Summary: Mrs X complained the Council is failing in its corporate duty to provide Mr Y with a suitable education. The Council’s delay in the EHC Plan review process and the lack of clarity and poor communication regarding the decision not to fund private assessments are fault. This fault has caused Mr Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council is failing in its corporate duty to provide Mr Y with a suitable education. Mrs X specifically complains:

• there have been delays and failings in the EHC Plan review process; and
• the Council, as corporate parent, has wrongly refused to fund the cost of private ASD/ ADHD assessments.

2. As a result Mr Y’s EHC plan is inaccurate and he is missing out on specialist support.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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. 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.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. Mrs X complains the Council has not reviewed or updated Mr Y’s EHC plan since 2019. However, my investigation only focuses on events since 2022. Mrs X contacted the Ombudsman in July 2023 so we will investigate events in the previous 12 months. It was open to Mr Y or his advocate to raise concerns about a lack of annual EHC Plan reviews prior to 2022 at an earlier stage.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• 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

Education Health and Care plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
12. Councils must review EHC Plans as a minimum every 12 months. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
13. Within four weeks of a review meeting, a council must notify the young person/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)
14. 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)
15. 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)
16. 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 here

17. Mr Y has been a child in the Council’s care for many years. Mrs X is his advocate. Although Mr Y now lives in a neighbouring county, as he is a looked after child and is on roll at a school in Devon, the Council maintains his EHC Plan.
18. Mrs X is concerned the Council has not reviewed Mr Y’s EHC Plan annually and that it does not reflect his needs. Mr Y would like the Council to fund Autism and ADHD assessments so that his EHC Plan accurately reflects his needs.
19. The Council’s records show Mr Y’s parents requested an autism assessment at a Child in Care review meeting in March 2022. The report following a Child in Care review meeting in May 2022 notes that an autism assessment request had been made, but does not confirm who made the request, when, or to whom.
20. Mrs X says the registered manager at Mr Y’s care home (Ms Z) made the referrals to CAMHS who responded that they would not be a suitable service. CAMHS recommended a further Occupational Therapist (OT) assessment and an Autism assessment through the Single Point of Access (SPA) at the council where Mr Y lives.
21. The Council also held an interim EHC Plan review in March 2022. It is unclear who attended the review meeting. The review report recommends amending the Plan and notes Mr Y was not attending school consistently. The Council wrote to Mr Y’s social worker on 30 March 2022 confirming the Plan would be amended to include recommendations from Mr Y’s school. The Council then issued an amended EHC Plan on 18 July 2022.
22. A further EHC Plan review then began almost immediately. The Plan review report again recommends the Plan is amended. It notes Mr Y had settled in at the care home and had started to access his tutor but was not accessing full time education.
23. The records of a Child in Care review meeting in September 2022 note that Mr Y did not want to return to school but was attending alternative provision and had a private tutor. The record also notes the Council will write a new EHC Plan and that a Personal Education Plan (PEP) meeting would take place in a couple of a days. The Independent Reviewing Officer (IRO) recommended the PEP meeting consider whether there was any further action that could be undertaken to make sure the agreed OT and Speech and Language Therapy (SALT) assessments were undertaken.
24. There is no reference in the records of the PEP meeting in September 2022 of any discussion regarding the OT and SALT assessments.
25. Ms Z made a referral to the SPA for an Autism assessment in September 2022. Mrs X says the social worker was supposed to do this, but as they had not, Ms Z made the referral. The SPA advised there was a 16 month wait for assessments.
26. The Council wrote to Mr Y’s social worker in October 2022 confirming that following the review in July 2022, it intended to amend Mr Y’s EHC Plan. It noted Mr Y had attended less than 50% of his school placement. And that the school had put in alternative provision which Mr Y was engaging with more than his current school offer. The Council said it would use the review to consider alternative education provision for Mr Y.
27. At that time, Mr Y was attending alternative provision sessions on Mondays, Tuesdays, Thursdays and Fridays and had private tuition on Wednesdays.
28. The Council says it shared a draft amended EHC Plan in early December 2022, but I have not received a copy of this draft Plan or confirmation of who it was sent to.
29. The Council asked the Education Psychologist (EP) for an updated report. The EP visited Mr Y on 13 December 2022 and produced a report in January 2023. The Council says the report was carried out to support Mr Y’s reintegration to school rather than an assessment of his levels. The EP report said Mr Y required a bespoke package of support for his educational needs. And that the most appropriate way forward would be to develop the provision at the setting he was successfully engaging with so he could build his core skills.
30. Ms Z identified that private Autism and ADHD assessments would cost around £3000 and in February 2023 asked the Council to fund this. I have not received any record of a response.
31. The records of a Child in Care review meeting in March 2023 note that Mr Y was on a waiting list with CAMHS for an Autism assessment and that the Council had decided it would not fund an independent assessment. The records also note that Mr Y was not engaging with his private tutor. His preference was to attend school for Maths and English lessons to work towards gaining GCSEs and to continue with the alternative provision sessions.
32. The IRO recommended a meeting to ensure the revised EHC Plan was finalised so that the school provision could be put in place. This meeting would also consider further action that could be undertaken to progress the Autism, OT, and SALT assessments. I have not received any records of a further meeting.
33. The Council issued a final EHC plan in late March 2023. The Plan does not name an educational placement.
34. Mrs X made a formal complaint in March 2023 that the Council was failing in its corporate duty to provide Mr Y with access to suitable education. She also complained it was not providing the necessary assessments to support Mr Y’s learning. Mrs X requested the following outcomes:
• for Mr Y to have an Autism/ ADHD assessment by the end of the academic year;
• for Mr Y’s EHC Plan to reflect that both the EP and CAMHS say Mr Y needs specialist provision to meet his needs and that several professionals recognise a mainstream school would not be the right environment for him; and
• for provision to be in place for the start of the academic year in September 2023 so that Mr Y has the best opportunity to gain qualifications and move onto college with the necessary support in place.
35. The Council responded in April 2023. It confirmed the Council would not complete the Autism/ ADHD assessment. A request had been made to the local council where Mr Y resides and he was on the waiting list to complete this. It said it had considered and declined the request to fund this privately as Mr Y’s needs were well noted in his EHC Plan and the diagnosis does not affect the provision in place.
36. In addition the Council noted Mrs X and Mr Y had attended an Education Planning Meeting, overseen by Social Care and Education where it was decided that staying on roll at Mr Y's mainstream school was the most suitable plan for his education. The school had put in full time alternative provision, some of which Mr Y engaged with and some he did not. The Council noted Mr Y had recently requested to go back to the school to complete his English and Maths and engage partly on site alongside his alternative curriculum offer.
37. The Council also confirmed it would consider amendments to Mr Y’s EHC Plan in the Spring term of 2024 when looking to finalise naming post-16 provision.
38. In June 2023 Mr Y asked his social worker to explain why the Council, as his corporate parent, would not fund the Autism and ADHD assessments. He noted the recent reviews identified he needed these assessments and also would benefit from a SALT assessment and an OT assessment. As the NHS waiting times for these assessments was over a year they would not be in place for his final year of secondary education or possibly his post 16 college.
39. Mr Y acknowledged the assessments were expensive but asserted that as a looked after child he should receive the same opportunities as any child might. He asked the Council to treat him in the same way any parent would treat their child and to revisit his request for funding of these assessments.
40. Mrs X says the Council refused the request without properly considering it. She says the social worker told Mr Y that lots of children need assessments and the Council cannot pay for all of them. Mrs X and Mr Y are unhappy the Council did not consider Mr Y’s specific circumstances and needs.
41. The Council has not provided details of its response, any records of its consideration of Mr Y and Ms Z’s requests for an autism assessment or an explanation for why the requests were refused.
42. Mrs X and Mr Y were not satisfied by the Council’s response and have asked the Ombudsman to investigate their complaint.
43. In response to my enquiries the Council says Mr Y’s EHC Plan has been updated to reflect the support he needs in school and will continue to be updated to reflect any changes in support he needs when he starts college. It says Mr Y’s support in education will not change whether he has a diagnosis or not. His support needs are based on how he specifically presents and manages in education, which is not dependent on having any diagnosis.
44. The Council has also reiterated that Mr Y has been accepted onto the waiting list for Autism and ADHD assessments.
45. Since Mrs X complained to the Ombudsman, Mr Y has had an initial consultation with an OT who developed a sensory plan for Mr Y to trial. Ms Z told the Council the OT felt the Autism and ADHD assessments were crucial to understanding whether Mr Y’s difficulties were due to sensory processing or an underlying diagnosis of Autism or ADHD.
46. The Council has also carried out further review of Mr Y’s EHC Plan. The Council issued a draft plan in October 2023 and a final EHC Plan on 13 November 2023. Mr Y has rights of appeal in relation to this Plan.

Analysis

47. Legislation and Government guidance set out a clear procedure and timeframe for carrying out an annual review of an EHC plan. The documentation provided shows the Council did not follow this procedure or meet this timeframe. The Council must notify the young person and their parent of the decision to amend the EHC Plan and what the proposed changes are within four weeks of the annual review meeting. The final EHC Plan must then be issued as soon as practicable and within a further eight week maximum.
48. The Council started the review process on 18 July 2022, this means the Council should have sent Mr Y the final amended EHC Plan by 10 October 2022 at the latest. But it did not notify Mr Y’s social worker it intended to amend the Plan until 10 October 2022 and did not issue a final amended EHC Plan until 29 March 2023. This is a significant delay and is clearly unacceptable.
49. The Council’s failure to follow the correct procedure and meet the required timeframes is fault.
50. If Mr Y is unhappy with the content of his EHC Plan, he can appeal to the SEN Tribunal. We cannot direct changes to the sections of the Plan about Mr Y’s needs, education, or placement.
51. It is not the Ombudsman’s role to determine whether the Council should fund Mr Y’s Autism and ADHD assessments. This is a decision for the Council. We would however expect there to be a record of how the Council considered Mr Y’s request and the reasons for its decision. While it is clear the Council has refused to fund these assessments, there is no record of how, or who at the Council considered Mr Y’s request. Nor is there a clear record of the reasons for the decision not to fund these assessments. The Council has not provided any evidence it explained its decision to Mr Y.
52. I consider the lack of clarity and poor communication around the Council’s decision not to fund the assessments amounts to fault.
53. Having identified fault, I must consider whether this had caused Mr Y an injustice. The lack of clarity and poor communication around the Council’s decision not to fund the assessments will have caused Mr Y frustration, distress, and uncertainty. As will the delay in amending Y’s EHC Plan following the annual review in July 2022. This also delayed Mr Y’s ability to exercise his right of appeal to the SEND tribunal in relation to the content of the plan.
54. Mr Y has not exercised his right of appeal and there appears to have been some confusion and uncertainty amongst those supporting Mr Y about these appeal rights.

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Agreed action

55. The Council has agreed to:
• apologise to Mr Y for the delay in the EHC Plan review process and for the lack of clarity and poor communication regarding the decision not to fund private assessments.
• pay Mr Y £300 in recognition of the frustration, uncertainty and distress he has experienced as a result of the failings in the Council’s service.
• issue written reminders to relevant staff to ensure they are aware of and adhere to statutory timescales regarding the issuing of final EHC Plans after an annual review.
56. The Council should take this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

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Final decision

57. The Council’s delay in the EHC Plan review process and the lack of clarity and poor communication regarding the decision not to fund private assessments are fault. This fault has caused Mr Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman