Summary: There was fault the Council delayed issuing its decision after Mr X’s son’s Education, Health, and Care plan was reviewed in 2022 and then again in 2023. Those faults caused Mr X an injustice because of a lost opportunity to appeal to the SEND Tribunal and the avoidable inconvenience he experienced. There was also fault the Council did not do enough to ensure Mr X’s son had suitable offers of education provision in good time, and this means Mr X is now left with avoidable uncertainty about whether his son missed out on education.

The complaint

1. Mr X complained about the Council’s handling of his son (B’s) Education, Health, and Care (EHC) Plan. He said the Council failed to:
1. Issue a decision after an annual review in April 2022.
2. Issue a decision after another review in February 2023.
3. Properly communicate with him about this.
4. Ensure B had adequate education provision when he stopped going to school.
2. Mr X said because the Council did not share its decisions in good time, his right of appeal to the SEND Tribunal was delayed for much longer than necessary. He also said because of this and the fact he was constantly chasing the Council for updates, the Council’s actions caused him distress. Mr X also said it significantly impacted on B’s education at a critical time in his schooling.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. I cannot investigate Mr X’s complaint about lack of provision after the point at which the Council made its decision about B’s EHC Plan in 2023. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was connected to the appeal.
10. I have exercised discretion to investigate Mr X’s complaint relating to alternative education provision while B was not attending school. I have not seen evidence the Council has responded to this aspect of Mr X’s complaint, but I am satisfied it was aware of it and had the opportunity to reply.

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How I considered this complaint

11. I spoke to Mr X and considered the information he provided.
12. I considered the Council’s comments and the documents it provided.
13. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
14. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Education, Health and Care Plan

15. 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 the council can do this. 

Maintaining the EHC Plan

16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
17. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing EHC Plans

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
19. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Appeal rights

21. There is a right of appeal to the Tribunal against a decision not to amend an EHC Plan following a review or reassessment.

Alternative provision- general section 19 duty

22. 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.
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

24. In July 2021, the Council issued a final EHC Plan for B. In 2022, B was going to a school in another council’s area. Section F of B’s EHC Plan outlined his special education provision (SEP), which included:
• One to one support through various learning tasks throughout the day;
• ongoing reviews of practical adjustments to his learning environment, and;
• regular monitoring of his emotional wellbeing.

2022 EHC review

25. In April 2022, B’s EHC annual review meeting took place. Mr X said he believed B’s special educational needs (SEN) had changed and asked for updated educational psychologist (EP) advice.
26. By July, because the Council had not issued a decision on B’s EHC Plan, Mr X complained.
27. In early August, the Council wrote back in response. The complaint response outlined the Council’s understanding of the events at the annual review. It highlighted it had agreed to increase the level of funding available to B’s school, to help support his SEN and gave Mr X advice on how the school could organise EP advice directly.
28. In late September, Mrs X sent an email to B’s SEN caseworker where she highlighted some initial concerns about B’s return to school in the new term. She said B had struggled to cope with accessing school facilities and this meant he was not attending school. Mrs X also asked for an update on the outcome of the EHC review.
29. In mid-October, Mr X sent the Council an email and made a complaint. He highlighted several areas of concern, including:
• The Council had not issued a decision following the annual review meeting;
• the Council had not responded to an earlier request for EP advice made by B’s school, and;
• several of his messages for B’s SEN caseworker had gone unanswered.
30. Mr X also highlighted because of a fall over the summer, B was now using a wheelchair full-time. Mr X said because of this and that B already had anxiety, he was no longer going to school and had been absent since late September.
31. In early November, B’s caseworker replied to Mrs X’s earlier email. In that reply, they said they were in the process of organising another annual review for B, to try and resolve the areas of concern.
32. In late November, the Council replied to Mr X’s email as a stage two complaint response. The Council apologised there had been a delay in issuing a decision, within the required 4-week period. It also apologised that B’s caseworker had not responded in the expected timescales. It upheld both of Mr X’s complaints in this respect.
33. There is no evidence the Council satisfied itself about how what education provision B’s school were delivering, including his SEP, in line with their duties at paragraph 16, after Mr and Mrs X told it B was not going to school.
34. There is no evidence the Council completed the review of B’s 2022 EHC or that it sent Mr X a decision letter after the annual review it held in April.

2023 EHC review

35. In early February 2023, B’s school held an annual review which Mr and Mrs X attended. The review meeting notes are recorded as saying that Mr and Mrs X were not seeking a change of placement, but asked for consideration of an alternative education package, which included education provision through private tutoring.
36. In March and April, the Council asked for and then sent follow on reminders, to B’s school for the annual review paperwork.
37. In late April, the Council wrote to Mr and Mrs X and told them it intended to maintain B’s EHC in its current format. The Council also said it agreed it would carry out another EP assessment.
38. Mr X appealed the Council’s decision here to the SEND Tribunal.
39. In its response to my enquiries, the Council said the cause of delays in this case was because it was not able to meet the increased demand for services around SEN. It made an offer of £200 as a symbolic remedy to recognise the distress it caused Mr X.
40. It also said it had created a new team specifically to reduce the backlog in annual review responses and improved its record keeping of those reviews that are due.

Alternative Provision / Special Education Provision

41. Mr X said the Council never responded to their notifications in late September and mid-October (paragraphs 28 and 30), that B was no longer at school. The evidence shows B’s SEN caseworker acknowledged this contact in early November, saying they were trying to organise a further annual review.
42. The evidence shows that B’s school provided education provision for B, from mid-November onwards, while he was not attending school. Mr X told me he thought it was unlikely B could have had any more provision at that point. but believed by the following February, this could be increased slightly.
43. The Council had agreed to increase this in line with Mr X’s views by the time of the February annual review, but this increase was not put in place until the start of the next school year from September onwards.

My findings

Complaint 1a)

44. For the Council to comply with statutory requirements, it should have issued a decision it was maintaining B’s EHC Plan by mid-May 2022. The Council never formally notified Mr X of this decision and gave him his right of appeal. That is fault.
45. The evidence shows the Council informally told Mr X of this decision in November and accepted this update was delayed by several months and apologised. At this point it was then considering another annual review.

Complaint 1b)

46. There was a delay in issuing a decision after the 2023 review meeting of around 6 weeks and I note in this respect, B’s school were late providing relevant information to the Council. Nonetheless, the statutory guidance places an absolute requirement on the Council and this delay is therefore fault. However, I would describe this as service failure, because despite its best endeavours, the Council was not able to issue a decision within timescales.

Mr X’s injustice because of delays

47. The faults caused by delays in both EHC reviews caused Mr X a significant injustice. Had the Council complied with its duties in the 2022 EHC review, Mr X would have had a right of appeal and he could have then challenged the Council’s decision relating to what SEP it decided B was due, including his request for EP advice.
48. The Council’s actions have caused Mr X distress through uncertainty and a lost opportunity to appeal its decisions in 2022, and then avoidable inconvenience, including having to instruct a solicitor, to follow up on the 2023 EHC review decision.
49. The Council made an offer of a remedy for Mr X’s injustice here and it has now agreed to increase this offer, to fully remedy this injustice, following my recommendation.

Complaint 1c)

50. The Council accepted it had not always responded to Mr and Mrs X’s contact in good time and it has apologised. That is fault, but I do not see there is any remaining injustice because of the actions the Council have already taken.

Complaint 1d)

51. Mrs X told the Council in late September 2022, that B was not attending school and Mr X followed this up in late October as a complaint notification. The Council did not respond to this, either to enquire about how B’s school were securing B’s SEP or consider its general section 19 duty at this stage. That is fault.
52. The Council told me B’s school arranged education provision which did not start until mid-November 2022. Mr X said this was likely all that B could manage at this point and I find this was therefore, on balance, sufficient education.
53. Both the Council and Mr X agreed B’s education provision could be increased marginally after the 2023 EHC review meeting. This was not put into place until the following September and that too is fault.

Injustice relating to education provision

54. On balance of the evidence however, I cannot say whether either of these faults at paragraph 51 and 53, meant B missed out on any education provision. I cannot say whether B would have taken up any additional provision had the Council made such an offer, either between September and November and then again between February and April, at the point Mr X had his appeal right.
55. Nonetheless, the faults will have caused Mr X a further injustice. This is because he now has distress caused by avoidable uncertainty about whether B may have been able to take up these offers, had they been made, and how that may now have affected B’s development.

Service improvement

56. Because the Council have provided me with information about steps it has taken to address some of the issues Mr X highlighted, I do not need to make any service improvement recommendations.

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Agreed action

57. Within one month of the date of my decision, the Council have agreed it will:
• Pay Mr X £500 as a symbolic payment to acknowledge the distress and loss of opportunity to appeal he had because of delays.
• Pay Mr X £300 as a symbolic payment to acknowledge his distress and uncertainty about whether B missed out on education.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation and have found fault as highlighted. Those faults caused an injustice and the Council have agreed to my earlier recommendations on steps it will take, to remedy the injustice remaining.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman