Summary: There was fault by the Council. It failed to amend Y’s Education, Health and Care Plan following an annual review in December 2021 and failed to complete annual reviews in 2022 or 2023. It also failed to secure the special educational provision in Y’s Plan and delayed responding to Ms X’s complaint. This caused a loss of special educational provision, a loss of appeal rights, avoidable frustration, distress and time and trouble complaining. The Council will issue an apology, make payments for missed educational provision, complete a further annual review and devise a new policy and training for officers.

The complaint

1. Ms X complained her son Y had no education for two years, including counselling and therapy. She also complained the response to her complaint was inadequate.
2. Ms X said this caused her avoidable distress and Y a loss of educational provision

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, 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 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

7. Ms X complained to us in September 2023. Events from September 2022 are in time and I have investigated them. I have exercised discretion to investigate from December 2021 as there was an annual review of Y’s EHC Plan where Y’s educational provision should have been considered by the Council if he was not attending his school placement.
8. I have not investigated matters before December 2021 because they are late and there is no good reason for me to consider them.

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How I considered this complaint

9. I considered the complaint to us, the Council’s responses and documents in this statement. I discussed the complaint with Ms X.
10. Ms X and the organisation 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

11. A child or young person 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.
12. A personal budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing the provision. A parent can take a personal budget as a direct payment (a cash payment)
13. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHCP is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
14. The council has a duty to make sure the child or young person receives the special educational provision (SEP) set out in section F of an EHC Plan (Section 42 Children and Families Act 2014).

15. 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.

16. 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. (Regulation 20(10) Special Educational Needs and Disability Regulations 2014 and SEND Code paragraph 9.176) 

17. Where the 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. (Regulation 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
18. The parent should have at least 15 calendar days to make representations on proposed changes including requesting a particular educational placement to be named in the Plan.
19. Following parental representations, the council must issue the amended final Plan within eight weeks of the amendment notice.
20. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.   (Regulation 18, SEND Regulations 2014))

21. Parents have a right to educate their children at home (Section 7, Education Act 1996).

22. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

23. Where the EHC Plan names a school and the parents decide to home educate (we refer to this as Elective Home Education or EHE), the council is not under a duty to secure provision on the EHC Plan as long as the council is satisfied the parental arrangements are suitable. The Council must review the plan annually to assure itself the provision set out in the Plan is suitable and meets the child’s SEN. It should amend the Plan to name the type of school that would be suitable, but state the parents have made their own arrangements under Section 9 of the Education Act 1996. (SEND Code paragraph 10.32)
24. A council may arrange for SEP it decides is necessary for a child to be made otherwise than in a school or college (“EOTAS”) if it is satisfied that provision in a school/college is inappropriate. (Section 61, Children and Families Act 2014)
25. The Council’s corporate procedure has three stages with the following timescales for a response:
• Stage 1: 10 working days
• Stage 2: 15 working days
• Stage 3: 20 working days.

What happened

Background

26. Y is autistic and has attention deficit hyperactivity disorder (ADHD). He is currently in Year 12. The most recent final amended EHC Plan (July 2020, when Y was in Year 7 and about to start Year 8) names an independent special school (School A) in Section I and SEP in Section F including:
• Social skills group at least twice weekly
• Peer mentoring support during unstructured times.
• Opportunities to socialise like after school clubs
• Teaching of desired social behaviour
• Weekly social use of language programme, use of social stories.
27. There is no counselling or therapy in the plan.
28. Ms X said in her complaint to the Council that she had removed Y from School A in 2021 as she felt it was not meeting his needs. The Council sent me a copy of its email to School A saying it was ending the placement at the end of Summer 2021 as Ms X’s preference was to home educate Y.

December 2021

29. There was an annual reviewing meeting. Y was in Year 9. The Council’s records suggest the SEND and EHE officer attended the review meeting with Ms X. It was noted Ms X wanted a personal budget.
30. The Council has sent me a copy of an ‘annotated EHC Plan’ dated December 2021. It has some proposed amendments to Sections B, (Y’s SEN), C (Health needs) D (social care) E (outcomes) and F (SEP). The placement named in Section I (School A) is struck through. Section J noted Y had a personal budget of £20 a week to fund activities in the community.
31. The Council wrote to Ms X saying its funding panel had agreed a direct payment of £20 a week ‘for a range of educational and leisure activities and equipment.”
32. There was no activity on Y’s case for six months following the annual review meeting.

2022

33. In June, Y’s EHC officer left.
34. In September, a new EHC officer was allocated and made contact with Ms X. Ms X said in an email that she was unhappy about the lack of communication and that she had no personal budget for tuition. She also said Y had no education for 12 months apart from materials she had downloaded.
35. A manager from the SEND team apologised to Ms X for the lack of communication. They proposed a further annual review meeting to discuss matters and said Ms X needed to submit a proposal for a personal budget. The manager said “if we are to consider a personal budget, as part of an education package of support, we need to have evidence Y is not able to attend an education placement otherwise he would instead be registered as Elective Home Education.”
36. Ms X replied saying she had asked for a list of tutors before. She said the previous tutor lasted three weeks as Y would not engage with her. She said she was unable to home educate Y.
37. The SEND manager and SEND officer met with Ms X at the start of November The plan was to arrange online tutoring for. The Council identified an on-line provider the same month.

2023

38. The case officer arranged virtual schooling for Y with a national provider. Records indicate this did not start until March. This was due to difficulties accessing the on-line platform due to lack of log-in credentials, but also there was a gap in contact from the Council in February 2023 and so Ms X had no support from council officers for this period to help with setting up Y’s on-line provision.
39. The Council wrote to Ms X at the end of May saying it had decided to amend Y’s EHC Plan. It enclosed a draft amended EHC Plan with proposed amendments. This version of the Plan is the same as the ‘annotated’ version of the Plan dated December 2021 (see paragraph 31.)
40. Ms X complained to the Council in May 2023. She said in her complaint that she had removed Y from School A in June 2021 as it was not meeting his needs and his mental health was suffering. The Council responded in July saying:
• It was sorry it had taken ‘some time’ to arrange appropriate education for Y.
• Y was registered with the on-line school provider from March. He had login details and a personal timetable and she was registered for weekly updates with the provider
• There would be a review of Y’s EHC Plan in July.
41. Ms X emailed the Council’s complaints team at the end of August saying she had not received an adequate complaint response.
42. Ms X complained to us at the end of September. The Council told us it would let Ms X have a second complaint response by the end of October. We told Ms X to wait for this response before we would investigate.
43. There were two meetings between officers in the SEND and social care teams and Ms X in October and November 2023. These do not appear to have been formal annual review meetings. The outcome to those meetings was that the Council agreed to put in place funding for non-educational support for Y to engage with other people outside the home. The Council’s records for this period said Ms X reported Y did not want to engage in education.
44. The Council’s second response to the complaint in November said officers had met with her in October and the plan was to fund a personal assistant for two hours a week to encourage Y to access the community to start building some life skills in preparation for adulthood. The response went on to apologise for the lack of educational provision.
45. Ms X told the Council she was not happy with its second complaint response and Y had missed out on several years of education due to the Council’s failings.

2024

46. Ms X complained to us again in February. The Council had just emailed Ms X saying the final response to her complaint was due by the first week in May and it was sorry for the delay. Ms X told us Y had been receiving little education since her original complaint to the Council and his mental health had deteriorated.
47. The Council then issued a final response the following day. This said:
• There was a review of the EHC Plan in December 2021. Ms X asked for a personal budget and was asked to provide an educational proposal and costs, but this meant the home education she was providing Y was never formalised
• There appeared to be a six-month gap in communication and educational provision which equated to 21 weeks of missed education
• In September 2022, the EHC Plan officer contacted her and Ms X said she wanted email contact only. The careers advisor also contacted her to discuss the possibility of Y working with animals. Ms X said mainstream school was not suitable. The SEND service manager also sought to organise an annual review of the EHC Plan and discuss the personal budget. Ms X said Y had not engaged with the tutor and wouldn’t complete work
• Between November 2022 and January 2023, she met with officers to look at starting online tutoring and Y was registered with the provider
• Between January and March 2023, there were technical issues. This was five weeks of missed education
• At the end of May, the Council issued a revised (draft) EHC Plan. She raised concerns about the content.
• There was another meeting in the middle of June with the SEND service during which she said Y refused to engage with any form of education or training.
• There was a meeting with professionals in the middle of July to discuss Y’s status as “NEET” (not in education, employment or training)
• In October, the Council tried to arrange a review meeting, but she cancelled it because Y did not want to go ahead
• There was a meeting without Y in November to discuss a non-educational support plan to commence on 15 January 2024
• The Council refunded the outstanding personal budget in December 2023
48. The Council upheld the complaint, apologised and made a payment for 26 weeks of lost educational provision £1950 and £300 for Ms X’s avoidable time and trouble complaining.

Comments from the Council

49. An EHE officer said Y was never recorded as being EHE. They went on to say:
• EOTAS packages were not previously recorded and so it would look like there was no provision. Staff would then wrongly assume the child must be EHE.
• There was confusion even amongst professionals between children who were receiving EOTAS packages, being EHE and were receiving educational provision because of ill-health.
50. A Home Education SEND Advisory Teacher from the Council told me:
51. “Y was never EHE (officially). Y had an EHCP and would be what we now call EOTAS. I was asked to attend the EHCP review meeting to explain what other EHE children get who have an EHCP (nothing unless they have a personal budget of which there are none in Rochdale). This was because mum was unhappy with the provision. I think there was some confusion in the SEND team at the time about the difference between EHE and EOTAS. I still get calls from SEND officers from time to time about other children who are not EHE. Any requests from parent to EHE were not shared with our team…... As a result, I did not conduct visits or judge if the education was suitable, efficient or full-time to his age, aptitude and ability.”

Was there fault?

52. There was fault by the Council because:
1. It did not complete the annual review of December 2021. It should have issued a decision amend Y’s EHC Plan within four weeks of the review meeting. It appears to have started the process of amending Y’s EHC Plan by preparing an ‘annotated EHC Plan’ in December 2021. This indicates the Council intended to make amendments to the Plan (to Section I which named School A, a placement which had ended). However, the Council did not proceed to issue a final amended Plan within the 12-week timescale required. This caused avoidable confusion, distress and a loss of appeal rights.
2. There should have been further annual reviews of the EHC Plan in December 2022 and 2023. The 2023 review should have been a phase transfer review with a final EHC Plan naming Y’s post-16 placement and should have been completed by the end of March 2024. Although there have been meetings, the Council has not provided documentary evidence of formal annual review meetings in 2022 or 2023, or of consultations with placements, or any final amended Plans. It has only a draft EHC Plan of May 2023. This is not in line with the SEND Code of Practice and is fault.
3. Y’s case was inactive for most of 2022 due to staff in the SEND Team leaving. Yet Y was without an educational placement (as the Council had given notice to School A at the end of the school year in 2021) and there was nothing alternative in place to deliver the provision in Section F.
4. Y’s educational status was unclear. Officers have at different times said he was being electively home educated and more recently that he had an EOTAS package. By the Council’s own evidence, its staff are unclear about the difference between children who receive EOTAS or who are EHE. The Council should know whether children who have EHC Plans are receiving EOTAS or are EHE and have relevant policies in place for staff to consult. In relation to EHE, this is because the council needs to be satisfied with the parental arrangements for educating their child. And the Council should still have been reviewing Y’s EHC Plan annually as a child who was EHE to be in line with Paragraph 10.32 of the SEND Code of Practice.
5. There was no or little oversight of Y’s case in 2022 or consideration of whether or not to put in place alternative provision when Y was removed from school – this was in part because officers were confused about the EOTAS/EHE issue.
6. Y is entitled to the SEP in Section F of his EHC Plan of 2020 as the Council did not amend it or cease to maintain it. On the evidence available, he has not been receiving it.
7. The Council put in place on-line schooling for Y from March 2023. Although Y had on-line lessons, the provision in Section F of his Plan includes social skills groups, peer mentoring, opportunities to socialise and social use of language programmes. There is no evidence on-line schooling provided this. This was not in line with the duty in Section 42 of the Children and Families Act 2014.
53. The Council did not respond to Ms X’s complaint within the timescales set out in its complaints policy. The delay is fault causing avoidable frustration and time and trouble.
54. Ms X says Y has not been receiving therapy or counselling. But this is not in his EHC Plan. So the Council did not have to provide it. And, depending on the therapy, this may be the responsibility of the NHS. Either way, there is no fault by the Council in not providing therapy or counselling.

Did the fault cause injustice?

55. On the records available, Y had no education between December 2021 and March 2023 until on-line schooling began. Ms X had a direct payment for two hours a week of education-related activities, but this is not the full-time educational provision he was entitled to. This is a loss of 15 months of education when Y should have been studying for his GCSEs.
56. Y also has a loss of SEP between March and June 2023.
57. By July 2023, records show Y did not want to attend any form of education. He would have been due to go into Year 12 and was recorded as NEET. On balance he would not have engaged with any education including any special educational provision even if it had been secured for him. So there is no injustice from July 2023.

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Agreed action

58. The Council will, within one month:
1. Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Carry out a further annual review of Y’s EHC Plan and issue a decision to cease or amend the Plan (it cannot be maintained without amendments, as the educational setting is out of date)
3. Make Ms X a payment of £500 to reflect her avoidable distress, time and trouble frustration and loss of appeal rights
4. Make Y a payment of £3150 to reflect the lack of any education between December 2021 and March 2023. This is at the low end of our published guidance on remedies and takes into account the possibility that Y would not have engaged in education and that he did have an identified placement on his EHC Plan which he could have attended.
5. Make Y an additional payment of £400 to reflect the loss of special educational provision between April and June 2023.
59. If the Council’s decision (see point (b) in the last paragraph) is to amend the EHC Plan, then it should complete the amendment process within the required 12-week timeframe. This will give Ms X and Y appeal rights.
60. Within three months, the Council should create a policy on managing the cases of children with EHC Plans who receive EOTAS or are EHE and provide training to officers in the inclusion and SEND teams on it.
61. The Council should provide us with evidence it has complied with the actions in paragraphs 58 to 60.

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Final decision

62. There was fault by the Council. It failed to amend Y’s Education, Health and Care Plan following an annual review in December 2021 and failed to complete annual reviews in 2022 or 2023. It also failed to secure the special educational provision in Y’s Plan and delayed responding to Ms X’s complaint This caused a loss of special educational provision, a loss of appeal rights, avoidable frustration, distress and time and trouble complaining. The Council will issue an apology, make payments for missed educational provision, complete a further annual review, devise a new policy and training for officers.
63. Subject to further comments by Ms X and the Council, if the Council accepts my draft recommendations, I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman