Summary: Miss X complained the Council delayed providing an Education, Health and Care Plan for her daughter following an annual review. She says the Council’s actions meant her daughter was out of school and did not receive appropriate educational provision. Miss X says she was unable to work during this period. We found fault by the Council. The Council has agreed to make some service improvements and provide an apology and a financial remedy to Miss X.

The complaint

1. Miss X complained the Council delayed providing an Education, Health and Care Plan for her daughter following an annual review. She says the Council’s actions meant her daughter was out of school and did not receive appropriate educational provision. Miss X says she was unable to work during this period.
2. Miss X also complained the provision set out in the final Education, Health and Care Plan lacked quantification and was not of a high quality.
3. Miss X would like the Council to acknowledge the impact of its actions, improve its processes and provide a financial remedy.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. 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.
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)
10. 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

11. I have investigated the complaint referred to in paragraph one for the period October 2022 to August 2023.
12. I have not investigated the complaint referred to in paragraph two because Miss X had a right of appeal to the SEND Tribunal regarding her dissatisfaction with the content of the final Education, Health and Care Plan.

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How I considered this complaint

13. I discussed the complaint with Miss X and considered the information she provided.
14. I made enquiries to the Council and considered the information it provided.
15. Miss X and the Council had the opportunity to provide comments on a draft of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

16. A child or young person with special educational needs (SEN) 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
17. 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.
18. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code of Practice paragraph 9.176) 
19. If the council decides to amend the EHC Plan, it must issue a final amended Plan within eight weeks of its amendment notice. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.

Appeal rights

20. There is a right of appeal to the SEND Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

21. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
22. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
23. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
24. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Alternative provision

25. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
26. 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))
27. The education provided by the council must be full-time unless the 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)

What happened

28. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance. This chronology includes key events in this case and does not provide details of everything that happened.
29. Miss X’s daughter, Child Y, has a diagnosis of Autism Spectrum Condition. In 2019, the Council issued Child Y with an EHC Plan. At that time, Child Y attended a primary school.
30. In September 2022, Child Y transitioned to a mainstream secondary school, School A. Miss X says Child Y attended School A during September 2022 but experienced significant anxiety as a result.
31. Miss X says from October 2022, Child Y was unable to attend School A in a classroom setting because of burn out caused by her anxiety. Miss X says Child Y was sometimes unable to attend school at all during this period because of her anxiety.
32. At this time, when Child Y was able to attend school, she spent some time in School A’s SEN area, with some check-ins carried out by an Extended Support Assistant. Miss X says these measures were to try to help Child Y feel more comfortable in school.
33. In November 2022, Miss X told the Council that Child Y’s mental health had declined significantly due to her anxiety about school. The Council says at this time, School A informed it that Child Y had not attended for several days.
34. Miss X attended a meeting with School A’s SEN co-ordinator and the Council on 12 December 2022. Miss X said Child Y was experiencing a significant increase in anxiety and was unable to attend School A. She said on some occasions when Child Y had attended, Miss X had needed to stay with Child Y because of her panic and anxiety. Miss X said Child Y had attended some sessions with the Child and Adolescent Mental Health Services (CAMHS) and that she was on a waiting list for a specialist assessment. At this meeting, the Council agreed to trial a reduced timetable, with two hours of online learning, onsite, daily.
35. In January 2023, the Council opened its Teaching and Learning Provision to Child Y, consisting of online learning at School A.
36. At about the same time, Miss X emailed the Council. She said she had asked for an early review of Child Y’s EHC Plan and said Child Y had been unable to access a full-time education since early November 2022 because of her poor mental health. Miss X asked the Council to carry out a new Educational Psychologists’ (EP) assessment and said Child Y’s anxiety levels had increased again.
37. The Council responded and told Miss X she could request an early annual review if she felt School A could not meet Child Y’s needs. The Council said the last review of the EHC Plan took place on 21 April 2022. It said Miss X could request a change of educational placement and told Miss X to contact School A if she wished to proceed with this.
38. In March 2023, the Council invited Miss X to attend an annual review meeting of Child Y’s EHC Plan, to be held in April 2023. Miss X replied and said she had been asking repeatedly for a meeting but had received no response. She said Child Y did not feel safe at School A and felt like she could not return. Miss X said Child Y was logging in to the online learning provision at home instead.
39. At this time, Miss X instructed a solicitor to contact the Council. The solicitor wrote to the Council on 16 March 2023 and said Child Y had to attend school on a reduced timetable because of the decline in her mental health. They said Child Y was unable to receive all the provision as set out in her EHC Plan because of the reduced timetable and because she was frequently unable to attend school because of her anxiety. The solicitor said Miss X considered there had been no significant improvement in Child Y’s social and emotional needs, and that she could only receive a full-time education at a specialist placement. The solicitor asked the Council to bring forward the date of the annual review, commission an EP assessment and consult with specialist schools.
40. The Council responded to Miss X’s solicitor on 4 April 2023 and said School A was unable to provide an earlier date for the annual review. It said Miss X could request an EP assessment as part of the EHC Plan review process.
41. The annual review of Child Y’s EHC Plan took place on 21 April 2023.
42. On 4 May 2023, the Council told Miss X it had agreed to amend the EHC Plan.
43. The Council provided Miss X with a proposed amended EHC Plan, and Miss X provided her comments and requests for amendments.
44. On 14 July 2023, Miss X’s solicitor contacted the Council. They asked if the Council would issue the final EHC Plan by the close of business that day.
45. The Council responded on 20 July 2023. It apologised for not responding sooner and said it was unable to issue a final EHC Plan at that time because the EP required more time. The Council said once it received confirmation from the EP, it would issue a further proposed amended Plan. The Council said it could not start the consultation process with Miss X’s preferred school until it had agreed a specialist placement was appropriate.
46. Miss X’s solicitor contacted the Council on 24 July 2023 and said it had not provided a final EHC Plan within the required timeframe. They said to issue a further proposed amended EHC Plan would incur further delays.
47. The Council responded and said it needed to issue a further proposed amended EHC Plan because Miss X had requested significant amendments.
48. Miss X’s solicitor told the Council they would issue a letter before action; they said the Council should have considered the requested amendments as part of the annual review process.
49. The Council issued a further proposed amended EHC Plan on 31 July 2023.
50. On 14 August 2023, the Council wrote to Miss X and confirmed it had agreed a specialist school placement was appropriate for Child Y. The Council issued the final EHC Plan on the same day, naming the placement as ‘a special school’, but without specifying a particular location.

What happened next

51. A few days later, the Council sent consultation letters to several schools to enquire as to whether they could meet Child Y’s needs and if they had an available placement.
52. On 6 September 2023, one of the school’s, School B, told the Council it could offer a place for Child Y.
53. Miss X asked the Council to continue with consulting with her preferred school, School C.
54. On 14 September 2023, Miss X complained to the Council. She said the Council had not met the deadline for issuing the final EHC Plan, and the provision described was inadequate, unspecific and not quantified. Miss X also complained the delays in issuing the final Plan meant the Council’s consultations with schools were made over the summer holidays, resulting in additional delay.
55. At about this time, Miss X appealed to the SEND Tribunal.
56. School C told the Council it was unable to offer Child Y a placement.
57. On 21 September 2023, the Council issued an amended final EHC Plan, naming School B as the placement.
58. The Council provided its complaint response on 13 October 2023 and acknowledged it had missed the statutory timescale for issuing the final EHC Plan. It said this was due to the demands on its service as well as the significant representations made by Miss X as part of the annual review process. The Council said it reviewed the provision set out in the EHC Plan prior to issuance and stated the content was in line with the Code of Practice. The Council apologised that the consultation process was initially delayed by the summer holidays, and acknowledged Child Y’s transition to School B.
59. Miss X says her appeal to the SEND Tribunal did not go ahead as the Council had issued an amended final EHC Plan.
60. Child Y started attending School B in October 2023.
61. Miss X remained dissatisfied with the Council’s response and brought the complaint to us in November 2023. As it appeared the Council may not have had the opportunity to consider Miss X’s complaint further via its own complaints procedure, we did not investigate the complaint at that time.
62. The Council notified Miss X in April 2024 that it was not able to respond further to her complaint. Miss X brought her complaint to us again in April 2024 as a result.

Analysis – delay in issuing the final EHC Plan

63. Miss X complained the Council delayed providing a final EHC Plan following the annual review held on 21 April 2023. The Council upheld this complaint in its response dated 13 October 2023. In its response to my enquiries, the Council said the delay was due to significant representations from Miss X, additional requested reports, and consideration of whether specialist provision was suitable.
64. The Council issued the final EHC Plan on 14 August 2023. This is more than the statutory timeframe of 12 weeks from the date of the annual review.
65. I acknowledge the Council’s explanation for the delays. However, the SEN Code of Practice is clear regarding the timeframes for the annual review process. The delay in issuing the final EHC Plan is fault.

The educational provision made to Child Y

66. Miss X says the Council’s actions meant Child Y did not receive appropriate educational provision. The Council says it considered its duties under section 19 of the Education Act 1996, as well as its own policies. It says the Council acknowledged Child Y was too unwell to access full time education, and it put in place a reduced timetable and alternative provision via online learning. The Council says this was in line with the professional advice provided by CAMHS.
67. Councils have a duty under section 19 of the Education Act 1996 to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. As previously stated, ‘suitable’ education means education suitable to a child’s age, ability and aptitude, and to any special educational needs they may have.
68. 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.
69. I have reviewed the steps the Council took to consider this issue, and the information it took account of when deciding to make provision via a part-time, online learning package. The evidence demonstrates the Council considered advice and evidence from professionals, including CAMHS and Child Y’s doctor. In making its decision, the Council took account of the relevant guidance, information from professionals, its own policies and information from Miss X. The Council followed the appropriate procedures when making this decision and I cannot therefore criticise it.
70. However, there is evidence of delay in arranging an early annual review to address Miss X’s concerns that the educational setting contributed to Child Y’s anxiety.

Delays in carrying out the review of the EHC Plan

71. Although Councils must carry out statutory annual reviews of EHC Plans every 12 months, parents of a child or young person with an EHC Plan may request an early review if they believe:
• the child or young person’s education, health or social care needs have changed and are no longer accurately described in the EHC Plan, or
• the education, health or social care provision in the EHC Plan no longer meets the child’s or young person’s needs.
72. Miss X says she requested an early review of Child Y’s EHC Plan in November 2022.
73. The Council says it does not believe it received a request for an early annual review in November 2022; it says Miss X’s request at that time may have been made to School A.
74. The Council acknowledges however, there may have been some communication difficulties between Miss X, School A and the Council during this period. Nevertheless, the Council acknowledges it was clear from its correspondence with Miss X in early January 2023 that Miss X wanted an early annual review. The Council acknowledges that as a result, it should have asked School A to hold an early review of Child Y’s EHC Plan as soon as possible.
75. The annual review took place on 21 April 2023. The Council says the previous annual review took place on 21 April 2022. As a result, the annual review held in April 2023 was not early, it was the required 12 monthly review of the EHC Plan.
76. The annual review held on 21 April 2023 took place approximately four months after the Council was aware of Miss X’s request for an early review. This is delay and I have found this delay to be fault.
77. The Council says its Assessment and Planning team is now fully staffed and has received significant training regarding annual reviews. The Council says that as a result, it is confident it would recognise and respond appropriately to similar requests for early reviews.

Injustice caused by the fault identified

78. The injustice caused by the fault identified is the distress caused to Miss X and Child Y as a result of:
• the delay in issuing the final EHC Plan following the annual review in April 2023;
• the subsequent delay caused by sending consultations to schools during the school summer holidays, and
• the delay in providing Miss X with a right to appeal to the SEND Tribunal.
79. The delay in carrying out the early review of Child Y’s EHC Plan following Miss X’s request also caused avoidable distress and uncertainty. On the balance of probabilities, an earlier annual review would more likely than not have resulted in an earlier decision to name a specialist school in the EHC Plan.

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Agreed action

80. To address the injustice to Miss X and Child Y, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Miss X and Child Y. 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. Make a symbolic payment of £500 in recognition of the distress and uncertainty caused by the delays;
3. Remind staff to adhere to the statutory timeframes as part of the Education, Health and Care Plan review process, and
4. Remind staff of the importance of recognising parental requests for early reviews of Education, Health and Care Plans, and of the importance of acting on those requests in a timely manner.
81. The Council should provide us with evidence it has complied with the above actions.

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Final decision

82. I have found fault by the Council. The Council has agreed to take the above action to resolve this complaint and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman