Summary: Ms X complains on behalf of her son, Mr Y, that the Council failed to provide education in accordance with his Education, Health and Care (EHC) Plan between October 2022 and November 2023. Ms X says the Council ceased her sons EHC Plan without an annual review taking place. Ms X also says the Council has failed to ensure all the provisions in the EHC Plan are in place. Ms X says this has caused both her and her son distress and for her son to miss out on provision he was entitled to. We have found fault in the Councils actions for failing to provide education in accordance with the EHC Plan and recommend a financial payment to Ms X and Mr Y.

The complaint

1. Ms X complains on behalf of her son, Mr Y, that the Council failed to provide education in accordance with his EHC Plan between October 2022 and November 2023. Ms X says the Council ceased her sons EHC Plan without an annual review taking place. Ms X also says the Council has failed to ensure all the provisions in the EHC Plan are taking place such as Occupational Therapies and Speech and Language Therapies.
2. Ms X says this has caused both her and her son distress and for her son to miss out on provision he was entitled to.

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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. 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.
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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. 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

9. I have not investigated Ms X’s complaint before October 2022. Anything before this date would be a late complaint and I do not consider we should investigate further back than when Ms X asked the Council to arrange for her son to be able to re-attend college.
10. I have also not investigated the Council’s decision to cease Mr Y’s EHC Plan as Ms X appealed this to the SEND Tribunal.
11. I have considered whether annual reviews were completed in accordance with relevant legislation and whether the Council has ensured Mr Y is receiving the provision noted in his EHC Plan.

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How I considered this complaint

12. I have read the comments and documents Ms X provided and have also discussed the complaint with her on the phone.
13. I have considered the documents the Council provided in its response to my enquiries.
14. Both Ms X and the Council have provided comments on my draft decision. These were considered before a final decision was issued.

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What I found

15. 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 education (section F), or name a different school (section I). Only the tribunal or the council can do this.

Reviewing an EHC Plan

16. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
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. A review meeting must take place.
18. 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). 
19. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
20. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

SEND Tribunal

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

• 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; and
• a decision not to amend an EHC Plan following a review or reassessment.

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). Although we cannot consider a decision to cease a plan, because of the appeal right, we can consider if the provision was maintained until the appeal.
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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Provision

24. 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)  
25. 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. 

What happened

26. Mr Y stopped attending the college named in his EHC Plan following its closure for COVID-19 in 2020. Ms X was concerned about Mr Y’s health and decided he should not return until they could be sure it was safe for him.
27. Ms X contacted the Council in October 2022 to say Mr Y was ready to return to college.
28. The Council consulted with the college named in Mr Y’s EHC Plan. The College said it needed to reassess whether it could still meet Mr Y’s needs. The Council also consulted with two other colleges and received responses towards the end of 2022.
29. The Council wrote to Ms X in February 2023 to say it was proposing to cease Mr Y’s EHC Plan and confirmed she could appeal this decision. The Council then ceased the plan four days later.
30. Ms X complained to the Council in late February 2023 about its decision to cease the plan. She also appealed the Council’s decision to cease the plan.
31. The Council responded to Ms X’s complaint and upheld that no annual review had taken place before its decision to cease Mr Y’s EHC Plan. The Council confirmed training has now taken place to ensure staff are aware of the need to complete a review prior to ceasing an EHC Plan.
32. The Council also responded to the appeal in July 2023 and confirmed it would maintain Mr Y’s EHC Plan and would start the consultation process.
33. The Council made a referral for interim education for Mr Y in September 2023. However, Ms X says Mr Y did not receive any provision as the Council could not find a suitable tutor.
34. The Council issued an updated final EHC Plan in October 2023 and Mr Y began attending a new college in November 2023.
35. Ms X says although Mr Y has been attending college, he still does not receive some of the provision outlined in his EHC Plan such as Occupational Therapy and Speech and Language Therapy.

Analysis

36. I have not been able to see the Council reviewed Mr Y’s EHC Plan once a year in line with the guidance. This is fault.
37. After Ms X told the Council Mr Y would like to return to college in late 2022 it started the process of consulting. The Council contacted the college named in Mr Y’s EHC Plan to see if he could return. It also consulted with other colleges.
38. However, I have not been able to see that any provision was in place for Mr Y while the consultations took place. This is fault and has caused Mr Y to miss out on provision of education.
39. As Ms X appealed the Council’s decision to cease Mr Y’s EHC Plan I cannot consider this part of the complaint. However, the Council has not been able to show it ensured provision was in place following the decision to cease the plan. The Council also failed to ensure provision was in place while the appeal was ongoing as it should have. This is fault and again has led to Mr Y missing out on provision of education.
40. Following its decision to reinstate Mr Y’s EHC Plan in July 2023 I have not been provided with evidence to show the Council put any provision in place for Mr Y until he returned to college in late November 2023. This is fault and has resulted in Mr Y missing out on provision of education.
41. Once Mr Y returned to college in late November 2023, Ms X says he has not received the full provision recorded in his EHC Plan. Ms X says Mr Y has not received Occupational Therapy or Speech and Language Therapy. I have not seen any evidence to show this has been provided by the Council. This is fault and has resulted in Mr Y missing out on some of the provision he is entitled to.
42. Overall, Mr Y has missed around three terms of educational provision and a further six months of Occupational Health and Speech and Language Therapy provision following his return to college. He also continues to be without his speech and language therapy and occupational therapy.
43. Ms X has also suffered worry and upset by Mr Y missing out on his educational provision. She has also been caused inconvenience by having to complain to the Council and bring an appeal to try to get the provision set out in Mr Y’s EHC Plan.

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Agreed action

44. Within one month of a final decision, the Council should:

• Write to Ms X and Mr Y to apologise for the faults identified.
• Pay Mr Y £4,500 to recognise the significant amount of time he was not receiving any educational provision between October 2022 and November 2023. This is calculated at £1,500 per term.
• Pay Mr Y £1,000 to recognise the missed provision between November 2023 and present. This is calculated at £500 per term. The Council should continue to pay Mr X this amount until it has secured the provision in his plan.
• Pay Ms X £500 for the distress and inconvenience caused to her.
• Provide evidence it is taking action to provide all the provision set out in Mr Y’s EHC Plan.

45. The Council should provide us with evidence it has complied with the above actions.
46. I have not recommended any service improvements as the Council has already completed training with its staff reminding them to ensure a review takes place before a plan is ceased.

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Final decision

47. I have found fault in the actions of the Council for failing to provide Mr Y with the provision outlined in his EHC Plan.

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Investigator's decision on behalf of the Ombudsman