Summary: Mrs Y complained about the way the Council dealt with her child’s Education, Health and Care Plan and special educational needs provision. We have found fault by the Council in failing to: make all the provision in the Plan; complete the annual review process within the statutory timescales; and complete the agreed action plan for resolving Mrs Y’s complaint. These faults caused injustice. The Council has agreed to remedy this by apologising to Mrs Y, making payments to recognise the impact of the missed provision and distress caused, taking steps to complete the review process and a service improvement.

The complaint

1. The complainant, who I am calling Mrs Y, complains the Council failed to:
1. provide her child, who I am calling Z, with the education and special educational needs (SEN) support in their Education Health and Care Plan (EHC Plan);
2. follow the proper process within the required timescales to complete the annual reviews, amend and finalise Z’s EHC Plan; and
3. complete the action plan set out in its complaint response. The Council agreed to identify suitable alternative provision and make a transition plan for Z by 31 May 2023. It did not do this.
2. The Council has still not issued Z’s final amended EHC Plan. This means they have no appeal rights. Mrs Y wants the Council to issue the final amended plan without any further delay, setting out Z’s educational provision and naming the new provider.

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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.
4. 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. 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)
6. 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.

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How I considered this complaint

7. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
8. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

9. A child or young person with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
10. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
11. 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.

Arrangements for reviewing an EHC Plan

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This says a council must review an EHC Plan at least every 12 months.
13. And, within four weeks of a review meeting, the council must:

• notify the child’s parent or young person 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); and
• where it proposes to amend an EHC plan, it must send the child’s parent or 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)

14. If the council decides to continue to make amendments, following comments from the child’s parent or young person, 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)

15. 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

16. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

17. Z is a young person with special educational needs and has an EHC Plan. For some years College Q was named in the Plan as their residential educational placement.
18. In January 2021 College Q said it could no longer meet Z’s needs.
19. In April 2021, the Council issued Z’s final EHC Plan naming College Q as their placement.
20. Z continued to attend College Q as a full-time day student until July 2021.

Academic Year: September 2021 to July 2022

21. College Q arranged a part-time package for Z, three days a week, from September 2021 to July 2022. This was delivered to Z at their home and focused on life skills and transition to adulthood rather than education.
22. The Council held an annual review meeting of Z’s Plan in January 2022.
23. College Q’s package for Z finished in July 2022.

Academic year: September 2022 to July 2023

24. The Council did not arrange another educational placement for Z from September 2022. It told Mrs Y it would look for a suitable placement. It did not make any alternative educational provision for Z in the meantime.
25. The Council issued a draft amended plan in November 2022. This continued to state Z was attending College Q five days a week.

January 2023: Mrs Y’s complaint to the Council

26. Mrs Y complained the Council had:

• failed to make the educational provision in Z’s EHC Plan from September 2021 to July 2022;
• changed the arrangements for Z’s provision without her agreement or amending the EHC Plan;
• failed to provide Z with any education or SEN in the year from September 2022;
• failed to put in place the personalised learning pathway for Z for 2022/2023 it said it would arrange; and
• failed to complete the review and amendment of Z’s plan within the statutory timescale.

April 2023: The Council’s complaint response

27. The Council acknowledged Mrs Y’s complaint in March 2023. Because of its delay in handling this it escalated its procedure by issuing a final response report in April 2023.
28. In this response the Council accepted it had:

• failed to make the educational and SEN provision as set out in Z’s EHC Plan for the year from September 2021 to July 2022;
• failed to make any educational and SEN provision at all for Z in the year from September 2022; and
• delayed finalising Z’s plan and naming a new placement.

29. It offered Mrs Y the following financial remedy for its failures:

• £200 a month for the shortfall in Z’s educational provision for Z in the academic year 2021/2022 (9 months): a total of £1,800;
• £600 a month for the shortfall in Z’s educational provision in the academic year from September 2022 to March 2023 (6 months): a total of £3,600;
• £300 for the distress caused to Mrs Y by the delay in finalising Z’s EHC Plan; and
• £100 for the delay, time and trouble in the complaint handling process.

30. The Council also set out its action plan for resolving the complaint issues. This said it would identify a suitable alternative provision for Z and plan their transition by 31 May 2023.

Mrs Y’s reply

31. Mrs Y told the Council she would accept the action plan and financial remedies offered to resolve the complaint because her priority was to move forward with Z’s alternative educational provision. The Council’s failure to arrange this was having a detrimental effect on Z’s welfare.

July 2023: Mrs Y’s complaint to us

32. The Council failed to identify any suitable alternative education provision for Z as agreed in the action plan, so Mrs Y complained to us.

Current position

33. The Council told us in response to our enquiries, it was aware the annual review of Z’s plan was overdue. It planned to hold this by the end of January 2024.
34. It also said it had increased its review processing resources so this further review of Z’s Plan would now be completed within the statutory timescales.
35. Mrs Y has told us she has heard nothing from the Council about any annual review. But since September 2023, it has arranged a bespoke package of education over 1.5 days a week for Z.

My view – was there fault by the Council causing injustice?

(a) Failure to make the educational and SEN provision in Z’s EHC Plan

36. The Council has accepted, and I agree, it failed to make the educational and SEN provision set out in Z's plan from September 2021 to July 2022. This is fault.
37. The Council has also accepted, and I agree, it failed to make any of the educational and SEN provision in Z’s plan for the year September 2022 to July 2023. It has only arranged part-time provision from September 2023. This failure is fault.
38. The Council offered a financial remedy of £600 a term for the impact on Z of the missed provision for the year 2021/2022, and £1,800 a term for the year 2022/2022. I have considered whether these remedies meet the expectations in our published guidance on remedies.

Impact of these faults

39. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
40. The provision in Z’s EHC Plan is full-time education and SEN support five days a week. In the year 2021/2022 Z was provided with a part-time outreach programme of life and social skills and some SALT support 3 days a week.
41. Z missed most of the education and SEN provision they should have received over this entire academic year. I don’t consider the Council’s remedy of £600 a term properly recognises the extent and impact of Z’s missed educational provision and SEN support. I propose a remedy of £1,600 a term.
42. Z missed all of their education and SEN provision in the year 2022/2023 and about half their provision in the year from September 2023. Mrs Y told the Council about the detrimental effect of this on Z’s welfare. I don’t consider the remedy of £1,800 a term properly recognises the impact of this on Z. I propose a remedy of £2,400 a term for the year 2022/2023, and £1,200 for the terms from September 2023.
43. The Council’s failure to make Z’s education and SEN provision for over two years now has also caused Mrs Y worry and distress.

(b) Failure to complete reviews of Z’s EHC Plan within statutory timescales

44. The Council has accepted, and I agree, it did not complete the review of Z’s EHC Plan within the statutory timescales. This was fault.
45. The Council should have told Mrs Y, within four weeks of the annual review meeting of 31 January 2022, whether it intended to continue, change or end Z’s EHC Plan. It did not do this.
46. And if it intended to amend Z’s plan (which it did as she was no longer attending the named placement) it should have issued the final amended plan within 12 weeks of the annual review meeting.
47. The Council did not issue a draft amended plan until November 2022. It has still not issued the final plan setting out the new arrangements for Z’s education and SEN support. It has not held an annual review now for more than two years.
48. These delays, which are way outside the statutory timescales, have left Mrs Y and Z in limbo. Mrs Y has been caused worry and uncertainty about the arrangements for Z’s education. And she cannot appeal to the SEND tribunal until a final plan is issued, causing further uncertainty.

(c) Failure to complete its agreed action plan

49. The Council’s failure to complete the action it told Mrs Y it would take by 31 May 2023 is fault. Because of this, Mrs Y’s complaint was not resolved, the Council’s failure to make Z’s provision continued and Mrs Y was put to the time and trouble of bringing her complaint to us.

Impact of the Council’s failures on Mrs Y

50. These complaint issues have remained unresolved for more than two years now. Given the extent of the Council’s failures I do not consider its proposed remedy of £300 for the upset and worry, time and trouble these have caused Mrs Y meets the expectations in our published remedies guidance. I propose a remedy of £600.

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Agreed action

51. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its failure to: make the educational and SEN provision in Z’s EHC Plan; complete the review of Z’s EHC Plan within statutory timescales; and complete its agreed action plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
2. pay Mrs Y £600 (less the payment of £300 I understand it has already made to Mrs Y) to reflect the distress and uncertainty caused by its failures, and Mrs Y’s time and trouble bringing the complaint to us. This is a symbolic amount based on our guidance on remedies;
3. pay Mrs Y, on Z’s behalf, a total of £14,400 (less the payment of £5,400 I understand it has already made to Mrs Y) for the education and SEN support Z missed during the academic years 2021/2022, 2022/2023, and two terms so far in 2023/2024. This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them; and
4. hold an annual review meeting and report back to us on this meeting and its proposed action for completing the review process within the statutory timescales.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman