Summary: Miss B says the Council delayed completing her daughter’s annual review for her education, health and care plan, failed to ensure the alternative provider put in place provision and failed to respond to her communications. The Council delayed completing the annual review, failed to put in place alternative provision following the annual review and failed to respond to some of Miss B’s communications. An apology, payment to Miss B and introduction of a process to manage annual reviews is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• delayed completing the review of her daughter’s education, health and care plan (EHC plan);
• failed to ensure the alternative provider put in place provision for her daughter; and
• failed to respond to her communications.
2. Miss B says the Council’s actions have impacted on her daughter’s mental health and she has missed out on 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 an injustice, 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 the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss B 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

What should have happened

8. A child with special educational needs may have an EHCP. An EHCP describes the child's special educational needs and the provision required to meet them.
9. The procedure for assessing a child's special educational needs and issuing an EHCP is set out in regulations and Government guidance.
10. Statutory guidance 'Special educational needs and disability code of practice' (code of practice) sets out the process for carrying out EHC assessments and producing EHC plans. It deals with reviewing plans as follows.
11. Councils must review an EHCP at least every 12 months. The first review must take place within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. They may carry out a review earlier.
12. The council must write to the child's parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC plan as it is, amend it or end it. If the EHC plan needs to be amended the council should start the process of amending it without delay.
13. If the council decides to amend the EHC plan following the representations it must issue the final amended EHC plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
14. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of 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.

What happened

15. Miss B’s daughter has special educational needs and has had an EHC plan from March 2022. Miss B’s daughter has struggled to attend school and the Council put in place alternative provision from September 2022.
16. In July 2023 Miss B emailed the Council to complain as an annual review of her daughter’s EHC plan had not taken place. Miss B said her daughter had made no progress and had not communicated with any of the coordinators for the alternative provision assigned to her. Miss B suggested input from a specialist autism/ADHD mentor her daughter had worked with previously and engaged with. The Council acknowledged receipt of the email and said it would arrange the annual review. The Council apologised for the delay.
17. The alternative provider initially arranged the annual review for 8 August. That did not take place because the alternative provider had not invited health professionals as Miss B had requested.
18. In the meantime Miss B commissioned the specialist autism/ADHD mentor to provide some sessions to her daughter. Miss B told the Council that at the end of August and said she wanted that included in the review. The Council acknowledged receipt of her email.
19. An annual review of Miss B’s daughter’s EHC plan took place on 11 October. That review concluded the EHC plan should be amended and the current alternative provider was no longer appropriate as Miss B’s daughter would not engage.
20. Miss B contacted the Council on 25 October to again request the specialist autism/ADHD mentor continue to work with her daughter as she was comfortable with her. Miss B said she had not yet made a final decision about whether to ask for a personal budget. Miss B asked the Council to clarify various areas. Miss B also provided the Council with information about a clinical psychologist to carry out some work with her daughter although she noted that could not take place straightaway. Miss B asked the Council to refund the sessions she had paid the specialist autism/ADHD mentor for.
21. Miss B contacted the Council again on 15 November. Miss B raised concerns about not receiving a decision following the annual review. The Council chased the alternative provider and apologised to Miss B. The alternative provider then sent the Council the annual review documentation on 20 November. The alternative provider also told Miss B and the Council it could no longer make provision for Miss B’s daughter because she would not engage.
22. Child and adolescent mental health services (CAMHS) contacted the Council in December 2023 and said it had also had difficulty engaging Miss B’s daughter. CAMHS said only the specialist autism/ADHD mentor had been able to engage with Miss B’s daughter and it recommended that provision be put into place.
23. Miss B contacted the Council in January 2024 to provide it with a personal budget proposal. That involved a mentoring package from the specialist autism/ADHD mentor along with work from a psychiatrist, a Kindle subscription for reading and online provision for functional skills in English and Maths.
24. On 19 February Miss B emailed the Council to complain about the delay issuing an amendment notice. The Council issued an amendment notice and draft EHC plan on 23 February. The Council also wrote to Miss B to apologise for the delay.
25. On 23 February the Council told Miss B it needed to take the request for a personal budget to panel and asked for Miss B to provide more information. The Council has now agreed a personal budget and education other than at school.

Analysis

26. Miss B says the Council delayed completing her daughter’s annual review. The Council accepts it delayed carrying out the annual review. It should have taken place in March 2023 and it did not take place until October 2023. That delay is fault. The Council also delayed issuing an amendment notice following the annual review in October 2023. The Council did not issue the amendment notice until February 2024. That delay is again fault. Following that, the Council delayed issuing a final EHC plan. That is also fault. Those faults mean the Council did not complete the process within 12 weeks of the annual review as it should have done.
27. Miss B says the Council failed to ensure the alternative provider put in place provision for her daughter. Miss B says although provision has been in place for her daughter since September 2022 that has not resulted in any provision and the Council failed to take action.
28. Having considered the documentary records it is clear Miss B’s daughter has a history of finding it difficult to engage with providers. It is clear that is also Miss B’s daughter’s experience with the provider the Council put in place in September 2022. The notes from the annual review meeting in October 2023 though show the provider made various efforts to engage Miss B’s daughter and those efforts have been unsuccessful.
29. I have seen no evidence to suggest Miss B raised concerns with the Council about the provision not working before July 2023. Nor is there any evidence Miss B put in place her own provision until August 2023. Given the attempts made by the provider to put in place provision I do not criticise the Council for any failure of the provision before the annual review took place in October 2023. That is because it is clear to me the issue here lies with Miss B’s daughter’s difficulty engaging with the provider rather than due to any failure to put provision in place.
30. I am concerned about the Council’s actions following the annual review in October 2023 though. By that time I am satisfied the Council knew Miss B’s daughter was not engaging with the alternative provider. The alternative provider also told the Council in November 2023 it no longer considered it could meet Miss B’s daughter’s needs as she would not engage. Given that information I would have expected the Council to identify alternative provision for Miss B’s daughter and I have seen no evidence it did so. That is fault given the Council has a duty to ensure a child receives education.
31. I am particularly concerned about that because Miss B had provided the Council with details of the provision she had been able to get her daughter to engage with from August 2023. I am satisfied Miss B provided that information to the Council in October 2023, although I note she said she had not reached a final decision about how to go forward. Given the Council had information about provision Miss B’s daughter would engage with I am concerned that as of the Council’s response to my enquiry in March 2024 it had still not put the case to its panel to consider whether to set up a personal budget to enable Miss B to pay for the provision she had identified. That delay is fault, although I note the Council has now put in place a personal budget.
32. Miss B says the Council repeatedly failed to respond to her communications. As I said in the previous paragraph, I am satisfied the Council delayed dealing with Miss B’s request for the Council to fund the provision she had identified as there is no evidence of a response to Miss B until after she put in a personal budget proposal. Failure to respond to Miss B’s correspondence is fault.
33. I now have to consider what injustice Miss B and her daughter have suffered as a result of the faults identified in this statement. I consider it likely, on the balance of probability, if the Council had carried out the annual review in March 2023, when it should have done, it would have identified the issues with the provision. I could not speculate though about whether the Council would have sought different alternative provision for Miss B’s daughter at that point. I therefore consider the injustice to Miss B for the delay completing the review is her uncertainty about what the outcome would have been had the review taken place when it should have as well as her delayed right of appeal. To remedy that and the time and trouble Miss B has had to go to I recommended the Council pay her £250. The Council has agreed to my recommendation.
34. I also recommended the Council pay Miss B a financial remedy to reflect the missing alternative provision from October 2023. I consider that appropriate as the Council knew Miss B’s daughter was not receiving any alternative provision and yet did not put anything into place. To remedy that I recommended the Council pay Miss B £1,200 per term of missed education for her daughter. As I understand the Council did not put a personal budget into place until May 2024 that means the Council should pay Miss B £2,400 to reflect the missed education between October 2023 and May 2024. That is based on my understanding that a personal budget is now in place for Miss B. The Council has agreed to my recommendation.
35. I further recommended the Council put in place a process to ensure it tracks when annual reviews are due and to ensure annual reviews are followed up on once they have taken place. The Council has agreed to my recommendation.

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Agreed action

36. Within one month of my decision the Council should:
• apologise to Miss B for the uncertainty and upset she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £250 to reflect her uncertainty; and
• pay Miss B £2,400 to reflect the missed education for her daughter between October 2023 and May 2024.
37. Within two months of my decision the Council should put in place a process to track when annual reviews for EHC plans are due and to ensure cases are followed up on once a review has taken place.

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Final decision

38. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman