
26. Y was taken off roll at School 1 on 13 July 2022 and became Electively Home Educated (EHE) on 20 July 2022. Ms X contacted the Council on 13 July 2022 and 20 July 2022 to advise the Council of these changes to Y’s education and also to request an update on Y’s EHC plan following the annual review.
27. By 17 August 2022 Ms X had still not received a response from the Council and so she lodged a complaint. The Council responded to Ms X’s complaint on 15 September 2022. It said School 1 had not sent the annual review paperwork and without the supporting evidence collated at the review meeting, it was unable to propose to amend Y’s EHC plan.
28. Ms X was unhappy the Council failed to address her concerns about the lack of contact from the Council in response to her emails. She also highlighted her concerns about Y’s EHC plan not accurately reflecting Y’s needs and the importance of completing the plan in a timely manner so the right support can be put in place.
29. The Council responded to Ms X’s complaint on 13 October 2022. It confirmed it had received Ms X’s emails and it apologised for not acknowledging them or responding to them. The Council said it had reminded staff of the importance of acknowledging parent’s emails.
30. The Council said it had still not received the relevant paperwork from School 1 therefore it was unable to make a decision regarding Y’s EHC plan and whether his needs would be best met at a mainstream or specialist setting.
31. The Council’s investigation into the matters Ms X complained of showed that communication from the Council’s SEN team had been insufficient and this had led to significant delays for Y. It also said that there was not enough evidence to show Y’s case had been picked up by the new case officer. The Council acknowledged that contact should have been made with Ms X about the change. The Council apologised for the standards of communication and the resulting delay in direct communication.
32. School 1 sent the relevant paperwork to the Council on 20 November 2022.
33. Ms X brought her complaint to the Ombudsman on 25 November 2022 because the Council had not resolved the matter.
34. On 28 November 2022, a senior council officer sent an email to Ms X to introduce herself as the person who will be overseeing Y’s case. The council officer acknowledged Y’s EHC plan was ‘quite out of date’. Ms X was told the Council would send an amendment notice to her and begin to amend Y’s plan following the annual review.
35. On 21 March 2023, in response to my enquiries, the Council advised that the SEND team had gone through some structural changes that resulted in Y’s case not being allocated at the time. It said that locality officers had now picked this up following receipt of my enquiries. However, Ms X has confirmed the last communication she received from the Council in relation to Y’s EHC plan was on 28 November 2022.

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Analysis

36. The annual review of Y’s EHC plan was held on 6 July 2022. The law is clear, within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. Therefore, the Council should have sent its decision notice to Ms X by 3 August 2022. The Council has failed to meet this statutory timescale. This is fault.
37. Ms X has had to wait longer than she should have for the Council’s decision. The Council has put Ms X to avoidable time, trouble and distress chasing the Council to complete the EHC plan review process. The Council’s decision would come with a right of appeal to the SEND Tribunal. The cumulative effect of these faults meant that Ms X has been unable to exercise her right of appeal to the SEND Tribunal at the correct time. I consider this delay in providing the right of appeal has caused further uncertainty for Ms X, which is an injustice in itself.
38. I consider the Council’s delay in communicating its decision, and the reasons for it, is contrary to the administrative principles set out in the Ombudsman’s Guidance. I have found the Council at fault for this.
39. The Council repeatedly did not respond to Ms X’s requests for an update on the annual review process. I note the Council has acknowledged the communication issues present in this case and this also amounts to fault.
40. Ms X experienced avoidable frustration and inconvenience when attempting to pursue a resolution, as well as avoidable time and effort in making complaints to both the Council and the Ombudsman. Had the Council responded in a timely manner, it is likely Ms X would not have needed to make a complaint.
41. While the Council has accepted these faults, they have not been fully addressed.

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Agreed action

42. To remedy the injustice caused by the faults, the Council has agreed, that within four weeks of this decision, it will:
• Provide a written apology to Ms X for the identified faults;
• Provide Ms X with the formal decision notice confirming whether it intends to cease, amend or maintain Y’s EHC plan and provide the corresponding right of appeal; and
• Pay Ms X £400 in recognition of the frustration, uncertainty, the avoidable time and trouble involved in chasing the Council and pursuing this complaint.
43. Within eight weeks of my final decision, the Council has agreed to identify and implement an improved system whereby it is able to identify when cases have failed to meet the statutory four week target, to confirm the action it is taking following an annual review and have a policy that explains what action the Council will take when the target is not met; i.e. how it will escalate such cases for further action and by whom etc;
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. The Council is at fault and it has agreed to remedy the injustice caused to Ms X and to Y and also to make service improvements. I have completed my investigation of this complaint.

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Investigator's decision on behalf of the Ombudsman