Summary: Mrs E complained the Council delayed finalising her daughter’s Education, Health and Care Plan after an annual review in May 2023. She also complained how the Council handled her daughter’s educational provision when she stopped attending school in February 2023. We find the Council was at fault for its delays in finalising Mrs E’s daughter’s Education, Health and Care Plan after the annual review. It was also at fault for how it handled Mrs E’s daughter’s educational provision when she could not attend school. The Council has agreed to my recommendations to address the injustice caused by fault.

The complaint

1. Mrs E complained the Council delayed finalising her daughter’s (F) Education, Health and Care (EHC) Plan after an annual review in May 2023. She also complained how the Council handled F’s educational provision when she stopped attending school in February 2023.
2. Mrs E says the matter has caused distress and upset to her and F.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

6. I considered information from Mrs E. I made written enquiries of the Council and considered information it sent in response.
7. Mrs E 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

Special educational needs

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. 

Reviewing EHC Plans

9. 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.
10. 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.
11. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the existing EHC Plan and amendment notice to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
12. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

Alternative provision

13. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

17. This chronology provides an overview of key events in this case and does not detail everything that happened.
18. F has special educational needs and an EHC Plan. She stopped attending school in February 2023 because of her anxiety. Mrs E emailed the Council in April and said F’s school placement had broken down and she was not receiving an education.
19. The school held an annual review of F’s EHC Plan in May. Mrs E said it was better for F’s mental health if she had Education, Otherwise Than At School (EOTAS).
20. The Council emailed Mrs E in early June and said it had sent her request for EOTAS to the panel.
21. The panel asked for more information and evidence regarding F’s mental health. The Council spoke to Mrs E and explained this. It also sent her a letter and said it would not amend F’s EHC Plan.
22. Mrs E provided further information to the Council in mid-June. She emailed the Council in late June and asked for an update on F’s case. She chased for a response in early July. The Council responded in mid-July and said the panel would consider the further information. It emailed Mrs E a few days later and said the panel had agreed to EOTAS.
23. The school arranged for F to receive six hours per week of home tuition from September.
24. Mrs E emailed the Council in October and said she was unhappy it had failed to complete F’s annual review.
25. The Council sent Mrs E a proposed amended EHC Plan. Mrs E replied with her comments in early November.
26. Mrs E complained to the Council in January 2024. She said it failed to meet the annual review statutory timescales and it failed to provide F with full time education. She said F had not received any educational provision for six months of 2023, and she had received only six hours per week of education from September 2023.
27. The Council issued F’s amended EHC Plan in June. This included an EOTAS package of 15 hours per week of tuition.
28. The Council responded to Mrs E’s complaint in July. It said F’s case officer changed three times which led to a delay in processing the annual review paperwork. It also said the officer sent the initial paperwork to the wrong panel. The officer changes meant there was a delay of F receiving tuition. However, it said F received SALT and most of her OT when she stopped attending school. It apologised for the distress and upset caused. It offered £1,000 to recognise the time F was without any education from February to July 2023. It also offered £920 to recognise the eight OT hours F missed and a further £300 for Mrs E’s time and trouble.

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Analysis

29. The Council was at fault for its delay in finalising F’s EHC Plan after the annual review. The Council had until August 2023 to finalise the Plan. It did not finalise it until June 2024. This delay is significant. I note the Council wrote to Mrs E in early June 2023 and said it would not amend F’s EHC Plan. However, this appears to have been written in error as the panel’s decision was that further information was necessary to decide whether EOTAS was suitable for F. Mrs E provided this information, and the Council confirmed the following month it would agree to EOTAS.
30. The Council was also at fault for how it handled F’s educational provision when she stopped attending school. It has a duty under section 19 of the Education Act 1996 to provide suitable education for children who are not attending school. It became aware in April 2023 F had not attended school since February. F started home tuition in September 2023, which means she had no education for several months. I do note in this time she did receive SALT and most of her OT in line with section F of her EHC Plan.
31. F only received six hours per week of tuition from September 2023. Section 19 of the Education Act 1996 says education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests. Six hours per week of education is significantly short of a full-time education. Mrs E has explained F was engaging well with the sessions. There is no evidence the Council kept F’s part time education under review or assessed if she could cope with more hours. This is fault.
32. I welcome the Council has accepted its fault and proposed a remedy to resolve the matter. However, I am not satisfied it fully addresses the injustice in this case. If it had acted without fault, it is likely F would have received her EOTAS package from September 2023 rather than June 2024. F would have had access to 15 hours per week of tuition, rather than six. Therefore, F’s injustice does not end in July 2023 as the Council has proposed. My recommendations start from April 2023 (when the Council became aware F was not attending school) and ends in June 2024 (when the Council issued F’s amended final EHC Plan).
33. The Council’s faults also caused Mrs E distress and upset, and she had to repeatedly chase for updates. The Council recognised this and offered £300. This in line with our guidance on remedies and so I do not offer anything further.

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Agreed action

34. By 22 November 2024 the Council has agreed to:

• Pay Mrs E the £300 it offered to acknowledge her distress and upset.
• Pay Mrs E £4,000 to reflect the lack of educational provision for F from April 2023 to June 2024. We suggest Mrs E uses this payment for F’s educational benefit.

35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. There was fault by the Council, which caused Mrs E and F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman