Summary: Mrs X complains about delays in the education, health and care plan process and lack of communication. We find the Council was at fault. This caused significant stress to Mrs X and her son was out of education. To address this injustice caused by fault the Council has agreed to apologise, make symbolic payments and remind staff of the relevant guidance.

The complaint

1. The complainant, Mrs X, complains about delays in the education, health and care plan process and lack of communication.
2. Mrs X said as a result of this her son has been out of education.

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. 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. 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)

Back to top

How I considered this complaint

6. I considered all the information provided by Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

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 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 tribunal can do this.
9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
10. 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)
11. 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)
12. 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)
13. 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.

Participation of Young People in Education, Employment or Training statutory guidance for council’s

14. Councils have broad duties to encourage, enable and assist young people to participate in education or training, specifically these are:
• To secure sufficient suitable education and training provision for all young people in their area who are over compulsory school age but under 19 or aged 19 to 25 and for whom an Education, Health and Care plan is maintained. This is a duty under the Education Act 1996. To fulfil this, councils need to have a strategic overview of the provision available in their area and to identify and resolve gaps in provision.
• To make available to all young people aged 13-19 and to those between 20 and 25 with special educational needs and disabilities, support that will encourage, enable or assist them to participate in education or training under section 68 of the Education and Skills Act 2008.
• Tracking young people’s participation is a key element of these duties. Councils are required to collect information about young people so that those who are not participating or are not in education or training (NEET), can be identified and given support to re-engage. Robust tracking also provides the Council with information that will help to ensure that suitable education and training provision is available and that resources can be targeted effectively.

Summary of the key events

15. Mrs X’s son, B, is 17 and has an EHC plan. In June 2022 SENDIASS contacted the Council and said Mrs X was not sure B was in the right school setting. She said he had high anxiety. The Council asked what Mrs X’s educational preferences were.
16. The Council contacted B’s school. In response the school said:
• work had been sent home to B but had not been completed [Mrs X said she repeatedly asked for work to be sent home but said the school only sent work on one occasion;
• B had been on a reduced timetable for a while;
• due to entry criteria for post-16, its unlikely they could meet B’s needs. This was largely due to his attendance; and
• there had been a number of meetings Mrs X and B had not attended [Mrs X said if the school held meeting online, she attended. But said the school/council did not].
17. The school told the Council in July and September 2022 it could not meet B’s needs for post-16 education.
18. In September 2022, Mrs X told the Council B had not been back to school at the start of term. She asked the Council for help.
19. Mrs X told the Council in November 2022 it was in B’s best interest to be schooled at home with a provisional setting that suited his needs. This is so he could do his GCSEs at some point.
20. The Council asked Mrs X what provisions she was looking for. This was so the Council could consult with settings.
21. The school asked the Council in December 2022 why B had not been taken off their role. This was because they confirmed in July 2022, they could not meet B’s needs.
22. Mrs X asked the Council about holding a review. But the Council said the school would need to arrange an urgent review to discuss why B was not attending.
23. The Council asked the school to provide sufficient evidence as to why they could not meet B’s needs. It asked the school to invite Mrs X to an annual review meeting.
24. In January 2023 the Council chased the school for a response. The Council also asked Mrs X if she had any preferences for a change of placement.
25. The Council told the school Mrs X had requested a home education package and a reassessment of B’s needs by an educational psychologist. It said the school needed to request this based on a review.
26. A review was held in March 2023. It was noted Mrs X was requesting a change in provision type and requesting an education other than at school (EOTAS) package. In May 2023, on behalf of Mrs X, SENDIASS asked the Council for an update on the progress.
27. In June 2023 the Council told SENDIASS it would hold a meeting with Mrs X to discuss B. It also said it would send Mrs X its decision to amend the EHC plan letter. The draft plan was sent to Mrs X in August 2023.
28. The Council referred B to an alternative provision setting in August 2023. This was to support him to re-engage in education and develop confidence.
29. SENDIASS sent the Council Mrs X’s requested amendments to the draft plan. This included details of the EOTAS package. They said B had been off rolled by the school and asked if the Council was aware of this. Mrs X said the school did not make her aware. But the Council was also not aware.
30. SENDIASS asked the Council to refer B for occupational therapy (OT) and speech and language therapy (SALT) assessments. They also asked the Council to refer him to social care for an assessment to clarify what support could be offered.
31. The Council agreed to look into the SALT/OT assessments. It said Mrs X could request a social care assessment through the multi-agency and safeguarding hub (MASH).
32. In October 2023 SENDIASS asked for an update on the requested amendments sent and asked to discuss the education package. They said B had started the tutoring twice a week.
33. The Council said the EOTAS package was not a sufficient package. It said it needed supporting evidence that what they were asking for linked to the EHC plan and the outcomes/provision. It also said it needed to be a minimum of 15 hours of education per week for EOTAS.
34. The Council requested a quote for a SALT assessment in November 2023. SENDIASS also told the Council Mrs X was waiting on amendments to the plan to be made.

Analysis- was there fault by the Council causing injustice?

35. An annual review was held in March 2023. The Council sent its decision to amend letter to Mrs X in June. Statutory guidance states councils must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. Therefore, the delay is fault. On behalf of Mrs X, SENDIASS chased the Council for an update on this.
36. The Council sent Mrs X the draft EHC plan in August 2023. Mrs X sent in her requested amendments. But she told us the plan has still not been finalised. This is fault. The guidance states the Council must issue the final plan within eight weeks of the date of the draft. This has frustrated Mrs X’s right of appeal and caused her significant stress. This has also caused her and B uncertainty as to whether B would have received more had the plan been finalised within the timescales. As of January 2024, the Council told us an education other than at school package has been agreed and finalised.
37. B’s school told the Council in July and September 2022 it could not meet B’s needs for post-16 education. Mrs X told the Council in September 2022 B had not been back to school. She asked the Council for help. In response the Council asked Mrs X what provisions she was looking for so it could send out consults.
38. The Participation of Young People guidance states councils have a duty to secure sufficient education and training provision. It says to fulfil this, councils need to have a strategic overview of the provision available in their area and to identify and resolve gaps in provision.
39. In September 2023 after the school took B off its role, the Council asked the school to provide evidence it could not meet B’s needs. As stated above the school made the Council aware in July and September 2022 it could not meets B’s needs. We recognise that the Council did ask the school in December 2022 to provide evidence as to why they could not B’s needs. It also asked the school to arrange a review. This is because a change of placement cannot be considered outside of the statutory process. But there was a delay in the Council asking for this information. This is fault.
40. The Council referred B to tutoring in August 2023. Between September 2022 and August 2023 we would expect the Council to identify and resolve gaps in the provision as stated in paragraph 14.
41. We recognise that the Council did ask Mrs X what provisions she was looking for and asked the school to arrange an urgent review which the school delayed. But the Council remains responsible for B’s education. There is a significant delay in the Council resolving the gaps in B’s provision. This is fault.
42. The guidance also states councils are required to collect information about young people so that those who are NEET can be identified and given support to re-engage. There is a lack of evidence to support this. Therefore, during the time B was out of education, I cannot say what support was provided. This is fault.
43. In September 2023, SENDIASS asked the Council to refer B for a social care assessment. The Council said Mrs X could do this through MASH. The Council said a referral was submitted in December 2023. Following a call, it was agreed that Mrs X would wait until B turns 18 to request an assessment from adult social care. The Council said it will not undertake any further assessment until Mrs X requests one.
44. In acknowledgment of missed education, we recommend a payment per term. In this case the lack of tuition amounted to three terms. I consider an appropriate figure to be £1000. In determining this I have taken into account B received no education.

Back to top

Agreed action

45. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:

• apologise to Mrs X and B for the faults identified in this statement;
• pay Mrs X £300 to acknowledge the distress caused to her by the faults identified in this statement;
• pay Mrs X £3000 for the educational benefit of B, in recognition of the missed education which amounted to three terms; and
• write to Mrs X with an update on the progress of the EHC plan.

46. Within two months the Council has agreed to issue written reminders to relevant staff to ensure they are aware of the guidance which states:

• 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);
• 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);
• councils need to have a strategic overview of the provision available in their area and to identify and resolve gaps in provision. (participation of young people in education, employment or training statutory guidance for council’s); and
• councils are required to collect information about young people so that those who are NEET can be identified and given support to re-engage.

47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman