Summary: The Council is at fault for failing to issue Y’s final Education, Health and Care plan following an annual review meeting in October 2022. This caused avoidable frustration due to a delay in appeal rights, but no loss of educational provision because the Council offered alternatives which Mrs X rejected. The Council will apologise, make Mrs X a symbolic payment and issue Y’s final plan.

The complaint

1. Mrs X complained the Council failed to provide education for her child Y since November 2022. She also complained about delays completing the annual review of X’s Education Health and Care plan (EHC plan) and about poor communication.
2. Mrs X said this caused a loss of educational provision, avoidable 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 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. 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)
5. 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

How I considered this complaint

6. I considered the complaint to us, the Council’s response to the complaint and documents in this statement. I discussed the complaint with Mrs X.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements 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.

9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance:
1. 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)
2. Where a council proposes to amend an EHC plan, 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)
3. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
10. 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

11. Y has special educational needs and an EHC plan of March 2022 naming College A as her placement from September 2022 when she went into Year 13.
12. There was an annual review held by College A on 31 October 2022. The review report noted Y had not enrolled in College A and had no intention of doing so. She was currently not in education, training or employment. Mrs X said Y’s mental health was fragile and College A was unsuitable for her. She wanted Y to attend School B but this placement said it could not meet Y’s needs. The minutes of the review said Y could not interact with others, was socially isolated and had high anxiety. Y liked animals and Mrs X considered an animal-based education setting with therapists would be appropriate for Y.
13. The Council wrote to Mrs X on 28 November saying it had decided to amend Y’s EHC plan. The letter explained an assessment and reviewing officer would consider the changes recommended in the annual review report and would send her an amendment notice detailing the changes.
14. The Council issued an amendment notice on 20 January 2023, also enclosing a copy of the annual review minutes. It asked Mrs Y to send any proposed changes to the plan within 15 days.
15. The Council issued updated amendment notices on 2 March and 19 April. To date it has not issued a final EHC plan for Y.
16. Mrs X contacted us to complain in June 2023. We sent the complaint back to the Council for a response.
17. The Council apologised in its complaint response and said:
• It noted during the annual review that Y had not enrolled in college and had been out of education.
• It decided to amend the EHC plan and sent an amendment notice in January and made further amendments in April. It accepted there were delays completing the review and confirming the placement.
• Mrs X had refused temporary tuition for Y
• The Council made a referral to Somerset Works
• It accepted further discussion about interim provision should have taken place
• It accepted communication was poor and there was a delay in allocating the case to a different officer. Another officer had been allocated and would be in touch at the end of June to discuss the case.
18. At the start of August, the SEND officer emailed Mrs X with a list of five alternative providers specialising in education with animals and/or outdoor education. The email gave links to the providers’ websites. The Council told me the intention was to build an interim bespoke package for Y using a combination of these providers and it would have ensured there was provision for 15 to 20 hours a week.
19. Mrs X replied to the SEND officer’s email saying she would look at the providers and get back to the SEND officer. Mrs X went on to say she wanted Y to have a place at School D.
20. Mrs X emailed the SEND officer at the end of August saying she had looked at the providers. She said they could not offer what Y needed. She asked about School D. The SEND officer replied saying the school had no places. The SEND officer said the alternative providers could be a temporary measure until the Council found a placement. Mrs X said Y needed full-time education in a school.
21. At the end of September, the SEND officer emailed Mrs X and Reach saying the Council had agreed funding for two sessions a week at Reach.
22. The Council told me it had sent consultations to five schools/colleges including Mrs X's preference, but there were no positive responses.

Was there fault?

23. The Council should have sent the annual review report and a decision notice within four weeks of the annual review, so by the end of November 2022 – which it did.
24. The Council’s decision notice said it intended to amend Y’s EHC plan. So, it should have sent the amendment notice at the same time as the decision. It did not do so until 20 January 2023 which was a delay of six weeks and was fault.
25. The Council should have completed the annual review process by issuing a final amended EHC plan within eight weeks of the amendment notice. The Council is yet to issue a final EHC plan. This is fault. The Council had negative responses to consultations, but it could have issued a final plan without a placement or with one of the alternative education providers it had identified as temporary provision. This would then have given Mrs X her appeal rights if she disagreed with the placement.
26. Ms X said in the annual review meeting in October 2022 that she wanted an animal-based therapeutic provision for Y. There is no evidence the Council took any steps to progress this until August 2023. The Council accepted in the complaint response that this delay was unacceptable. This was fault.
27. The Council accepted its communication with Mrs X was poor and has apologised. Poor communication is fault.

Did the fault cause injustice?

28. The lack of a final EHC plan delayed Mrs X’s right of appeal to the SEND Tribunal which caused avoidable distress and frustration. As did the poor communication. I do not conclude that the failure to amend the EHC plan in line with the SEND Code of Practice caused Y a loss of educational provision because, Y had an educational placement available in the EHC plan in force, at College A, although she has not attended. I do not consider the delay in offering the animal-based alternative providers caused any injustice, because the records show Mrs X refused this when the Council eventually offered it.

Back to top

Agreed action

29. The aim of our remedies is to try and put the people affected into the position they would have been, had the Council handled the case with no fault.
30. Within four weeks of my final decision, the Council will:
• Issue Y’s final EHC plan. This will give Mrs X a right of appeal if she disagrees with the placement named in Section I or any other sections of the plan; and
• Apologise for the avoidable frustration and distress caused by poor communication and by the delay in appeal rights and make Mrs X a symbolic payment of £150.
31. There are no grounds for a payment for missed provision because the Council offered temporary provision and there was a placement available for Y. Although the offer of temporary provision was late, Mrs X refused it.
32. The Council should provide us with evidence it has complied with the actions in paragraph 30.

Back to top

Final decision

33. The Council is at fault for failing to issue Y’s final Education, Health and Care plan following an annual review meeting in October 2022. This caused avoidable frustration but no loss of education provision because the Council offered alternatives which Mrs X rejected. The Council will apologise, make Mrs X a symbolic payment and issue Y’s final plan.
34. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman