Summary: The Council avoidably delayed reviewing Ms X’s son, G’s, Education Health and Care (EHC) Plan by more than a year. It then significantly delayed in finalising G’s EHC Plan following the annual review and delayed confirming its decision regarding G’s education placement. In recognition of the periods of uncertainty, frustration and distress caused by these faults the Council has agreed to apologise, pay Ms X £600 and carry out service improvements. It has also agreed for this case to be considered by the Council’s education scrutiny committee.

The complaint

1. Ms X complained that between February 2022 and October 2023 the Council significantly delayed reviewing and finalising her son, G’s, EHC Plan.
2. Ms X said as a result, for much of this period, G received education which was unsuitable for his needs and was based on out-of-date information. Ms X said this caused her and her son a period of significant distress and frustration.

Back to top

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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

What I have and have not investigated

7. I have exercised discretion to look back at events from March 2022 onwards, despite these happening more than a year before Ms X complained to us.
8. Usually we cannot investigate late complaints for the reasons set out in paragraph four. However, Ms X could not have known the extent of G’s annual review delay until after March 2022. Therefore I have used discretion to look back at slightly earlier events.

Back to top

How I considered this complaint

9. I considered the information provided by Ms X and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered comments made by Ms X and the Council on draft decisions before making a final decision.

Back to top

What I found

Law and guidance

EHC plans and annual reviews

13. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
14. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC Plans must be reviewed as a minimum every 12 months;
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC Plan as it is, amend the Plan or cease to maintain it, and notify the child’s parent or young person and the educational setting;
• if amending the Plan, councils must send the child’s parent or the young person a copy of the existing Plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes;
• councils must issue the amended EHC Plan as quickly as possible after receiving comments and within eight weeks of the original amendment notice.
15. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

SEND Tribunal

16. 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.
17. 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. 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.

Section 19 or alternative provision

18. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
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. Ms X’s son, G, has a neurodevelopmental condition and has an EHC Plan. During the period I am investigating he attended a specialist school, School A.
22. Ms X complained to the Council on 10 January 2023. She said G’s EHC Plan should have been reviewed by 9 March 2022 and ten months later, a review still had not taken place. Ms X also complained G was struggling with several issues at School A.
23. The Council responded to Ms X’s complaint in February 2023. It said it did not agree that her son was struggling, as the school said G was making expected progress. However, it agreed it had failed to carry out a review of G’s EHC Plan within the statutory timeframe. It said it could carry out an annual review on 27 March 2023.
24. By this time, up to date assessments from an occupational therapist and an educational psychologist were soon to be underway. Ms X asked that the annual review meeting not be held until these reports had been issued as they may determine what the Council should put in G’s EHC Plan.
25. The Council agreed to delay the annual review meeting. Once the reports had both been issued, the annual review meeting was held on 3 May 2023.
26. At the annual review meeting, the school said it was concerned that it could no longer meet G’s needs. It decided there had been an “evidenced significant change” in G’s needs and a different educational placement should be considered. Ms X agreed with this.
27. Shortly after the annual review, G stopped attending school due to distress associated with attending the school. The school set up a plan to reintegrate G back into the school but this was not successful.
28. The Council received the annual review paperwork from the school on 8 June 2023 after chasing this several times. The school said it was waiting to get reports back from professionals before providing the notes. However, the Council said it could not wait and needed to process the annual review as it was already late.
29. On 12 June 2023 the Council wrote to Ms X to say it intended to amend G’s EHC Plan but did not provide any details of its amendments. Instead, it said it would send her a proposed, amended EHC Plan for her comments “as soon as possible”.
30. By the end of June 2023, Ms X told the Council the reintegration plan had not worked and asked for tutoring to be put in place.
31. Ms X chased the Council again several times in July 2023. She raised concerns about not having received the draft EHC Plan. She asked how the Council could begin consulting for other education placements when no up-to-date draft or final Plan had been issued. She also said the reintegration plan was not working and alternative education should instead be put in place.
32. In mid-July 2023 the SEND team approached its commissioning team to ask for tutoring to be put in place for G, following Ms X’s request. However, emails from this time show disagreement within the Council regarding whether the Council had a duty to provide alternative (section 19) education for G.
33. The Council decided that the school could adapt its curriculum to meet G’s needs and Ms X had chosen not to accept the suitable full-time education offered by the school. Therefore, it said it was not under a section 19 duty and did not put in place any alternative education for the coming September. However, the Council did not formalise this decision by naming School A in the final EHC Plan.
34. In September the Council received the outcome of a mental health assessment for G which supported that School A was no longer suitable for him. It decided from this point that G required section 19 alternative provision. By that time School A had arranged home-based tutoring for G starting in late September. The Council decided this tutoring was suitable provision until it could find an alternative placement for him.
35. The tutoring was arranged for three hours each day. However, the tutor was not trained in administering the emergency medication G may need, which was a requirement of his EHC Plan under Section F. As a result, Ms X could not leave G with the tutor unattended.
36. The Council finalised G’s EHC Plan on 9 October 2023, almost 23 weeks after the annual review meeting. It named School A in Section I but specified that from November 2023 he would attend a different specialist school, School B.
37. Ms X used her right of appeal to the SEND Tribunal as she said the Council had not used up to date professional reports in producing the EHC Plan. However, she agreed with the placement named in Section I and did not appeal against this.

My findings

Annual review delay

38. The Council should have held an annual review of G’s EHC Plan by 9 March 2022. It accepted fault for not doing this within the statutory timeframes and instead held the annual review almost fourteen months later, on 3 May 2023.
39. Once alerted to its delay by Ms X’s complaint, the Council initially offered to begin the annual review process on 27 March 2023. However Ms X asked for it to be postponed until 3 May 2023 to allow time for several professionals’ reports that were scheduled. As the Council was complying with a direct request from Ms X, I have removed this period of five weeks from my calculation of the total avoidable delay by the Council.
40. Therefore the total avoidable delay, beyond the statutory timeframe, that it took the Council to review G’s EHC Plan in this case was 55 weeks (more than twelve months late). This delay was fault and caused Ms X a significant period of avoidable uncertainty and frustration.

EHC Plan delay

41. Following the May 2023 annual review, the Council should have issued a proposed, amended EHC Plan for Ms X’s comments within four weeks. It then should have issued a final EHC Plan within twelve weeks of the annual review meeting. Instead it took the Council almost sixteen weeks to issue a draft Plan and almost 23 weeks to issue the final Plan.
42. During this time Ms X chased the Council repeatedly for details of how it proposed to amend G’s EHC Plan. The records show Ms X was unclear on what the Council’s plan was for her son’s education after he stopped attending school.
43. These delays in finalising the EHC Plan were fault by the Council and caused Ms X a period of frustration and uncertainty, particularly as during this time her child was not attending school.

Drift in decision making regarding G’s education

44. At the May 2023 annual review, the school told the Council it could no longer meet G’s needs and said the Council should seek a new education placement for him. Ms X agreed with this.
45. The Council disagreed with this. Internal records show the Council considered the school was still suitable for G and Ms X had elected to take her child out of education. Ms X asked for an alternative education placement or for tutoring to be put in place and the Council did not agree that it was under a duty to provide this as it had decided a suitable school place was available.
46. In September 2023, due to receiving new medical evidence, the Council changed its mind and decided it did owe a section 19 duty to provide G with alternative education. By the end of September, the school put in place part-time tutoring for G to access from home and the Council consulted a new specialist school. G started there in November.
47. If the Council was satisfied before September 2023 that G’s school was suitable, it should have named the school in G’s EHC Plan within the statutory timeframe. Then Ms X could have used her appeal right to the SEND Tribunal to resolve any disagreement over the placement. The Council avoidably delayed making this decision and this was fault.
48. I cannot say were it not for this fault, what education would have been suitable and accessible to G at this time due to his health. However this fault has caused uncertainty to Ms X about whether her son could have had a different educational experience during this time.

Suitability of tutoring

49. Once the Council decided it needed to provide alternative provision to G, the school had already put in place tutoring which the Council decided was suitable. This tutoring was in place for a few weeks before G began at his new school.
50. However the tutor was not trained in administering G’s emergency medication which was a requirement of Section F of G’s EHC Plan. The Council failed to deliver what was in Section F of G’s EHC Plan. This fault caused Ms X frustration as she could not leave G with the tutor unattended.

Previous cases upheld by the Ombudsman

51. Ms X also raised complaints in 2021 about delays in progressing annual reviews and EHC Plans for her children and the Council provided us with evidence that it had carried out service improvements in response to these.
52. However despite the Council providing us with evidence that these service improvements were carried out, the same faults have been repeated again in this case. I have considered this when making my service improvement recommendations below.

Scrutiny committee

53. The Council’s education and children’s services scrutiny committee recently considered a report from local parent carers on key issues the residents wanted the Council to improve in relation to SEND.
54. In response, the Council’s SEND department produced an action plan. The Council’s progress in meeting the targets in the action plan will be monitored by this scrutiny committee.
55. The parent carer’s report identified concerns regarding the quality and timeliness of EHC Plans. However the Council’s action plan does not yet contain any clear targets setting out how it will reduce the number of EHC Plans which are not reviewed and finalised within the statutory timeframes.
56. This is one of the areas where the Ombudsman most often finds fault leading to injustice for parent carers and young people. Therefore I have made a recommendation regarding this below.

Back to top

Agreed action

57. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case;
2. Pay Ms X £600 to reflect the periods of uncertainty, distress and frustration caused by the Council’s unclear decision making and its significant delays in reviewing and finalising G’s EHC Plan;
3. Demonstrate that it is taking action to make clearer for its SEND officers when EHC Plans are scheduled for review, when draft and final plans are due to be issued and consider how it can improve its systems for checking that these are being completed to deadlines; and
4. For the reasons set out in paragraphs 54-57, share this decision with the Council’s education and children’s services scrutiny committee to identify any gaps in the Council’s existing action plan regarding its delays in reviewing and finalising EHC Plans.
58. Within three months of the date of the final decision, the Council should remind all its SEND staff of the following:
1. EHC Plans must be reviewed at a minimum every twelve months;
2. When the Council decides to amend an EHC Plan it must issue an amendment notice, alongside a draft, amended Plan for the parent or young person’s comments, within four weeks of the annual review meeting. Until Government introduces new legislation on this – at it has indicated it may do – the current case law remains in force; and
3. The Council must issue a final EHC Plan and tell the parent or young person of their appeal rights, within eight weeks of the amendment notice. Delay in doing so can frustrate or prevent the parent’s right to appeal to the SEND Tribunal and causes avoidable uncertainty and frustration.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

60. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, make a financial remedy, carry out service improvements and present this case to a scrutiny committee.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman