Summary: Mrs X complains the Council has not dealt properly with her son Y’s Special Educational Needs (SEN). The Council is at fault because it did not hold an annual review properly. Y lost education provision and Mrs X was denied the ability to appeal to Tribunal. The Council should apologise, Pay Mrs X £6000 for lost education provision, £400 for her time and trouble and avoidable distress, make a decision about incurred costs, provide an action plan and staff training.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt properly with her son Y’s Special Educational Needs because it failed:
• to complete her son’s Education Health and Care (EHC) Plan Annual Review properly and issue an updated EHC Plan;
• to make educational provision it said it would for her son;
• to communicate with her about her son’s EHC Plan;
• to provide payment for travel and costs; and
• to deal with her complaint properly because the response at stage one was inadequate, there were no timescales for action and no guidance about how to escalate her complaint.
2. Mrs X says Y has missed education, she has been denied a right of appeal about Y’s EHC Plan and has suffered avoidable distress.

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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 spoke to Mrs X about his complaint and considered documents she provided. I considered supporting documents the Council provided.
7. 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

Law, guidance and policies

8. 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. 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. 
9. 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)  
10. 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. 
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. 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.
12. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
13. 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 paragraph 9.176) 
14. 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. (Section 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.
15. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. (SEN Code paragraph 9.195) 
16. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. (SEN Code paragraph 9.196) 

What happened?

17. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
18. Y was in hospital between August 2022 and February 2023.
19. The Council held an annual review of Y’s EHC Plan in May 2023. Mrs X chased the Council regarding progress with completing the annual review.
20. Mrs X complained to the Council in October 2023. The Council accepted there had been delay in dealing with the annual review and did not challenge that no educational provision had been made.
21. Mrs X escalated her complaint to stage 2 in early November 2023. The Council provided a stage 2 complaint response in April 2024, accepting again there had been delay in dealing with the annual review and did not challenge that no educational provision had been made.

Analysis

EHC Plan annual review

22. The Council accepts it did not complete the May 2023 annual review and issue an updated EHC Plan for Y in the correct timeframe. The Council issued a proposed amended EHC Plan for Y in April 2024. This is fault by the Council. Mrs X has been denied the right of appeal regarding Y’s EHC Plan to SEND Tribunal.

Educational provision

23. Child in need meeting notes show that Y did not receive any education between February 2023 and April 2023.
24. A teaching plan shows Y began to receive two hours a week tutoring towards the end of April 2023. Mrs X reports Y began to receive nine hours a week from January and is now receiving 12 hours a week tuition.
25. In July 2023, meeting records show the Council was to consider an Education Other Than At School (EOTAS) package.
26. Y’s draft amended EHC Plan shows he has a range of needs and section J indicates an EOTAS package has been agreed.
27. The Council did not challenge Mrs X’s complaint that Y had missed education. This is fault by the Council. Y missed education and SEN provision between February 2023 and April 2024.

Communication

28. I have seen multiple emails and records which indicate the Council did not attend meetings or reply to emails or communications on multiple occasions.
29. The Council did not challenge Mrs X’s complaint that it failed to communicate with her about Y’s Education and EHC Plan. This isfault by the Council. Mrs X had to expend time and trouble and suffered avoidable distress.

Payments

30. The Council’s stage 1 complaint response stated issues were being taken to its Placement and Panel in November 2023. Mrs X incurred travel and provision costs which the Council should have considered re-imbursing. Three is no evidence this has been progressed since. This is fault by the Council. Mrs X may have been left out of pocket.

Complaint Handling

31. The Council’s stage 1 complaint response provided no information about how it could be escalated to stage 2. This is fault by the Council. Mrs X did not suffer any injustice because she escalated her complaint successfully.
32. The Council’s stage 2 complaint response should have taken no longer than 20 working days. It was actually sent in late April 2024, a delay of over 4 months. This is fault by the Council. Mrs X has suffered continuing avoidable delay in resolving the fault accepted by the Council at stage 1 of its complaints procedure in November 2023. Mrs X and Y suffered avoidable distress.

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Agreed action

33. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the fault identified in this decision;
• Pay Mrs X £6,000, (representing £2,000 per term, in accordance with the Ombudsman’s Guidance on Remedies), for Y’s missed educational and SEN provision between February 2023 and April 2024.
• Pay Mrs X £200 for time and trouble and £200 for avoidable distress;
• Consider and make a decision regarding the imbursement of costs to Mrs X.
• Produce an action plan to demonstrate how the council will meet statutory timescales for annual reviews; and
• Provide staff training to ensure they understand the legal framework and obligations in relation to the faults found.
34. The Council should provide us with evidence it has complied with the above actions.
35. 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.

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Final decision

36. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman