Summary: Mrs X complained her son, Y, has not had the finance required to support his education other than at school (EOTAS) package. She said this has affected his mental health and the health of the family. There was fault in the way the Council delayed issuing Y’s final Education, Health and Care Plan (EHCP) meaning appeal rights to the tribunal were not engaged. We cannot say this caused Mrs X or Y any injustice. There was also fault due to the Council not holding the annual review within 12 months of the last review. Mrs X and Y suffered uncertainty because of this fault. The Council should make a payment to Mrs X, issue guidance to its staff to remind them to hold annual reviews and issue plans in line with legislation timescales.

The complaint

1. Mrs X complained her son, Y, has not had the finance required to support his education other than at school (EOTAS) package. She said this has affected his mental health and the health of the family.

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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. If we are satisfied with a Council’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)
4. 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.
5. 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)
6. I have exercised discretion to consider events in this case back to July 2019. I reference events prior to this for context in this matter. Mrs X said did not become aware of any concerns about the EOTAS package, until she discussed the package with others in 2022. She then complained to the Council who have since investigated her concerns.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Mrs X and the Council.
9. 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

Background information

10. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.
13. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
14. Within four weeks of a review meeting, a Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a Council proposes to amend an EHCP, 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
16. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
18. 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 EHCP 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).
19. 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.
20. This applies to all children of compulsory school age living in the local Council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

21. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
22. Y has special educational needs. He was issued an EHCP in October 2017 and it named school C as the setting. He was already attending school C.
23. Y was struggling to engage while attending school C. Throughout 2018 and early 2019 the Council consulted with three other schools, who all said they could not meet Y’s needs.
24. The Council held Y’s annual review in May 2019. The outcome of the meeting was a decision to update Y’s plan.
25. The Council discussed Y’s case at a panel meeting in July 2019. The panel discussed a request for elective home education (EHE). The Council rejected the proposal and said Y would be isolated.
26. In July 2019, Mrs X withdrew Y from school C. Mrs X explained Y was not able to engage with the school and this was impacting his health.
27. The Council consulted with another school, school D in August 2019. School D said it could meet Y’s needs.
28. The Council discussed Y’s case at a panel meeting in September 2019. Mrs X wanted Y registered as EHE. The panel had more information about Y’s needs. The Council rejected the EHE proposal, saying his needs were best met in a school and he would benefit from the peer group.
29. Mrs X employed a tutor privately in September 2019. Mrs X expressed she was very happy with the tutor and wanted the Council to fund them.
30. Mrs X spoke to the Council in October 2019. She was not happy about Y attending school D as it was so far to travel daily. The Council informed her school D no longer had a place to meet Y’s needs.
31. In November 2019, the Council awarded Y an EOTAS package and a personal budget until July 2020. Mrs X would receive money to fund the tutor and she would manage the personal budget.
32. The Council issued Y’s final EHCP in January 2020. The plan included the tutoring Mrs X sourced, and the Council funded through a personal budget. Section I of the plan detailed “an appropriate setting once identified”.
33. Mrs X spoke to the Council in May 2020 to express her concern about Y attending any educational placement from September 2020. She said the tuition was going really well, and she was concerned about the Covid19 pandemic. The Council agreed to continue funding the EOTAS package until July 2021.
34. The Council held Y’s annual review in July 2020. The Council agreed with Mrs X that Y was doing well with the tutor and agreed to increase his EOTAS package to 15 hours per week.
35. Mrs X expressed concern to the Council in April 2021 about Y returning to school in September 2021 due to the Covid19 pandemic. The Council accepted her concerns and agreed to request funding until the end of July 2022. The Council then agreed to continue the EOTAS package.
36. In January 2022, Mrs X expressed concerns the Council had not reviewed Y’s EHCP since July 2020, and concerns with communication. Mrs X also requested the Council consider funding equipment, additional funding for extracurricular activities and resources for Y’s education. The Council assured Mrs X it was working to arrange the annual review. The Council explained it would not retrospectively fund equipment and would consider the additional funding at the annual review. The Council apologised for the issues with communication. The tutor also increased the hourly rate and the Council agreed to consider this funding at panel.
37. The Council held Y’s annual review in April 2022. The review confirmed Y did not have any current setting but was supported by a tutor at home. The review raised a request for additional funding due to the increase in the tutor’s hourly rate, extracurricular activities and weekly resources costs. The panel agreed to the increase in tuition cost. It refused the extracurricular activities and the weekly resources cost. It explained the decision saying there was no reasonable rationale for the extracurricular funding as other people had to fund these. It explained the money for the tutor included resources. The plan was amended to include these changes. I have not seen any evidence the Council sent the letter to amend within four weeks with what changes would be made.
38. Mrs X again requested more funding in May 2022 and stated other children get more than Y. Mrs X then complained about the funding in June 2022. The complaint set out Y’s situation and included what Mrs X had spent money on including equipment for Y to be home educated, delayed funding, issues around communication and a delayed annual review.
39. The Council responded in June 2022. The response explained it agreed to fund EOTAS from 1 December 2019 and paid from this date. It continued it would not comment on other packages of EOTAS. The response said it was the responsibility of parents to provide extracurricular activities. The Council did accept the communication had not been good enough. The Council accepted the annual review was delayed but said it had tried to arrange a date for months, but Mrs Y had not provided any possible dates.
40. The Council continued to consult with other schools, but none were able to offer Y a place.
41. The Council issued Y’s final amended EHCP in August 2022.
42. In November 2022, Mrs X complained she had not heard back from the Council about the complaint response in June 2022. The Council said it was not aware she requested an escalation.
43. In January 2023, a support agency helped Mrs X request her complaint was escalated to stage two. Mrs X said the Council verbally agreed to fund EOTAS from September 2019 when she employed the tutor. She raised concerns about social provision specified in Y’s EHCP. Mrs X said she had spent her own money on equipment and adaptations and thought the Council should pay for these. She also stated it was reasonable to get a budget for extracurricular activities.
44. The Council responded to the stage two complaint at the end of January 2023. The response confirmed it needed to consider social groups for Y and it would do this at the annual review in March 2023. The Council said it would not fund extracurricular activities as other parents have to fund these. It also said it would not fund adaptations or equipment Mrs X purchased and then requested the Council pay for.
45. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to compensate her for the money she has spent and provide backdated funding for Y’s EOTAS package.
46. In response to my enquiries the Council stated it had dealt with all funding through the EHCP and annual review process. It confirmed it delayed completing the annual review. It explained it had tried to get a suitable date with Mrs X, but she did not respond.

My findings

47. The Council held the annual review in May 2019. The legislation sets out Council’s should issue the notification letter within four weeks of the annual review telling the family if it planned to amend, maintain or cease to maintain the plan. The legislation continues the amended plan needs to be issued without delay for comments. Following comments from the parents, the Council should issue the final EHCP as soon as practical. This must be within eight weeks of the date it sent the amendments for comment. The Council did not issue the final EHCP until January 2020, eight months after the annual review. The Ombudsman takes the view that Councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. However, I do not consider this cause any injustice to Mrs X or Y. Y had the tutor in place and Mrs X reported he was doing really well, and his needs were being met.
48. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. Mrs X arranged private tuition after she removed Y from school. The Council then agreed to fund the tutor for 10 hours per week. Education is meant to be full time unless this is not accessible to an individual. Mrs X reported how well Y was doing receiving the 10 hours per week. She did not request any increase until June 2020 when Y was able to engage with more and after her appeal rights to the tribunal were engaged.
49. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
50. The Council decided 10 hours per week was appropriate initially and it would build this up over time. The Council, in discussion with Mrs X and the tutor, decided to increase the provision to 15 hours per week. The Council confirmed this is in line with full time education provision as it is more concentrated when delivered as one-to-one. The Council has evidenced it was satisfied with the level of education provided for Y was in line with his needs and abilities. There is no fault in how the Council made this decision.
51. As explained at paragraph 18, once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the tribunal.
52. The Council issued a final EHCP in January 2020. The Council named “an appropriate setting once identified” in the EHCP. The final plan engaged Mrs X’s appeal rights to the SEND tribunal. If Mrs X was unhappy with the lack of specific placement, or the package of support detailed in the EHCP, the tribunal was the most appropriate way to challenge this decision. The courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the tribunal.
53. The Council did not complete the annual review within 12 months of the previous review in June 2021, as required by law. It did not complete the review until April 2022. It is acknowledged the Council made some efforts to arrange the annual review, but Mrs X did not initially provide suitable dates. However, the Council should have ensured the plan was reviewed within 12 months from the June 2021 meeting.
54. The annual review in April 2022, recommended changes to the EHCP. New case law, R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin), confirms council’s have to issue the letter informing people of its decision to amend the plan, along with what changes it intends to make, within four weeks of the annual review. I have not seen evidence it did this in four weeks. The only evidence I have seen is an email in July 2022 from Mrs X, mentioning receiving the draft EHCP. This is fault and added to Mrs X’s uncertainty.
55. The Council issued the amended EHCP in August 2022 and this again carried a right of appeal to the tribunal. We cannot conclude what would have happened if the Council had reviewed the plan sooner, but the delay is fault. Mrs X and Y suffered uncertainty about the plan and delayed further appeal rights.
56. However, as set out in paragraph 18, and in the rest of my findings, once an appeal right has been engaged, the Ombudsman cannot consider matters which can be dealt with by an appeal to the tribunal. The Council issued an amended plan in August 2022. The Council named “an appropriate setting once identified” in the EHCP and set out the personal budget for Y. The final plan, again, engaged Mrs X’s appeal rights to the SEND tribunal. If Mrs X was unhappy with this intended placement, or the package of support written into the EHCP, the tribunal was the most appropriate way to challenge this decision. The courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the tribunal.

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Agreed action

57. To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not holding the annual review meeting within the timescales set out in legislation.
• Pay Mrs X £300 for the uncertainty caused from the delay holding the annual review meeting.
• Issue guidance to relevant staff to ensure EHCP’s are reviewed at least every 12 months in accordance with legislation.
• Issue guidance to relevant staff of the need to issue revised EHCP’s within the timescales set out in legislation.
58. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

59. I have completed my investigation. I have found fault by the Council and this caused an injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman