Summary: There was fault by the Council which delayed amending Y’s Education Health and Care Plan following an annual review meeting. There was also poor communication and delay in complaint handling which caused avoidable distress. The Council will apologise, make a symbolic payment of £500 and will make the payment of £2475 it already offered to reflect Y’s loss of educational provision.

The complaint

1. Mr X complained the Council:
1. Made no educational provision for his daughter Y between November 2021 and September 2023;
2. Delayed responding to his complaint at stage two of the complaints procedure; and
3. Did not communicate with him effectively or at all.
2. He said Y had a loss of educational provision and he incurred a financial loss paying for Y’s education. The matter also caused the family avoidable distress.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We provide a free service and use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
6. 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. There are rights of appeal to the SEND Tribunal about key decisions a council makes including amendments to educational provision in an EHC Plan following an annual review and a decision not to carry out an EHC needs reassessment.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

The investigation timeframe

10. Mr X’s complaint is about events which happened over three years and which he was aware of at the time. He complained to us in March 2024. So matters between March 2023 and March 2024 are in time.
11. Events before March 2023 are late with no good reason for the delay in making the complaint to us. Mr X knew in 2022 that Y was out of school and that he had not received the outcome from her annual review meeting. He did lodge a complaint with us. With the passage of time, any injustice to Y in terms of lost educational provision would be too speculative for us to assess and reach a robust finding on. There would be no worthwhile achievable outcome.

Complaints with a right of appeal

12. Although Mr X had a right of appeal against the provision in the amended Plan of May 2023, I have exercised discretion to investigate complaint (a). It was not reasonable for him to appeal as the Council agreed amendments to that Plan in a meeting a week after it was issued. We would not expect a parent to appeal where a council has said it would amend a Plan in line with parental requests.

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How I considered this complaint

13. I considered the complaint to us, the Council’s responses to the complaint and documents summarised later in this statement. I discussed the complaint with Mr X.
14. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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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 including:
• Section I: educational placement or setting
• Section F: special educational provision (SEP)
• Section J: personal budget

16. If a council decides education in any setting is not appropriate for a child with an EHC Plan, it can arrange for provision to be delivered somewhere else and set out in the child’s Plan. This provision is called Education other than at School (EOTAS) (Section 61 Children and Families Act 2014)

17. The council must arrange for an 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.

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 paragraph 9.176) 

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. 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.

21. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request.

22. Councils must secure the SEP in an EHC Plan (Section 42, Children and Families Act 2014)
23. 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. 

24. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases including between primary school to secondary school.
25. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Section 19 Education Act 1996). We refer to this as the Section 19 duty. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory Guidance ‘Alternative Provision’ January 2013)
26. A Personal Budget (PB) 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 PB 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.
27. Our Principles of Good Administrations set out our expectations of councils. They include being citizen-focussed. Councils can demonstrate this by prompt, clear and full communication with the public.
28. The Council’s corporate complaints procedure says it will respond to a complaint made at stage two within 20 working days of receipt.

What happened

Background

29. Y has SEN and has an EHC Plan. Y’s educational placement in 2022 was School A, a special school. She had a history of low attendance.

2023

30. There was an annual review meeting in April 2023. School A said in the record of the review that:
• it could not meet the needs on Y’s EHC Plan. All sections of the Plan were out of date or no longer relevant;
• she had not attended for almost two years; and
• her parents were funding an education package for Y.
31. The record of the review included an outline proposal for an educational package not at a school.
32. The Council issued a letter on 23 May saying it proposed to amend Y’s EHC Plan with an amendment notice.
33. School A emailed the Council at the end of May saying there was no intention for Y to return to school and they had told Mr X school could not meet her needs.
34. A manager from the SEND Team met with Mr and Mrs X at the end of May. An internal email from the manager asked for a reassessment of Y so the Council could update the EHC Plan as all the provision was tailored to a school environment. The manager said Y would need to be taken off the roll of School A and there was no intention of her returning there as it had told Mr X it could not meet her needs.
35. The funding panel considered an outline proposal for an EOTAS package at the end of May, which had educational provision without any costings. The outcome was the relevant officer needed to provide costings with reference to an updated Plan.
36. The SEND Team wrote to the Educational Psychology (EP) service on 6 June saying the Council had decided to carry out an EHC needs reassessment of Y and asked for EP advice about Y to be available within six weeks (so no later than 19 July). The letter noted the deadline for completion of the EHC needs re-assessment was 6 September. The Council told me it did not send a decision letter telling Mr X it had decided to carry out an EHC needs re-assessment.
37. Mr X and the Council exchanged emails in June and July about the educational provision he had arranged privately for Y. He chased the relevant officer in the middle of June who said the Council would cover the cost of ‘core tutoring.’ Mr X chased the officer again for an update on the process of amending Y’s EHC Plan and for the outstanding EP advice. The officer said the Council had ‘agreed his proposed package of support and the invoices he had sent were being processed.’ She also said:
• Mr X would receive an offer of a personal budget for EOTAS and the funding panel had agreed to fund tuition until the end of July
• The EP advice was anticipated mid-July
• From September, Y would have an EOTAS package with clear costed provision with recommendations from the EP and therapists in Section F of the amended EHC Plan.
38. An email from Mr X in July confirmed he had received a copy of the EP advice. That advice described the provision Mr X had arranged for Y:
• Two hours a week of reading tuition and one hour a week of reading activities on-line
• Swimming lesson for 30 minutes a week
• Creative therapy focusing on school trauma (50 minutes a week)
• Yoga class with an OT
• Maths lesson – stopped as Y struggled to access it
• Music therapy – stopped
• Forest school – tried but not successful.
39. Records from the funding panel indicate a direct payment for an EOTAS package was agreed on 8 August (from the beginning of September 2023 to the end of August 2024) with an increase in November to account for cost increases by the providers.
40. The Council issued a draft EHC Plan in August with proposed amendments to Sections F and I. The proposed SEP in Section F was an EOTAS package while Y was unable to attend a setting. The draft Plan included a proposed personal budget in Section J with yearly costings totalling £37,000:
• Music therapy
• Dance and drama
• Animal based educational provision
• English and Maths tuition
• Speech and language therapy
• Occupational therapy
41. An internal spreadsheet indicates a direct payment was authorised to start from September 2023 and an internal email says Mr X received some money in September in advance, to cover Y’s EOTAS for the autumn term.
42. In September, the Council wrote to Mr and Mrs X explaining Y would be due to transfer to secondary school in September 2024 and asked for their preferred placements for Y. The Council said it would issue an amended Plan for Y’s transfer by 15 February 2024.
43. Mr X complained to the Council in September about the matters he has raised with us.
44. The Council’s stage one complaint response in November said:
• In April 2023 there was an annual review meeting and recommendations for amendments to the EHC Plan. The Council issued a decision to amend the EHC Plan in May and Mr X asked for EOTAS at the same time;
• The reassessment started on 7 June 2023, the EP’s advice was received in July;
• The Council agreed an EOTAS package in August. Subsequent changes to the package were approved (due to the cost of some provision);
• There was a delay in processing the paperwork for releasing the payment for the EOTAS package. The Council will contact them directly to resolve this;
• The EOTAS package was intended to start in September 2023. The Council accepted the delay meant Y had lost out on OT provision and an SLT assessment and would take action to resolve this; and
• The Council was sorry for an officer’s failure to respond to their contacts. Team training on effective communication will take place.
45. Mr X was unhappy with the Council’s response and escalated his complaint to stage two in November 2023. He said they had still not received key documents including Y’s amended EHC Plan. He also queried direct payments received and yet to be made and asked for a payment to reflect Y’s past educational provision.

2024

46. Despite chasing, the Council did not reply to Mr X and so he complained to us in March 2024. We told the Council to complete its complaints procedure and asked Mr X to contact us again if he did not receive a final response within 12 weeks, or if he was unhappy with the final response.
47. The Council issued Y’s final amended EHC Plan in May 2024. The relevant sections are:
• Section I is blank, reflecting Y receives EOTAS.
• Section F includes the following SEP: music therapy, animal based educational provision, SLT and OT, art and lego therapy.
• Section J has a personal budget breakdown at just under £39,000.
48. The Council issued a stage two response to Mr X’s complaint at the end of July 2024 saying:
• It was sorry for the delay in responding to the complaint and for the delay issuing draft and final EHC Plans.
• A one-off payment was made and the further payments for the rest of the EOTAS package for September 2023 to July 2024
• It should have made alternative arrangements for Y and as she was without a suitable education. It offered a payment of £2475 to reflect a loss of provision (for a 21-month period, dates not specified) and a symbolic payment of £150 to reflect the time and trouble caused by poor complaint handling.

Information from the Council about the changes it has made to services

49. The Council told us it has established:
• A permanent annual review team to process annual review papers and make decisions
• A dedicated email inbox for placements to send review papers
• Weekly scrutiny of annual review processes including ensuring timeliness and compliance.

Was there fault?

The Council made no educational provision for Y

50. The Council was at fault because:
1. It was aware on receipt of the annual review papers in April 2023 that Y was not attending School A. It should have reviewed her case at this point to consider whether the Section 19 duty applied. It should then have decided whether or not to put in place AP while it completed the annual review and amendment process. The Council has retrospectively accepted it should have secured AP for Y during this period.
2. Y’s amended final Plan was due by July 2023 to be within 12 weeks of the annual review meeting. The Council took until May 2024 to issue a final amended Plan. The delay of nine months was fault.
3. The Council had a duty under Section 42 of the Children and Families Act 2014 to secure the provision in Section F of Y’s (previous) EHC Plan while it was amending it. We do not expect councils to keep a watching brief, but in this case School A had said it could not meet the needs in Y’s Plan, the Plan was out of date and Y had not attended school. The Council should have secured Y’s SEP from April 2023 while amending the Plan.
4. As Y was in Year Six, her phase transfer EHC Plan was due by 15 February 2024. It was not issued until May. This was a delay of three months.
5. The Council did not formally notify Mr X it had decided to carry out an EHC needs re-assessment.

The Council delayed responding to their complaint at stage two of the complaints procedure

51. The Council should have taken 20 days to respond at stage two. It took eight months. This was not in line with its published complaints procedure and was fault.

The Council did not communicate with him effectively or at all.

52. Poor communication has been a theme of this complaint; some of which has been described above. There were failures to send key decision letters, delays and a lack of contact causing the case to drift. The Council was not customer focussed and this was fault.

Did the fault cause an unremedied injustice?

53. The fault described in the last section caused:
• A loss of a term of SEP/AP for Y (April to July 2023), although this was somewhat mitigated by the part-time provision Mr X arranged.
• Avoidable frustration, confusion, uncertainty about Y’s placement for Year Seven and a delay in appeal rights due to the failure to amend Y’s EHC Plan on time
• Avoidable confusion due to the failure to issue a decision to carry out an EHC needs reassessment.
• Avoidable frustration, delay and time and trouble due to poor communication.
54. The internal records provided indicate the Council refunded Mr X for the part-time educational provision he arranged privately for Y. The Council has also now made the full payment for all the EOTAS provision in Y’s 2024 EHC Plan. And the Council has offered a payment of £2475 for lost SEP (for an unspecified period) which is at the high end of our published Guidance on Remedies and is appropriate to reflect Y’s lost education for the period I have investigated. No further payment for lost SEP is due.
55. The Council has made a payment of £150 to recognise avoidable frustration, distress and time and trouble. This is lower than I would expect given the fault and level of distress, frustration and confusion I have found. A higher payment is appropriate and is set out below.

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Agreed action

56. Within one month of my final decision, the Council will:
• An apologise. 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.
• Make a payment of £500 to Mr X to reflect the avoidable distress, uncertainty and time and trouble caused by the Council’s failings.
• Make the payment of £2475 for Y’s lost educational provision.
57. The Council should provide us with evidence it has complied with the above actions.
58. I have not made any recommendations for changes to the Council’s SEND service because the Council has already introduced a dedicated review team and checking processes which will minimise the risk of recurrence.

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Fina decision

59. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman