Summary: There was fault by the Council as it delayed issuing an amended Education, Health and Care Plan after an annual review. This delayed the right to appeal to the SEND tribunal and a payment remedies the injustice caused. There was also failure to chase a response from social care during the needs assessment process. There was no fault in the Council’s decision not to provide alternative educational provision as it decided the place at school was suitable and accessible to the child.

The complaint

1. The complainant, who I shall call Mrs X, complains there were delays in carrying out an Education, Health and Care (EHC) Plan needs assessment.
2. Mrs X also complains there were delays issuing an amended EHC Plan after an emergency review, which delayed her right to appeal to the Special Educational Needs (SEND) tribunal.
3. Mrs X says the Council has not provided full-time and suitable alternative education when her child could not longer attend school from March 2023 onwards. She says that Y, her child, missed education.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. 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)
6. 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

7. A child or young person with special educational needs may have an 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.

8. 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)
9. 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.
10. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
12. Mrs X got the final EHC Plan on 10 January 2024 and could appeal against the provision and setting. So, our jurisdiction means I cannot investigate from this date as the appeal rights were engaged.

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How I considered this complaint

13. I read the papers put in by Mrs X and discussed the complaint with her.
14. I considered the Council’s comments about the complaint and any supporting documents it provided.
15. Mrs X and the organisation 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

16. Mrs X moved to the Council’s area in March 2022 and was home-educating Y. Y was on a Child In Need (CIN) plan from 2 August 2022.
17. Mrs X applied to the Council for an EHC needs assessment on 31 August 2022. Y started mainstream college on 10 October 2022. From October 2022 to March 2023 Y’s attendance was 43% and he did not attend full days.
18. Information was requested on 9 November 2022 from Social Services as part of the EHC needs assessment. The Council did not receive a response and no information from Social Services was incorporated into the EHC Plan.
19. The Council issued an EHC plan on 11 January 2023 which did not name a setting.
20. The Council consulted Y’s college on 11 January 2023. The school responded that it could meet Y’s needs as specified. It said that Y was currently on roll and was accessing mainstream lessons without issue and was making progress
21. Y stopped attending college in March 2023 and Mrs X told the Council on 30 March 2023. The absences were unauthorised. The Council said ‘the college was of the view that Y could access education on site’ and told Mrs X that Education Other Than At School (EOTAS) was not considered suitable as the college had said they could met Y’s needs. The Council planned an interim review of the EHC Plan.
22. Mrs X made an official complaint in June 2023. The Council upheld her complaint that it did not update the EHC plan to name the setting Y was attending. It also upheld her complaint about poor communication. The Council did not uphold her complaint about the failure to provide alternative educational provision. It said the college had said it could meet Y’s needs and his current absence was unauthorised and that it had organised an interim review.
23. The emergency annual review was on 9 June 2023. At the review, the college agreed to organise alternative provision. A timetable was proposed for September 2023 which included a day and a half of outdoor education, a half day at forest school and English and Maths sessions to be in a smaller group at the college.
24. Mrs X made a stage 2 official complaint to the Council. The Council replied on 12 July 2023. The Council said the emergency review was carried out but it had not been able to comply with the statutory timescales after the review as the college had not sent the paperwork.
25. The Council issued an amended EHC plan on 17 November 2023 which named the mainstream college.
26. From September 2023 Y was attending an alternative provision for 8 hours per week. As the letter accompanying the EHC plan of 17 November 2023 did not include Mrs X’s right to appeal the decision, the Council sent a new letter on 10 January 2024. Mrs X attended mediation with the Council on 6 March 2024. Mrs X appealed to the SEND tribunal against the provision and setting in the EHC Plan on 4 April 2024.

EHC needs assessment

27. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says if the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.  

28. The EHC plan was issued within 20 weeks of the needs assessment request so there was no delay. Mrs X complains about the failure to include information about Y’s health and social care needs. Y was on a Child in Need (CIN) plan and social care was consulted but did not reply. So, there is no information on social care needs in the EHC plan.
29. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

30. In this case the Council consulted Social Care but the education department did not chase up a reply. This was fault, especially as Y was on a CIN plan. However, if Mrs X had wanted to challenge the failure to provide social care advice in the EHC Plan she could have appealed to the SEND tribunal. As she did not do so and the most recent plan only contains one line in the social care section which says that Y is on a CIN plan I do not consider this failure caused injustice to Mrs X and Y. I will, however, ask the Council to ensure that staff are reminded to chase up responses from Social Care if they are not received.

Emergency annual review.

31. 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) A final EHC plan should be issued within 8 weeks of the decision, i.e. 12 weeks after the review meeting.

32. The meeting was on 9 June 2023 and the decision to cease, review or maintain the plan should have been made by 7 July 2023. The amended plan should have been issued by 1 September 2023 but was 11 weeks late. Mrs X says it was a further 8 weeks before she received the letter giving her the right of appeal to the SEND tribunal. The Council has sent me a copy of the email dated 17 November which told Mrs X the EHC plan and letter was on the Council’s hub, so I have evidence that she was notified on 17 November 2023.
33. There was delay of 11 weeks in providing Mrs X with an EHC Plan and covering letter which meant that she could appeal to the SEND tribunal. As Mrs X did appeal, I consider the Council should apologise for the delay and pay £300 towards her frustration in not receiving the right of appeal sooner.

Loss of Education

34. Mrs X complains that Y was out of school from March 2023 and only received 8 hours per week alternative provision from November 2023 to the present day. The Council said that Y first attended the alternative provision in September 2023.
35. Mrs X got the final EHC Plan on 10 January 2024 and could appeal against the provision and setting. So, our jurisdiction means I cannot investigate from the date the appeal rights were engaged.
36. From September 2023, Y did receive educational provision. While Mrs X complains that this was not full time, it is not for us to decide how many hours a week was reasonable and so I do not find fault from this point.
37. From March 2023 to September 2023 Y could not attend college. The Council has said that he had a place but there was no setting named in the EHC Plan. Mrs X had the right of appeal against the failure to name a school in the EHC Plan in January 2023 but did not appeal. As Y was in school it would not have been reasonable for her to appeal at that point.
38. Mrs X says Y could not attend school. The Council’s view was ‘the school could meet Y’s needs’. The Council says Y’s absences were unauthorised and there was a place available for him at school.
39. I find no fault in the Council’s decision not to arrange alternative educational provision from March 2023 to September 2023. This is because a school place was available for Y, there was no medical evidence provided by Mrs X and the Council contacted the school who confirmed that it was still able to meet Y’s needs. The Council considered all this information at the emergency review and decided that the school could meet Y’s needs by providing some alternative provision and some alternation to the classes in school.

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Agreed action

40. Within one month of the date of the decision on this complaint, the Council should:
• Inform staff carrying out EHC Plan needs assessments that responses from Social Care should be chased and included in the report before finalising the plan.
• Apologise to Mrs X. 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.
• Pay Mrs X £300.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation of this complaint. This complaint is upheld as I have found fault by the Council and the actions above remedy the injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman