Summary: Mrs X complained the Council failed to complete an annual review of her child, Y’s Education, Health and Care (EHC) Plan following a review meeting in January 2023, failed to provide an education or the provision in their Plan since January 2023 and significantly delayed responding to her complaint about the matters. The Council was at fault. It agreed to make a payment of £5,925 to Mrs X to recognise the injustice caused to her and Y and issue Y’s amended EHC Plan.

The complaint

1. Mrs X complained the Council failed to complete an annual review of her child, Y’s Education, Health and Care Plan following a review meeting in January 2023, failed to provide an education or the provision in their Plan since January 2023 and significantly delayed responding to her complaint about the matters.
2. Mrs X said Y missed out on education and specialist provision, and she was caused frustration and distress. Mrs X wanted the Council to provide Y an education and the specialist provision in their Plan.

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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. I read the documents Mrs X provided and discussed the complaint with her on the phone.
7. I considered the documents the Council provided in response to my enquiries.
8. Mrs X 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 legislation and guidance

Education, Health and Care Plan

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections.

Reviewing an EHC Plan

10. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
11. 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. A review meeting must take place.
12. Within four weeks of the review meeting the council should tell the child’s parent if it intends to amend, maintain or cease the EHC Plan. 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 within four weeks of the review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). 
13. The Council should process the amendments to the Plan without delay and must issue the amended Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196).

Provision

14. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school (EOTAS). A council can only agree to EOTAS if it is satisfied it would be inappropriate for the provision to be made in a school.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 

• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Council’s complaint procedure

17. The Council’s complaint policy states it aims to respond to all stage one and stage two complaints within 20 working days. Where this is not possible because the complaint raises complex issues it will keep the complainant informed of the progress until it can fully respond.

What happened

18. In 2022 Y had an EHC Plan that set out the special educational provision (SEP) they needed to meet their special educational needs (SEN). The Plan named school A as the school Y should attend. It said Y needed:
• 15 minutes a day structured social skills and communication sessions;
• up to one hour a day multi-sensory reading intervention;
• 45 minutes a day multi-sensory intervention in spelling, numeracy and writing and reading comprehension;
• one hour a week support with a cognitive behavioural approach to anxiety; and
• three hours a week sensory intervention with a teaching assistant.
19. School A held an annual review of Y’s EHC Plan in January 2023. School A sent the paperwork to the Council at the beginning of March 2023. It said Y was unable to attend school due to anxiety related to their SEN and their attendance was at less than 25%. It said School A had tried many ways to support Y but could no longer meet Y’s needs. It said Y was currently receiving three hours outreach from school A but was asking for more education.
20. Mrs X sent the Council a letter from Children and Adolescent Mental Health Service (CAMHS) for Y in March 2023. The Council confirmed it had received the letter which recommended Y should be educated other than at school (EOTAS).
21. The Council considered Y’s EHC Plan in June and decided it would consider online tuition once it had received a CAMHS report stating Y’s needs could not be met in any school setting. The Council received the CAMHS report and agreed to arrange tuition in July.
22. Mrs X complained to the Council in June 2023 that it had not responded to the annual review paperwork. She said the delay was impacting Y’s mental health and they were not receiving an education. She asked the Council to complete the annual review within five working days and decide if it would agree to an EOTAS.
23. The Council wrote to Mrs X in July and apologised for the delay in its complaint response. It said it was caused by an increase in workload and a staffing shortage and that it was working to solve the issue and hoped to respond very soon.
24. Mrs X complained to us in September 2023 as the Council had not responded. We asked the Council to respond to Mrs X’s complaint.
25. The Council began to look for tutors for Y in October. The Council told Mrs X that a tuition provider could provide Y with 10 hours of tuition a week and it would begin after the Council had agreed the cost.
26. School A and Mrs X contacted the Council about the tuition in November.
27. The Council said in December 2023 it agreed that EOTAS should be specified in Y’s EHC Plan, instead of a named school.
28. In January 2024 tuition began for Y. It covered three core subjects of maths, science and English. It began at six hours a week to progress up to ten as appropriate for Y.
29. The Council responded to Mrs X’s complaint from June 2023 in February 2024. It said it had not reviewed Y’s EHC Plan in line with the guidance and had not communicated with Mrs X and apologised for the frustration and uncertainty caused. It said it would be in contact to discuss the EOTAS it had agreed.
30. Mrs X asked the Council to consider her complaint at stage two of the complaint process as she was dissatisfied with its response. The Council’s stage two response said Y had received three hours a week tuition from school A from January to December 2023. It said it delayed in putting in place tuition which meant that Y was without the provision in section F of their EHC Plan. The Council apologised for the anxiety this caused Mrs X and Y. It said it would discuss the EOTAS package with Mrs X by 28 March and issue the amendment notice for Y’s EHC plan by 5 April 2024. It offered Mrs X £300 to recognise the injustice caused by the delay in its complaint handling.
31. The Council sent Mrs X an amendment notice and draft amended EHC Plan for her comments on 28 March 2024.
32. The Council states a further annual review meeting was held at the beginning of May 2024.
33. In response to my enquiries the Council stated:
• it had unacceptably delayed in processing the annual review of Y’s plan, which was caused by a backlog of annual reviews and shortage of caseworkers;
• it should have taken action to ensure Y was receiving an education and the provision in their EHC Plan in March 2023, when it first heard Y’s attendance was low, and it did not do so until December 2023;
• it could not provide a reason why it delayed arranging the tuition from October 2023 to January 2024; and
• it was satisfied Y was able to manage the tuition it put in place from January 2024 and it met the provision in Y’s EHC Plan.

My findings

Annual review

34. School A held an annual review in January 2023, in line with the guidance the Council should have issued its decision to amend, cease or maintain Y’s EHC Plan within four weeks and issued the amended EHC Plan within a further eight weeks. The Council did not issue its decision to amend the EHC Plan until March 2024 and had not issued a final amended EHC Plan at the date of this decision. That was well beyond the timescales set out in the guidance and was fault. Although the Council did not receive the paperwork until March 2023, that does not account for the subsequent 14-month delay. The fault caused Mrs X frustration and uncertainty and meant Y was without an EHC Plan that accurately reflected their needs for over a year. The Council has apologised for the injustice this caused but this does not fully remedy the injustice to Mrs X or Y so I made a further recommendation below.

Provision

35. The Council had a duty under section 42 of the Children and Families Act to ensure Y could receive the provision specified in their EHC Plan. The Council was aware that Y was not receiving the provision in their EHC Plan in March 2023. It had already identified that it should have taken action to ensure Y was receiving an education and the provision in their plan in March 2023. The failure to do so was fault and meant Y was without the specialist provision in their EHC Plan for two terms from March 2023 until January 2024 when the tuition began. They only received three hours of education per week, in the form of tuition arranged by school A, during that time. The Council had already apologised for this matter, I made a further recommendation below.
36. The Council stated it was satisfied the tuition in place from January 2024 met the specialist provision set out in Y’s EHC Plan. However, although the Council agreed in December 2023 that an EOTAS package was appropriate for Y, as the Council failed to issue a final amended EHC Plan the original Plan remained in force. The Plan specified the sensory interventions Y should receive on a daily and weekly basis as set out in paragraph 18. The tuition they have been provided since January 2024 is academic tutoring only. Therefore, although Y received some education they did not received all of the provision in their Plan for the term and half between January 2024 and the date of this decision, which was fault.

Complaint handling

37. Mrs X complained to the Council in June 2023, although the Council stated it was delayed at the end of July it did not respond to Mrs X until February 2024. That is significantly longer than its complaint response allows and was fault. The Council has already apologised and offered Mrs X £300 which is an appropriate remedy for the frustration and uncertainty this caused her.

Service improvements

38. In other investigations the Ombudsman has completed the Council has provided evidence of an action plan it has in place for addressing delays in the annual review process and in responding to complaints.
39. In a recent investigation we recommended the Council provide relevant staff with written guidance on the Council’s non-delegable responsibilities under Section 42 Children and Families Act, and what action staff should take when they become aware a child or young person is not receiving the provision in their EHC Plan.
40. We continue to monitor both these points through our investigations. I have therefore not repeated the service improvement recommendations here.

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Agreed action

41. Within one month of this decision the Council will take the following steps:
• Pay Mrs X a symbolic amount of £800 (including the £300 it has already offered) to recognise the frustration and uncertainty she has been caused by the Council’s delay in the annual review process, and its poor complaint handling;
• Pay Mrs X £4,000 to recognise the impact on Y of the two terms they did not receive the provision in their Plan, and £1,125 to recognise the term and half Y received academic tutoring but did not receive the sensory provision in their Plan. Mrs X should use these payments for Y’s benefit as she sees fit; and
• Issue Y’s final amended EHC Plan and provide Mrs X with her appeal rights.
42. The payments I have recommended are in line with our guidance on remedies.
43. The Council will provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman