Summary: Mr X complains about how the Council has managed the Education, Health, and Care Plan process for his daughter Ms A. He said the Council failed to meet deadlines; his daughter missed full-time suitable education and therapies with limited educational provision in place between September 2022 and September 2023. He also said the Council’s communication has been poor. We found the Council was at fault. This caused significant distress to Mr X and Ms A. The Council agreed to remedy the injustice its actions have caused Mr X and Ms A.

The complaint

1. Mr X complains on behalf of his daughter, Ms A. He says that following an annual review of her Education, Health and Care (EHC) Plan in November 2021 the Council failed to:
• finalise her EHC Plan in a timely manner;
• carry out an annual review in 2022;
• provide suitable education to her since September 2022;
• secure the provision named in section F of her EHC Plan; and
• accept the offer of a residential school place to start in September 2022 even though this was her preferred school, and the Council had no other suitable option.
2. Mr X says that because of the Council’s actions Ms A missed out on education and therapies that she needed. Because of this, she did not progress towards any of the outcomes named in her EHC Plan. The Council agreed for her to start the residential placement in September 2023, but Mr X considers she should have started in September 2022 when the school originally offered it to her and the Council. Mr X said this has put avoidable pressure and distress on his entire family.
3. Mr X also says he felt he had to hire a solicitor to get the Council to carry out an emergency review of Ms A’s EHC Plan and agree to the residential placement she wanted and was offered in summer of 2022.
4. Mr X would like the Council to reimburse him his legal costs and make service improvements to make sure this does not happen to other families. He would also like the Council to apologise for not accepting Ms A’s residential placement sooner and delaying her access to a full-time suitable education. Lastly, Mr X would like the Council to allow Ms A to continue in education for an additional year which he considers would put her back in the position she would have been in had the Council agreed to her residential placement sooner.

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The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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)

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What I have and have not investigated

10. Mr X complained about the Council’s actions in relation to section I and section F of Ms A’s EHC Plan. Normally, we would not investigate those matters because we would expect Mr X to appeal those to the SEND Tribunal. However, we have exercised our discretion to investigate those matters because:
• the Council failed to complete Ms A’s annual review process in a timely manner;
• Mr X could not appeal Ms A’s EHC Plan because the Council failed to hold an annual review in 2022; and
• we consider it would not be reasonable for Mr X to appeal an outdated EHC Plan the Council issued in late 2022 as it is likely this would have further delayed her access to education.

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How I considered this complaint

11. Before issuing this draft decision I took account of:
• information gathered from the Council in response to written enquiries;
• relevant law and guidance as referred to in the text below; and
• information and comments from Mr X about her complaint.
12. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Annual Reviews

13. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
14. Councils must review an EHC Plan at least every 12 months.
15. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC Plan it is recommending.
16. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the Plan. It must notify the child’s parent of its decision.
17. If the Plan needs to be amended, the Council should start the process of amendment without delay.
18. The Council must send the draft EHC Plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
19. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft Plan and issue the final EHC Plan as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
20. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
21. The final amended Plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
22. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

What happened

23. Since 2018 Ms A has had an EHC Plan.
24. In 2022 Ms A was due to transition between stages of her education from one post-16 school to another.
25. The Council held an annual review meeting of her EHC Plan in November 2021. A month later it decided it needed to amend her EHC Plan.
26. Between the end of December 2021 and the end of April 2022 the Council consulted with five educational settings to see if they would be able to meet Ms A’s needs. One of those was Mr X’s preferred placement.
27. In mid-June 2022 Mr X’s preferred College wrote to the Council and said that it could meet Ms A’s needs. It said that she could attend for a 38-week residential programme starting in September 2022. It said this would be advantageous for her because of the in-house clinical team that could provide Speech and Language Therapy (SALT), Occupational Therapy (OT), and Psychology.
28. The following month the College sent the Council a full report and an offer letter to Ms A. The records show the Council told the College it needed time and to consult with Mr X about the offer. Ms X said this did not happen and he did not hear from the Council.
29. The Council’s records show that a panel considered if Ms A should attend her preferred college at the end of August 2022, but it decided to refuse the offer. The panel meeting minutes show the Council did this because it considered the college not compatible with Ms A’s mental health and that it separated her from her local community and support. Instead, the panel suggested the Council should work with Ms A and her parents to come up with a plan that would allow her to achieve her aspirations. The records show the Council was aware that its decision could be formally challenged and that it should have a “robust alternative” it would be prepared to defend. The Council did not share its reason for refusing Ms A’s place at her preferred college at the time.
30. In September 2022 Ms A was at home with no access to education or any provision from section F of her EHC plan.
31. At the end of October 2022 Mr X asked the Council for documents relating to Ms A’s EHC Plan and the Council’s decision to refuse funding for a residential placement for her at college of her choice. He also asked the Council to issue her final EHC Plan following the November 2021 annual review so he could appeal to the SEND Tribunal.
32. In the same month the Council contacted Mr X to speak about tutoring for Ms A. Within two weeks the Council referred Ms A for tutoring, she met the provider and agreed it would be a suitable short-term solution to access education until a suitable school place becomes available.
33. The following day the Council told Mr X that it would shortly issue Ms A’s final EHC Plan.
34. In early November 2022 the Council issued Ms A’s final EHC Plan. Section I of the Plan said that Ms A would receive “A transition package towards a mainstream college placement on a programme suitable for Ms A’s vocational aspirations in September 2023”.
35. In December 2022 Mr X made a subject access request to the Council, and asked to see all of its documents relating to the Council’s reason for not funding Ms A’s place at her preferred college to start in September 2022.
36. In mid-February 2023 Mr X complained to the Council. He said the Council concluded the EHC Plan late following the last annual review and did it only after he complained. Additionally, he considered Ms A lost a year of education because the Council did not approve her preferred college even though it had no other suitable option to offer her. Instead, the Council sent a tutor twice a week for a two-hour session each time and he thought this was pointless as it was not helping her transition into a school, nor helping her reach her educational growth.
37. In early March Mr X contacted a solicitor for advice. The Council replied to Mr X’s complaint the following day. It accepted that there were delays in the statutory process and it apologised to Mr X for this.
38. Two days later Mr X’s solicitor requested an emergency annual review of Ms A’s EHC Plan because the last one was in November 2021.
39. Mr X was unhappy with the Council’s response and asked it to consider his complaint further. He said the Council’s record of what happened was not accurate and this was not the first time he had to hire a solicitor to get answers about the progress of securing Ms A’s education.
40. At the end of the month the Council issued its final response to Mr X’s complaint. It partially upheld Mr X’s complaint, apologised for the insufficient tutoring provision and the delays in the EHC Plan process. It accepted that it should have secured Ms A’s place sooner and offered to pay £200 per month for the nine months she would have been educated between September 2022 and September 2023.
41. Within a few days the Council held a remote emergency annual review meeting of Ms A’s EHC Plan. The Council decided it would amend her Plan and sent referrals for Speech and Language Therapy and Occupational Therapy provision.
42. The following day Mr X’s solicitor wrote to the Council and said that during the meeting Ms A, her tutor, Mr X, and others agreed the tuition she had been getting was not a long-term solution because she had made no progress towards the listed outcomes. They also said the Council stripped Ms A’s section F of provision that was previously there without any evidence of her not needing it and her school had provided a report saying that section F should not have changed.
43. The Council said that at the beginning of April the SEND team consulted the Social Care team to decide if Ms A’s preferred college was suitable to meet her needs. The social care team confirmed that there was no closer placement that would help Ms A achieve her goals and access education and based on that the Council decided to consult with the placement again.
44. In mid-April a SALT provider told the Council it could support Ms A. However, a couple of days later the Council decided to agree a residential placement for Ms A at her preferred college to begin in September 2023. The Council said that it told Mr X it would amend Ms A’s EHC Plan at the end of the month, but the records suggest that it only confirmed it would assess her SALT and OT needs.
45. Toward the end of the month, Ms A’s tutoring provider agreed to increase her tutoring hours from four to ten.
46. In early June 2023 the Council issued Ms A’s final ECH Plan following the annual review it held in March 2023.
47. Mr X was unhappy with the Council’s response and in mid-August 2023 he complained to us.
48. In September 2023 Ms A began her residential placement at her preferred college.

Analysis

2021 annual review

49. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
50. The Council held Ms A’s annual review in November 2021. Following the review, the Council issued Ms A’s draft EHC Plan in late December 2021. We have not seen any records to suggest the Council issued an amendment notice to Mr X within four weeks of the review, and we consider this to be fault.
51. Between November 2021 and early March 2022, the Code did not give any deadline for the issuing of the draft and final amended EHC Plans. However, in early March 2022 a high court judgment clarified that councils should issue a draft EHC plan within four weeks of the annual review and the final amended plan within 12 weeks of the review. Once aware of this, the Council should have issued Ms A’s final EHC plan without further delay, but this did not happen.
52. It took another nine months and Mr X’s complaint for the Council to issue her final amended EHC Plan. This is fault.
53. This caused Mr X and Ms A avoidable distress and uncertainty. Mr X continued to chase the Council for answers and provision for Ms A, and he could not appeal the EHC plan to the SEND Tribunal until the Council issued the final Plan.

2022 and 2023 annual review

54. The Council failed to hold an annual review of Ms A’s EHC Plan in 2022. This is fault.
55. The next annual review came after a request from Mr X’s solicitor and the Council held the meeting in March 2023.
56. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. This means the Council should have told Mr X and Ms A what it intended to do by the end of April 2023. If the Council decides to amend the Plan, it must do so without delay and issue an amendment notice. We have not seen such a notice. This is fault.
57. A recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
58. The Council failed to issue a draft EHC Plan within four weeks from the date of the annual review it held in March 2023. It should have issued Ms A’s draft plan around the end of April 2023. The draft EHC Plan was not until early May 2023. This was a delay of a week.
59. It had an adverse impact on Mr X because it caused avoidable distress and time and trouble chasing officers up.
60. The Council issued Ms A’s final amended plan at the beginning of June 2023, which is within 12 weeks from the March 2023 annual review. The Council completed this within the statutory timeframe.
61. The records suggest Mr X was chasing officers in the SEN team many times for updates, that he did not always get substantive replies and any replies did not give meaningful updates. Our view is the Council should have given Mr X a rough timescale for when it would issue Ms A’s final EHC Plan. The failure to give a rough timeframe was poor communication and was fault.

Educational provision since September 2022

62. Records suggest that between September 2022 and November 2022 Ms A did not access education. This is because the Council did not approve the placement at her preferred college and did not put any other education in place for her. This is fault.
63. This caused Mr X and Ms A an injustice in a form of avoidable distress and lost educational provision.
64. The Council accepted that it did not contact Mr X about tutoring for Ms A until October 2022 and this was not implemented until November 2022. It has offered to pay £200 for the distress its actions caused Mr X and further £200 for the time and trouble Mr X has been put to.
65. We do not consider an offer of £200 for the distress to be sufficient. We have made our recommendation for a remedy at the end of this decision.
66. Between November 2022 and April 2023 Ms A got four hours of tutoring per week. Following the emergency review at the end of March 2023 the Council asked Ms A’s tutor to provide more hours, and in April 23 she began receiving 10 hours of tutoring per week.
67. We have not seen any evidence of how the Council decided that the four hours and, later on, the ten hours of tutoring would be a suitable equivalent to the education Ms A would have received at her preferred college that offered her a place in September 2023. This is fault.
68. In September 2023 Ms A began attending a residential placement at her preferred college.
69. Mr X said that he would welcome the opportunity for Ms A, should she want to, to attend her preferred college for an additional year to make up for the time she lost between September 2022 and September 2023.
70. The Council told us that if this was Ms A’s wish and if her college considered it necessary it would call an interim review of her plan in spring term, gather all relevant information, and present it to its panel for consideration.
71. This is a decision the Council would have to make based on the evidence available to it once Ms A’s placement is due to end at the college, therefore we have not included this in our recommendations.

Provision named in section F of Ms A’s EHC Plan

72. Mr X said that the Council had stripped away Ms A’s therapies without any evidential basis to support such revisions. Prior to the final EHC Plan it issued in November 2022, Section F specified for her to receive direct and indirect OT alongside speech and language therapy input.
73. The latest reports from Ms A’s school recommended she receive interventions including ongoing direct OT and intervention to develop her independent daily living skills.
74. The Council also removed Ms A’s SALT from Section F, despite the Annual Review report produced by her school requesting no changes to this aspect of Section F.
75. The records show that when she attended school between November 2021 and September 2022, Ms A received the provision in section F of her EHC Plan. This was the case even when the Council was in the process of amending her EHC Plan following the annual review it held in November 2021.
76. However, this changed when she stopped attending school in September 2022, and her previous EHC Plan was still in force, which means the Council was responsible for securing the provisions within the plan until it issued the amended final EHC Plan in early November 2022.
77. The fact that Ms A has an EHC plan means that she needs special educational support to be able to interact and achieve education to the best of her abilities. Ms A has missed three months direct support from the therapy and educational support she needed.
78. Although the EHC Plan the Council issued in November 2022 did not list the direct therapies, Mr X challenged this with the Council and following the emergency review the Council agreed to amend the plan and include those therapies, again in section F of her EHC Plan. On balance of probability, this indicates that the therapies should not have been removed and so we consider the Council was at fault for removing the therapies from Ms A’s EHC Plan. This means that between November 2022 and April 2023 she missed out on a further four months of direct support from the therapy and educational support she needed.

Panel decision to refuse residential college in August 2022

79. In August 2022 a Panel considered if the Council should agree the residential placement for Ms A at her preferred college. It decided that it would refuse the school place and meet Ms A’s needs in another way. The Ombudsman cannot question a council’s decision unless there is fault in the way that decision has been made. Whilst it was open to the Panel to refuse the identified placement having considered the evidence before it, it did so without ensuring there was another suitable placement to ensure Ms A would get the education and therapies she needed to thrive. This was fault.
80. This caused Ms A an injustice because it significantly delayed her access to full-time education and therapies listed in her EHC Plan.
81. Mr X has also been caused an injustice because he has experienced distress and frustration because of the Council’s failure to support Ms A properly and to meet her educational needs. He has also been caused unnecessary time and trouble.

Legal costs and service improvements

82. We can recommend the Council repays legal costs that are directly caused by the Council’s fault. To find the Council responsible for these legal costs we would have to decide it was a reasonable action for Mr X to take. We are satisfied it was.
83. From the records we have seen, it is clear to us that, before instructing the solicitor Mr X asked the Council to ensure that Ms A received the support she needed. Despite his efforts, Ms A, an already vulnerable young person, was not getting the education and the therapy that she needed. Mr X said he felt he had no choice but to pay for legal help. Mr X waited approximately 26 weeks from the date Ms A’s school term began before involving a solicitor. Additionally, only after he did, the Council:
• agreed to an emergency EHC Plan review;
• revised and added some of the provision named in section F of Ms A’s EHC Plan;
• consulted its social care department to see if Ms A’s preferred college was the nearest suitable place to meet her need; and
• later agreed her place to begin in September 2023.
84. We consider the Council’s faults resulted in Mr X’s avoidable legal costs. Therefore, we recommend the Council should pay back Mr X’s legal costs relating to the solicitor’s intervention with the Council in 2023 in full. This will have the effect of putting Mr X back in the position he would have been had the fault not occurred.
85. In February 2023 the Council reviewed and made changes to how it managed EHC Plan assessments and reviews. It has also created a plan of how to address any delays in the statutory process. We are satisfied with the actions the Council has taken in this area and for this reason we have made no further service improvements.

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Agreed action

86. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Mr X and Ms A for the faults I have identified. The Council should refer to our guidance on making an effective apology and ensure that its apology to Ms A is in a format suitable for her needs;
• pay Mr X £400 to recognise the distress and uncertainty the Council’s fault has caused him and Ms A;
• pay Mr X £200 it has offered for his time and trouble;
• pay Mr X £4,050 in recognition of the education that Ms A missed between September 2021 and July 2022. The payment should be used for the benefit of Ms A’s education;
• pay Mr X a further £400 in recognition of the therapy Ms A missed between September 2022 and April 2023. The payment should be used for the benefit of Ms A’s social and emotional wellbeing; and
• on provision of suitably itemised invoices, pay back Mr X for his avoidable legal costs related to this complaint.
87. The Council should provide us with evidence it has complied with the above actions.

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Final decision

88. We found fault with the Council’s actions in respect of Ms A’s EHC Plan annual reviews, school placement and communication. The council agreed to our recommendations and our investigation is now complete.

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Investigator's decision on behalf of the Ombudsman