Summary: Ms X complained that the Council failed to review and update her son’s education, health and care plan in line with statutory timescales and failed to provide an appropriate education for him. We found the Council delayed in determining appropriate educational provision and failed to comply with statutory timescales. As a result, Ms X’s son was out of school for a considerable period. We also found the Council’s communication with Ms X was poor and it delayed significantly in responding to her complaint. In recognition of the injustice caused the Council has agreed to make a payment to Ms X.

The complaint

1. Ms X complains that the Council:
• failed to review and update her son’s education, health and care plan in line with statutory timescales and failed to provide an appropriate education for him. She says that, as a result, he missed out on education and suffered distress and isolation;
• failed to communicate with her; and
• named a school which could not meet her son’s needs.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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What I have and have not investigated

4. I have investigated Ms X’s complaints about matters which took place between October 2017 and October 2021 when her right of appeal to the SEND Tribunal arose.
5. I have not investigated Ms X’s complaint that the SEN panel named a school which could not meet C’s needs. This matter is outside our jurisdiction because it is for the Tribunal to decide whether the school named in C’s plan was suitable.

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How I considered this complaint

6. I have considered all the information provided by Ms X. I have also considered the report prepared by the Investigating Officer appointed by the Council at stage 2 of its complaints process.
7. Ms 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

Legal and administrative background

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.

Maintaining the EHC Plan

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).

Reviewing the EHC Plan

10. 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.
11. 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)
12. 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.
13. 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.

Transfer of EHC Plan between councils

14. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)

Personal budget

15. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
16. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
17. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Appeal rights

18. 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.
19. 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)
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

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Key facts

2017

21. Ms X’s son, C, has special educational needs (SEN). He was first issued with an EHC plan in 2016. The family moved into the Council’s area in 2017 and it became responsible for C’s EHC plan.

2018

22. In January 2018 C started at School A. Problems began in September 2018 when he moved to Key Stage 2.
23. In October 2018 there was an annual review. The school sent the review documentation to the Council.

2019

24. In April 2019 the Council confirmed it had received the annual review documentation and would consider this during the summer break and then issue a revised EHC plan. Matters had deteriorated to the point where C was often not attending school. The school was struggling to employ anyone to support him and Ms X was having to go into school to provide support.
25. In May 2019 C stopped attending school.
26. On 5 June Ms X asked the Council to put amendments to C’s EHC plan on hold because his needs had changed since the annual review in October 2018.
27. On 16 July an interim review meeting was held at the school. Shortly afterwards the school submitted the information from the review to the Council.

2020

28. On 29 June the Council wrote to Ms X saying C’s EHC plan would be amended to take account of the review meeting held in July 2019 and it would send her a draft EHC plan for comment.
29. On 24 September an annual review meeting was held.
30. On 13 November the Council issued a final EHC plan following the July 2019 review.
31. On 8 December the Council wrote to Ms X following the interim review of 24 September 2020 saying amendments to the EHC plan would be proposed.

2021

32. An educational psychologist prepared a report. She noted C had been unable to attend school regularly since May 2019 and the school had implemented various strategies to no avail. However, it had found a way to engage C in education which included: swimming lessons, farm school, a science club, dog agility classes and an alternative provision (socialising). The school considered C would be better supported by a specialist school. The EP also recommended a specialist school.
33. In May C began attending an alternative provision funded by the school three hours per week.
34. In the summer the Council sent a draft EHC plan to Ms X for comment.
35. In September C’s attendance at the alternative provision increased to two days per week.
36. The Council issued the final amended plan on 4 October 2021 naming school A.
37. On 20 October 2021 the SEN panel named another school. Ms X appealed to the SEND Tribunal.

2022

38. On 11 February 2022 Ms X complained to the Council. It treated the complaint as a stage 2 complaint and, on 30 June 2022, appointed an investigating officer (IO).
39. On 1 September the complaint investigation was put on hold pending the conclusion of the appeal to the Tribunal.
40. The Tribunal hearing took place in September 2022.

2023

41. On 20 March 2023 the Stage 2 report was issued. The IO upheld most of Ms X’s complaints.

2024

42. On 14 March 2024 the Council wrote to Ms X accepting the IO’s findings and recommendations. It apologised to Ms X and offered to pay her £4950 for missed provision. It also outlined the service improvements it had made following her complaint.

Analysis

43. I am satisfied the stage 2 investigation was thorough. So, I have not re-investigated Ms X’s complaints. I have considered whether the IO’s recommendations represent a satisfactory remedy for the injustice suffered by Ms X and C.

Failure to process documents

44. The IO found that the Council received the documents from the previous council on 27 October 2017 but delayed in processing the information. This meant School A was unable to appoint a teaching assistant (TA) to support C until January 2018. It said it was unable to take C without TA support. So, because of the Council’s delay, C missed half a term of school.

Delay in determining appropriate educational provision for C

45. The IO found that in April 2019 the Council told Ms X it had received the comments from the annual review in October 2018 and would look at them during the summer break and then provide a revised EHC plan. However, it did not do so. That was fault.
46. The IO also found that, at the emergency review meeting on 16 July 2019, the Council said it would provide Ms X with options for specialist provision for C within four weeks but did not do so. That was also fault.
47. The IO also found that, after the annual review meeting in July 2019, the Council failed to take the agreed actions flowing from C’s changed needs and inability to access school. She found there was evidence that a mainstream school could not meet C’s needs, but it was not clear that alternatives were investigated and no alternative provision was named by the Council until it issued a final EHC plan in October 2021. In addition, the Council failed to respond to Ms X’s request for a personal budget. The IO found there was no evidence that a formal decision was made about a personal budget and, if it was, Ms X was never formally notified of the decision or given a right of appeal. That was a further fault.
48. As a result of the Council’s delay in determining appropriate educational provision for C, he was out of school from May 2019.

Failure to comply with statutory timescales

49. The family moved to the Council’s area just before C’s first EHC plan annual review was due in October 2017. The Council should have completed an annual review within 12 months of the EHC plan last being reviewed or three months of the date of the transfer, whichever was later. So, it should have held an annual review by January 2018. This did not happen until October 2018. This was fault.
50. On 29 June 2020 the Council wrote to Ms X saying C’s EHC plan had been amended to take account of the July 2019 emergency review meeting. It said she would be contacted again with an amended EHC plan in due course. The Council therefore delayed in responding to the July 2019 review and sent the amendment notice well outside the statutory time frame. In addition, the IO found no evidence that Ms X was provided with an amended EHC plan. The Council sent her a final EHC plan in November 2020 but she had not been given an opportunity to comment on the proposed amendments. This was further fault.
51. The IO also found that, following the emergency review meeting on 24 September 2020, the Council did not write to Ms X with its decision on whether to amend the EHC plan until 8 December 2020. It should have done so within four weeks of the annual review meeting. Failure to do so was fault.
52. When the Council wrote to Ms X on 8 December 2020 it said amendments to the plan were proposed and would follow. But it did not send the amended EHC plan until several months later. This was fault.
53. The Council’s failure to meet statutory timescales caused Ms X distress and frustration. In addition, it delayed her appeal rights.

Failure to update C’s EHC plan

54. The IO found that, while C was in school, regular review meetings took place and were acted on by the school. However, the Council took months to consider the evidence from these reviews and amend C’s EHC plan to reflect his current needs. Additionally, the plan still named a mainstream school even though C was not attending because of anxiety. As a result, his plan often did not reflect his current needs. This was fault.

Poor communication

55. The IO upheld Ms X’s complaint that the SEN officer failed to respond to her messages over a period of two years. She also found the officer failed to respond to correspondence from the school. This was fault.
56. The IO also upheld Ms X’s complaint that C’s named caseworkers never contacted her or the school. However, this appeared to be because the wrong officers had been named. This was fault and caused confusion.

The Council’s response

57. The Council accepted the IO’s findings and recommendations. It apologised for its failings and said the relevant team had received refresher training on SEN law and regulations and a new and ongoing training programme was now in place.
58. The Council accepted that, because of its fault, C was not in education for five and a half terms. It apologised and offered to pay Ms X £4,950 to acknowledge this loss of educational provision.
59. I have considered whether the Council has provided an appropriate remedy for the loss of education between May 2019 and 4 October 2021 when the right of appeal arose. This was a period of seven terms.
60. Our guidance on remedies states that, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors including: the severity of the child’s SEN as set out in their EHC plan and any educational provision made during the period.
61. C did have access to some educational provision (swimming lessons, farm school, science club and dog agility classes). He also had access to maths, English, science and coding apps which were initially paid for by Ms X to enable C to learn while he was out of school. After a time, the school began funding the apps. In May 2021 C began attending an alternative provision funded by the school. I therefore consider a payment of £900 per term is appropriate. However, the Council has only offered a remedy for five and a half terms lost education when, in fact, C missed out on seven terms of education (October 2017-January 2018 and May 2019-October 2021). I have therefore made recommendations for an increased remedy below.
62. The Council accepted Ms X lost the opportunity to work because of having to look after C when he was out of school and apologised for this. While this goes some way towards remedying the injustice caused, I do not consider this goes far enough. I have therefore made recommendations to remedy Ms X’s injustice below.

Delay in the complaints process

63. Ms X complained to the Council on 11 February 2022. It did not appoint an IO until 30 June 2022. This was a significant delay.
64. On 1 September the complaint investigation was put on hold pending the conclusion of the appeal to the Tribunal. However, the Tribunal hearing took place the same month.
65. The IO did not issue her report until 20 March 2023. This was over 12 months after Ms X complained. This was a significant delay. It then took the Council 12 months to consider the report and provide its response to Ms X. This was a further significant delay and was unacceptable.
66. The Council has apologised for the delay in responding to Ms X’s complaint. However, I do not consider this to be an adequate remedy for the frustration and distress caused. I have therefore made further recommendations below.

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Agreed action

67. The Council has agreed that, within one month, it will:
• pay Ms X an additional £1,350 in recognition of the loss of education C suffered. Ms X should use this for C’s educational benefit;
• refund the amount Ms X paid for apps for C;
• pay Ms X £500 in recognition of the distress she suffered because of the Council’s failings and her delayed appeal rights;
• pay Ms X a further £500 in recognition of her lost opportunity to work because of having to look after C when he was out of school; and
• pay Ms X a further £250 in recognition of the frustration and distress caused by the significant delays in the complaints process.
68. I have not made recommendations for service improvements because the Council has already provided training to the relevant team in relation to SEND law and the Council’s responsibilities. In addition, the Council has added resources to the team to improve the timeliness of EHC assessments and annual reviews.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I find fault by the Council causing injustice.
71. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman