Summary: Mrs F complained about the Council’s handling of the Education, Health, and Care (EHC) plan process for her son (X) and said it did not provide all the provision he should have received. We found the Council at fault. It failed to provide the educational provision X was entitled to, caused delays in the EHC plan process and communicated with her poorly. The Council has agreed apologise to Mrs F and make payment to acknowledge the injustice she and X experienced.

The complaint

1. The complainant, whom I shall refer to as Mrs F, complained about the Council’s handling of her son’s (X) education. She said it failed to:
• secure some Education, Health, and Care (EHC) plan provision for her son for the whole of the 2022/2023 academic year;
• respond or caused delay in responding to her concerns;
• provide alternative provision when he was unable to attend his education; and
• adhere to the EHC plan process and finalise her son’s amended EHC plan within statutory timescales.
2. Mrs F said, as a result, X had a loss of educational provision, and she and X experienced distress.

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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).

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How I considered this complaint

6. As part of my investigation, I have:
• considered Mrs F’s complaint and the Council’s responses;
• discussed the complaint with Mrs F and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and guidance relevant to the complaint.
7. Mrs F 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

Relevant law and guidance

Education, Health, and Care Plans (EHC plans)

8. A young person with special educational needs may have an EHC plan. This sets out their needs and what arrangements should be made to meet them. The EHC plan is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.
9. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. The Ombudsman does recognise it is not practical for Councils to keep a ‘watching brief’ on whether schools are providing all the special education provision for every pupil with an EHC plan. The Ombudsman does consider that Council’s should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued, or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Annual reviews

11. Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan within 12 months of the previous review. An annual review is comprised of a review meeting, normally held by the child or young person’s school/college and a notice which the council sends after the meeting. The notice sets out whether the council has decided to amend the plan, maintain it without changes or cease it. The council must send the notice of its decision within four weeks of the annual review.
12. 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 (a draft amended plan).
13. 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 original EHC plan and draft amended plan to the parents. Caselaw has shown the time between the annual review meeting and final amended EHC plan should be no more than 12 weeks.
14. A parent can request an early review of an EHC plan. This may be because the child, or young person, needs had changed, or because the provision set out in their plan is no longer meeting needs. There is not right of appeal if a council refuses, but a parent can request a reassessment of their child’s needs.

Children or young people not attending education

15. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
16. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
17. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Council’s complaints procedure

18. The Council’s Policy is to acknowledge complaints within three working days. It will provide a final response to a complaint within 20 working days. In circumstances where it cannot meet this timescale, it will inform the complainant when its response will be provided.

What happened

19. Mrs F’s son (X) has a diagnosis of autism spectrum disorder (ASD) and anxiety. He stopped attending his college in Spring 2022 due to being overwhelmed by the environment and peers, which impacted his mental health.
20. In Summer 2022 the Council issued a new EHC plan for X. The plan listed an online college (the College) and set out the special educational needs provision he should receive. This included:
• mentoring support by someone experienced with supporting young people with ASD;
• a programme to teach X about social rules and interactions with peers;
• opportunities throughout the week for structured small group work and support to communicate with his peers; and
• support in identifying strategies to help him regulate his anxieties.
21. In response to the Council’s consultation, the College said it could support young people with ASD and anxiety to access an education. However, it could not offer any additional support in regards to interventions or 1:1 support. It could also not conduct annual reviews of his EHC plan.
22. X started the College in September 2022 where he received online tutoring only as part of a group.
23. A month later, Mrs F told the Council the online provision worked better for X. However, she did not believe the provision set out in the EHC plan was enough to support X. She asked the Council to arrange for an educational psychologist to assess him as she believed an annual review was due in early 2023. She also told the Council the College could not do annual reviews and asked how this would be progressed.
24. Mrs F chased the Council for responses to her request on several occasions in late 2022. The Council acknowledged Mrs F’s requests on two occasions but explained its allocated caseworker had left the Council. It said it would get back to her.
25. Mrs F again chased the Council for a response to her requests in January 2023. She explained although X had found the online format easier to manage, he was not receiving the special educational needs support set out in his EHC Plan.
26. The Council acknowledged Mrs F’s request and a new caseworker allocated to X’s case spoke with Mrs F. They discussed how some special educational needs provision could be met through mentoring or other tutoring. Mrs F said this also included a discussion about consulting another educational provider (School A).
27. By March 2023 Mrs F had not received any responses despite further requests. X stopped attending the College. Mrs F said this was because his mental health was impacted due to not receiving the special educational needs provision he was entitled to.
28. Mrs F asked the Council again to provide the provision set out in X’s EHC plan or find another placement which could meet all his needs.
29. The Council told Mrs F it had allocated another caseworker who would contact her.
30. In April 2023 the Council held X’s annual review. A month later, it told Mrs F it intended to amend X’s EHC Plan as his needs had changed.

Mrs F’s complaint

31. In May 2023 Mrs F complained to the Council about its handling of X’s education and her concerns. She said it had failed to provide the special educational needs provision set out in his EHC plan and it had failed to communicate properly with her since October 2022.
32. Two weeks later, the Council spoke with Mrs F. They discussed how educational provision could be provided to X. It also told her it would respond to her complaint, but this would take longer as it was experiencing a delay in processing complaints.
33. In June 2023 the Council told Mrs F it would consult School A which was her preference. It also said it would consult another college.
34. Mrs F told the Council she was still waiting for its complaint response. She said:
• X was not receiving the provision set out in his EHC plan and had been unable to attend the College since March 2023 due to the impact the loss of provision had on him;
• she had continuously chased the Council to review his needs and support since October 2022, but it had failed to properly communicate with her and action her concerns;
• the Council had failed to adhere to the EHC plan process as X’s annual review was due in January 2023, but it was first held three months later. This was only with the caseworker despite her requests for professionals’ input to help inform the review; and
• the Council should consult with School A without delay and finalise X’s EHC plan to ensure he had an appropriate placement for the 2023/2024 academic year.
35. The Council shared its draft EHC plan for X and sent the consultations to schools in the end of June 2023. Shortly after, School A told the Council it could meet X’s needs and agreed to be listed in his EHC Plan.
36. The Council provided its response to Mrs F’s complaint in July 2023. It said its caseworker had spoken with her in March 2023 where it had agreed an approach to deliver the outstanding provision in X’s EHC plan. It had made referrals for a 1:1 mentor but X remained on the waiting list. It also said it had since her complaint issued its draft EHC Plan and sent is consultations to schools, including her parental preference.
37. Mrs F was not satisfied with the Council’s response. She asked the Ombudsman to consider her complaint.
38. The Council issued X’s final amended EHC plan in September 2023, which listed School A as the placement where X should receive his education.
39. In response to our enquiries, the Council said:
• it first became aware mentoring support to meet X’s social, emotional and mental health needs was not being provided until February 2023. It made referrals for mentors in June and July 2023;
• the College remained available to X throughout the 2022/2023 academic year;
• it had conducted X’s annual review, told Mrs F it would amend his EHC plan, shared its draft plan and in September 2023 issued its final amended plan. It explained there was some delay in finalising the plan due to caseworker leaving the Council, the time it took School A to respond to its consultation and due peer group concerns;
• it agreed it should have arranged his annual review sooner;
• the caseload within its Special Educational Needs and Disability (SEND) team was significantly larger than it should be, but it had started recruitment to mitigate this; and
• it had apologised to Mrs F for the delays in its complaints handling. It had started recruitment of relevant staff to address this issue.

Analysis and findings

Did the Council fail to provide X with the provision set out in his EHC plan?

40. The Council issued X’s EHC plan in July 2022 which listed the College as his educational placement. The plan also set out X should receive special educational needs provision to support him with his social, emotional and mental health needs, which included a 1:1 mentor and opportunities for small group work.
41. I found the Council at fault for its failure to provide X with the special educational needs provision set out in his EHC plan for the whole of the 2022/2023 academic year. In reaching my view I am conscious:
• the College may have been an appropriate educational placement for X. However, it told the Council it could only provide tuition and would be unable to provide any 1:1 support or interventions;
• the Council did not provide any mentor and opportunities to engage with peers through a supportive programme from September 2022;
• X attended the College’s online provision from September 2022, but started to struggle to engage with it from October 2022 and became unable to attend in March 2023 due to the lack of special educational needs provision;
• Mrs F told the Council in October 2022 she was concerned the EHC plan was not meeting X’s needs and asked the Council to arrange for an educational psychologist to assess X’s needs and review his EHC plan;
• the Council did not respond to Mrs F’s request for professional’s input in the annual review, nor did it meet with Mrs F and the College to ensure X received the provision set out in his EHC plan; and
• when the Council did discuss X’s educational needs with Mrs F in early 2023, no support was put in place. It took until Summer 2023 for the Council to make referrals for mentoring support, which never took place.
42. The Council did not have a duty to provide alternative provision from March 2023 for X when he became unable to attend his education with the College. This is because he was no longer of compulsory school age. However, it continued to have a duty to ensure X received his education and special educational needs support as set out in his EHC plan.
43. I found X was unable to engage with the education available to him from March 2023 due to the Council’s failure to provide him with the special educational needs support set out in his EHC plan.
44. I acknowledge the Council did make a tuition referral, but no tuition was put in place. X therefore received no meaningful education for the rest of the academic year. This was fault, which caused X a loss of education for a five-month period.

Annual review of X’s EHC Plan

45. The annual review of X’s EHC plan was due 12 months after his last EHC plan was finalised. The deadline was therefore July 2023, and the Council held X’s annual review in April 2023.
46. However, Mrs F told the Council X’s needs had changed and the College was unable to meet his needs in October 2022. She continued to raise her concerns in early 2023 and told the Council he was not receiving the support set out in his existing EHC plan.
47. In response to our enquiries the Council acknowledged it should have held X’s review sooner. I agree with the Council’s view. This was therefore fault. I found it should have held X’s annual review by January 2023.
48. I also found the Council at fault for:
• its failure to consider and respond to Mrs F’s request for an educational psychologist assessment in late 2022; and
• its failure to adhere to the statutory timescales for the EHC plan process. This is because it should have finalised X’s EHC plan by the end of June 2023, which was 12 weeks after the annual review. However, it took the Council a further two months to finalise the plan.
49. I am satisfied Mrs F experienced distress due to the uncertainty this caused, and her right to appeal any disagreement about the EHC plan was delayed.

Council’s communication with Mrs F

50. Mrs F complained the Council had failed to respond to her concerns and communicated with her poorly.
51. The evidence shows Mrs F had to continuously chase the Council for any responses to her concerns or requests for X’s case throughout the academic year. Including its complaints response.
52. I understand the Council experienced staffing issues within its SEND team and allocated caseworkers to X’s case left the Council. It also had a high demand on its complaints handling team which caused delays in its processing of complaints.
53. The evidence shows several caseworkers were involved with X’s case for short periods and actions were not progressed. This meant its communication with Mrs F was poor and there was little or no progress on X’s case. This was fault.
54. The Council’s complaints handling was also delayed by six weeks. The Council informed her in line with its policy its response would be delayed.
55. I am satisfied the Council’s poor and delayed communication caused Mrs F further unnecessary distress and a loss of trust in the Council’s ability to resolve her concerns.

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Agreed action

56. To remedy the injustice the Council caused to Mrs F and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs F and X, and pay her £400 to acknowledge the distress and uncertainty the Council’s faults caused her;
2. pay Mrs F to use as she sees fit for X’s benefit:
1. £2,000 to acknowledge the loss of special educational needs provision X did not receive as set out in his EHC plan in the 2022/2023 academic year; and
2. £2,400 to acknowledge the loss of education X experienced from March 2023, when he could no longer access his education, until the end of the academic year.

In total the Council should pay Mrs F £4,800.

57. Within three months of the final decision the Council should also:
1.  
2.  
3. share with the Ombudsman an update on the Council’s recruitment to its Special Educational Needs and Disability team and its Complaints team to address its staffing shortfalls and increased demand;
4. review how the Council ensures its Special Educational Needs and Disability team’s casework is progressed and actioned without delay when staff leaves, or it experiences staff shortages. This is to ensure it actions and responds to requests and complaints from parents of children, or young people without delay; and
5. review how the Council ensures all special educational needs provision are put in place for children, or young people, as set out in their Education, Health, and Care plans. Including in circumstances where the educational placement can only offer tuition. This should be confirmed when a placement starts, during annual reviews and when issues are reported to the Council.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. There was fault which caused Mrs F and X and injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman