Summary: Mrs X complained the Council failed to provide the provision in her son’s EHC Plan. Mrs X also complained the Council delayed in reviewing her son’s EHC Plan and, when it did complete the review, failed to complete the review process correctly. We found fault with the Council for delays in reviewing Mrs X’s son’s EHC Plan. We also found fault with the failure to consider provision for preparation for adulthood at the correct time, failing to make the 2023 annual review accessible to Mrs X’s son and failing to consult with relevant professional. We also found fault with the Council failing to provide a transition plan for Mrs X’s son to access education in school and failing to provide educational support from his EHC Plan. The Council agreed to pay Mrs X £8,400 for the missed educational provision and £750 for avoidable distress. The Council also agreed to pay the £4,050 reimbursement figure it suggested for private Clinical Psychologist costs and follow through on its promised service improvements to publish information on its Local Offer Information Hub.

The complaint

1. Mrs X complained the Council has failed to provide her son with virtually all the provision detailed in his EHC Plan since 2018 including access to the resources at his named school.
2. Mrs X also complained the Council failed to complete an early review of her son’s EHC Plan in January 2021 or undertake a further annual review until June 2023. In doing so, the Council failed to consider what provisions her son would need to prepare for adulthood in September 2021 by failing to complete an annual review.
3. Mrs X also complained the Council failed to arrange an annual review meeting her son could attend and failed to carry out the annual review process correctly in 2023.

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The Ombudsman’s role and powers

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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
8. 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)
9. 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

10. I have not investigated any matters about issues before 14 July 2020. This is because Mrs X brought this matter to the attention of the tribunal who considered this matter on 14 July 2020. The Ombudsman has no jurisdiction to investigate complaints about matters already considered by the tribunal.
11. I have also not investigated matters from 14 July 2020 until 20 January 2021. The Ombudsman will not investigate late complaints without a good reason. Mrs X brought this complaint to the attention of the Ombudsman in September 2023. The Ombudsman would normally not consider matters more than 12 months from when a person has complained to us. This means we would normally only consider this complaint back to September 2022.
12. However, the Ombudsman can exercise discretion to investigate complaints when the matter complained about has an injustice within the last 12 months which extends beyond this time period. In this instance, the ongoing injustice in Mrs X’s complaint starts on 20 January 2021, from production of the Final EHC Plan. We have exercised our discretion to consider this complaint from 20 January 2021.
13. We have investigated Mrs X’s complaint up to 10 July 2023. This is the date the Council produced the latest Final EHC Plan for Mrs X’s child. Since this date, Mrs X has had an appeal right to the tribunal about the content of the EHC Plan. This included an appeal right about the provision in Section F, any lack of provision and the named educational placement in Section I. Mrs X has exercised this appeal right. The Ombudsman cannot investigate a complaint when a person has an appeal right available, or has exercised an appeal right, to the SEND Tribunal.

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How I considered this complaint

14. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
15. Mrs X and the Council had opportunity to comment on my draft decision.

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What I found

Rules and regulations

EHC Plans

16. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
17. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
18. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
19. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
20. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
21. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
22. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
23. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council may also decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
24. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
25. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Alternative provision of education

26. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
28. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
29. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
30. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
31. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
32. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
33. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
34. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
35. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

36. In November 2018, Mrs X’s child, who I shall call Y, stopped attending school.
37. In December 2018, the Council issued a Final EHC Plan for Y naming his secondary school placement (The School).
38. Mrs X sought an EHC Plan reassessment in March 2019. The Council issued a new Final EHC Plan in July 2019 maintaining The School as Y’s educational placement.
39. On 12 March 2020, the Council started to provide home tuition to Y of 10 hours each week.
40. Mrs X appealed the EHC Plan to the tribunal. In July 2020 the tribunal dismissed the appeal and maintained The School as Y’s educational setting. The tribunal recommended the Council put in place a transition plan for Y to attend The School. The Council did not put in place a transition plan for Y.
41. The Council issued Y’s Final EHC Plan on 20 January 2021. Within Section F of the EHC Plan the Council said Y should receive:
• Three sessions of speech and language therapy advice to staff supporting Y.
• A tutor with experience of working with young people with similar needs to Y.
• Advice and support through a Clinical Psychologist made up of weekly 1 hour therapy sessions.
• General Occupational Therapist support for Y, Y’s parents and the school.
42. In January 2023, the Council contacted Mrs X to tell her it was looking to complete an annual review of Y’s EHC Plan.
43. On 27 February 2023, Y and Mrs X made a complaint to the Council. They said:
• Y has never attended The School despite it being named on Y’s EHC Plan.
• The Council failed to put in place support to help Y transition to attending The School.
• Y had been provided with a tutor but had received no input from any other professionals detailed in Y’s EHC Plan.
• Y had not received any of the support detailed in Y’s EHC Plan for his educational provision such as visual supports or fidget toys/aids.
• The Council had failed to conduct suitable annual reviews of Y’s EHC Plan and had not considered what provision was required in preparation for adulthood.
44. The Council discussed the complaint with Mrs X who told the Council that Y had an anxiety fuelled distrust of the Internet.
45. The Council issued its Stage 1 complaint response on 29 March 2023. The Council said:
• It understands Y has been receiving home tuition since March 2020.
• It only looks to provide home tuition as a short-term solution and should be trying to reintegrate children into school.
• It has decided it needs to look to bring Y into The School and will look to put a plan in place to support this transition.
• It considers Y can access his education at The School.
• It admitted it had failed to provide the provision for Y detailed in his EHC Plan.
• It will review post-16 preparation options with Y during the annual review of his EHC Plan.
46. On 11 April 2023, the Council asked Mrs X to provide suitable dates and times to attend the annual review meeting through an online meeting.
47. On 24 April 2023, Y and Mrs X sought consideration of their complaint at Stage 2. They said:
• The Council has tried to arrange an online annual review of his EHC Plan despite it knowing this would be inaccessible for Y.
• Y could not access education at The School because the Council had failed to put in place a transition place as set out by the tribunal.
• Y did not want to attend The School but instead wanted to continue to receive education from his home tutor alongside the other provision detailed in his EHC Plan, which he is not receiving.
• The School was not suitable for Y and it was unhappy the Council continued to name this school in Y’s EHC Plan.
• Despite the Council accepting it had failed to provide Y’s EHC Plan provision, it had not addressed when Y would receive this.
• The Council had failed to review Y’s EHC Plan within the statutory timescales.
48. On 11 May 2023, the Council invited Y to attend the annual review meeting in person. The Council told Y which professionals it had invited to attend the meeting.
49. Mrs X told the Council Y would not be attending the meeting because the number of professionals attending made this inaccessible to Y. Mrs X proposed Y’s SEND Support and tutor attended to represent him in his place.
50. The Council produced its Stage 2 complaint response on 26 May 2023. The Council said:
• It accepted it had failed to put in place a transition plan to get Y to attend The School.
• It accepted it had failed to review Y’s EHC Plan since July 2020.
• It accepted Y was not receiving the full package of provision set out in his EHC Plan.
• The annual review scheduled for June 2023 gave it opportunity to address the lack of provision and decide a suitable educational placement for Y.
• It accepted it had failed to consider what provision was needed to help Y in preparation for adulthood but the forthcoming annual review will consider this.
• It apologised for failing to arrange a face-to-face annual review meeting in the first instance as the Council should have been aware of Y’s anxiety about the Internet.
51. On 5 June 2023, the Council held an annual review meeting for Y’s EHC Plan. The Council decided to amend Y’s EHC Plan following the meeting.
52. In June 2023, the Council discussed with Mrs X about issuing the EHC Plan before getting a Speech and Language Therapy report and an Occupational Therapist report. Mrs X said she wanted the Council to issue the Final EHC Plan in the statutory timescales.
53. On 26 June 2023, Y and Mrs X provided a response to the Council’s Stage 2 complaint. They said:
• The Council had failed to put forwards any adequate remedies in its Stage 2 complaint response and simply provided apologies for its failures.
• While the Council changed the annual review meeting to in person it invited a significant number of people which also presented a barrier to Y attending.
• The Council had failed to provide the provision for Y set out in the EHC Plan and failed to put in place preparation for adulthood.
• The Council had decided to name The School in Y’s EHC Plan before the annual review meeting.
• The Council failed to adhere to Regulation 21 of the SEN and Disability Regulations 2014 by failing to get input from an Occupational Therapist and Speech and Language Therapist.
54. The Council issued Y’s Draft EHC Plan on 30 June 2023 before issuing the Final EHC Plan on 10 July 2023. The Council named The School in Section I of Y’s EHC Plan.
55. The Council issued its Stage 3 complaint response on 14 August 2023. The Council said:
• It accepted fault for failing to provide provision detailed in EHC Plan, failing to complete an early annual review, failing to complete a transition plan for Y to attend The School and failing to prepare Y for adulthood.
• It should have left Section I blank in the EHC Plan issued in July 2023 and would look to re-issue this.
• It upheld the complaint that it failed to hold an annual review which was accessible for Y.
56. In the Stage 3 complaint response the Council said it would:
• Pay Mrs X £4,500 for the loss of educational provision for Y.
• Pay Mrs X £4,050 reimbursement for privately sourced therapy from a Clinical Psychologist.
• Re-issue Y’s Final EHC Plan removing The School from Section I.
• Pay Mrs X £500 for the distress and frustration this matter had caused.
• Start preparations for Y’s autumn annual review.
• Provide learning and development about annual review and EHC Plan provision by publishing new guidance on its SEND Information Hub.

Analysis

Delays in completing EHC Plan review

57. The Council has already accepted fault for failing to complete an early annual review of Y’s EHC Plan in January 2021. The Council accepted it should have completed a review following its failure to put in place a transition plan for Y to attend The School.
58. The Council has also accepted fault through delays in completing an annual review of Y’s EHC Plan since 20 January 2021. The latest time in which the Council should have completed an annual review for Y’s EHC Plan was 20 January 2022. This meant the Council delayed for 17 months outside the statutory timescales in completing an annual review of Y’s EHC Plan until June 2023.
59. Since the Council has accepted these faults, I do not need to complete a further investigation into these matters. Instead, I will consider a suitable award to reflect this fault. I will address this further in paragraphs 71 to 74.
60. While the Council was at fault for delays in starting the annual review process until 5 June 2023, I do not find fault with the timescales of it completing the 2023 annual review. The Council held the annual review on 5 June 2023, meaning it had until 28 August 2023 to produce the Final EHC Plan. The Council produced the Final EHC Plan on 10 July 2023. Since the Council met the timescales, I do not find fault for this part of the complaint.

Failure to consider provision for adulthood

61. The Council has already accepted fault for failing to consider provision for Y’s preparation for adulthood at the correct time. This fault came about because of the Council’s failure to complete annual reviews of Y’s EHC Plan within the correct timescales.
62. Again, since the Council has already accepted this fault, I do not need to complete a further investigation into these matters. I will again consider a suitable award to reflect this fault. I will address this further in paragraphs 71 to 74.
63. The Council has now appointed an allocated member of the Adulthood Team to support Y with preparation for adulthood. While this may be the case, the Final EHC Plan produced in July 2023 does not include any provision for preparation for adulthood. Failing to include provision in an EHC Plan is appealable to the SEND tribunal. This is a matter outside the jurisdiction of the Ombudsman which Mrs X and Y can appeal.

EHC Plan review process

64. The Council has accepted fault for arranging Y’s EHC Plan in an online format when this would be inaccessible to Y.
65. But, when the Council did arrange the annual review meeting in person, it invited many professionals to attend. While the Council may have needed input from a number of professionals, not all these professionals needed to attend the meeting in-person. Doing so again made the annual review meeting inaccessible to Y.
66. The Council has a duty to make annual reviews of EHC Plan’s person-centred. The Council failed to meet this duty. This was fault. I will consider a suitable award to reflect this fault. I will address this further in paragraphs 71 to 74.
67. The Council has also committed to learning and development about person centred reviews in the future. The Council said it would produce information about what young people can expect from a person-centre approach and publish this on its SEND Information Hub (Local Offer) by December 2023. The Council has failed to meet this deadline and said it will publish this by 29 February 2024. We have included a recommendation the Council completes this work and publishes it within one month of our final decision.
68. The Council has accepted fault for failing to consult relevant professionals as part of Y’s EHC Plan such as the Occupational Therapists and Speech and Language Therapists. The Council also accepted it failed to circulate the reports in good time.
69. Since the Council has accepted these faults, I do not need to complete a further investigation into these matters. Instead, I will consider a suitable award to reflect this fault. I will address this further in paragraphs 71 to 74.
70. The Council has also committed to learning and development about person centred reviews in the future. The Council said it would produce information on the Pathways through its processes on reviewing, maintaining and amending EHC Plans and publish this on its SEND Information Hub (Local Offer) by December 2023. The Council again failed to meet this deadline and said it will publish this by 29 February 2024. We have included a recommendation the Council completes this work and publishes it within one month of our final decision.

Goodwill award

71. The Council has offered a symbolic payment of £500 to Y as part of its Stage 3 complaint response. This £500 was to reflect the fault and injustice I have referenced in paragraphs 57 to 70. This includes:
• The failure to complete an early annual review.
• Delays of 17 months outside the statutory timescales in completing the annual review.
• Failure to consider provision for preparation for adulthood sooner.
• Failing to make the 2023 annual review meeting accessible to Y.
• Failing to consult relevant professionals in a timely manner during the 2023 annual review process.
72. The Ombudsman will normally look to provide a remedy which puts a person back in the position they were in if not for the fault. However, when fault by a council has presented an injustice to a person which cannot be rectified, the Ombudsman can look to provide a symbolic payment for any avoidable distress.
73. Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500. However, we can recommend higher payments to remedy distress where we decide it was especially severe and/or prolonged.
74. In this circumstance, the Council’s fault has been cumulative and prolonged. The Council has been at fault for 17 months because of delays outside the statutory timescales. During this time, the Council’s fault has added up through not just delay but also failure to consider relevant provisions, such as preparing for adulthood. When the Council started to address this fault, it compounded it by making the annual review process inaccessible for Y. I consider we should provide a symbolic payment beyond our normal £500 awards for distress and instead consider a payment of £750 is suitable.

Failure to provide education and EHC Plan provision

75. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
76. The Council was aware Y was not attending school since before the start of our investigation into this complaint and has provided education at home since March 2020. The Council was already fulfilling its Section 19 duty since this time.
77. While the Council was providing home tuition for Y since March 2020, it failed to complete the transition plan to bring Y into The School in September 2020. This was fault. This fault meant Y was only able to access education at home until the Council put in place a suitable transition plan.
78. Although there is a clear duty on councils to make alternative educational provision, they may decide a child cannot cope with full-time provision, especially where the reason is medical. In such circumstances, there should be a clear professional opinion to support this. In the circumstances of Y’s complaint there is no professional opinion that Y could not cope with full-time provision. The Council should have provided full-time education for Y outside of school.
79. Full-time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, with 25 hours a week more suitable for a child of secondary school age. However, if a Council is arranging one-to-one tuition, fewer hours may be appropriate, giving the increased intensity of learning.
80. Y received 10 hours of tuition from 20 January 2021 until September 2021, totalling two terms of education. Y then received 12 hours of tuition for the three terms of the academic year 2021/2022. Y then received 15 hours of tuition from the three terms of the academic year 2022/2023.
81. This means that by September 2022, Y was receiving 15 hours of one-to-one tuition which is not incomparable to a full 25-hour week in a school setting because of the intensity of the learning.
82. While Y was receiving a comparable to full-time education, Y was not receiving most of the provision in his EHC Plan. Y was not receiving Speech and Language therapy, Occupational Therapy input or any of the day to day provisions with Section F of the EHC Plan which would be provided in a school setting. This meant that Y’s educational provisional was not meeting the same standards as it should have been had the Council put in place the provision from Y’s EHC Plan. This was fault.
83. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place and a child’s individual needs.
84. Y was not attending school at any point from 20 January 2021 until 10 July 2023. However, Y did receive one-to-one tuition from a tutor who held a good rapport with Y and understanding of his needs. Y also missed most of the other educational provision set out in his EHC Plan. While this will have had an impact on Y, Y has himself said he considered the education provided by his tutor was more suitable for him than an education at The School. As such, I consider an award at the lower end of range is more suitable in this circumstance. The Council should provide a payment totalling £8,400 for Y’s missed provision from 20 January 2021 until 10 July 2023. This is consists of £1,200 for each term in which Y received 10 hours tuition, £1,100 for each term in which Y received 12 hours tuition and £900 for each term in which Y received 15 hours tuition.
85. Mrs X also sourced her own Clinical Psychologist to work with Y to complete one hour weekly sessions with Y. This was a provision set out in Section F of the EHC Plan from January 2021. The Council has already accepted fault for failing to provide this and offered £4,050 to reimburse the cost Mrs X incurred in arranging this herself. I consider this is a suitable offer to reflect this direct quantifiable cost and have not considered this loss of provision as part of the award detailed in paragraph 84.

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Agreed action

86. Within one month of the Ombudsman’s final decision the Council should:
• Complete and publish the information about what young people can expect from a person-centre approach and publish this on its SEND Information Hub (Local Offer).
• Complete and publish information in an accessible format on the Pathways through its processes on reviewing, maintaining and amending EHC Plans and publish this on its SEND Information Hub (Local Offer).
• Provide a payment of £750 to Mrs X for the avoidable distress caused by the Council’s fault in this matter.
• Provide a payment of £4,050 to Mrs X to reimburse the privately sourced costs incurred for Y’s Clinical Psychologist sessions.
• Provide a payment of £8,400 to Mrs X for Y’s missed educational provision from 20 January 2021 until 10 July 2023.
87. The Council should provide us with evidence it has complied with the above actions.

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Final decision

88. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman