Summary: Mr X complains the Council delayed issuing his son Y’s Education, Health and Care Plan (EHC Plan). We find fault with the Council for delay in issuing Y’s EHC Plan, poor communication and missed education and provision. We have suggested financial remedies for the frustration and distress caused.

The complaint

1. Mr X complains the Council failed to:
• Complete his son Y’s Education, Health and Care Plan (EHC Plan) in line with statutory time scales;
• Communicate adequately with him about the Panel outcome and provide provision agreed for Y;
• Provide education for his son for 4 weeks;
• Provide therapeutic provision for Y as stated in his EHC Plan.
2. This caused Mr X frustration and distress. He would like an apology from the Council, for his son to be in full time education, and compensation.

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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. 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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

7. I spoke with Mr X and considered the information he provided.
8. I made enquiries with the Council and considered the information it provided.
9. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
10. Mr 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

Education, Health and Care Plan

11. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
12. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
13. 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.
14. 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) 
15. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Appeal right

16. 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.

Alternative provision

17. Councils have a duty to arrange 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. (Section 19 of the Education Act 1996)
18. 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)
19. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Council’s complaints procedure

20. The Council has a two stage complaints procedure:
• Stage one – a response from an appropriate officer within four weeks.
• Stage two – a response from a manager within five weeks.

What happened

21. Mr X adopted his son Y in 2022 and following planned transition sessions Y started school in September 2022, transferring his EHC Plan from his old school.
22. Y had his annual review on 8 February 2023, with the decision to amend sent by the Council on 9 March.

Complaint A

23. Mr X made a complaint to the Council in September 2023 as Y’s school told him Y did not have an EHC Plan and the review had not been completed following the annual review process.
24. The Council responded a week later and upheld Mr X’s complaint as the EHC Plan was still not completed.
25. The Council apologised and said it would send a draft EHC Plan to Mr X by the end of the month, and as he had sought a specialist school for Y it will put this forward to the next Panel to decide.
26. Mr X made a stage two complaint in October but the Council could not uphold the complaint as it had carried out the actions put forward in its stage one response.

Complaint B

27. Mr X asked for an update on the Panel on 1 November and Council responded on 8 November confirming it would go to Panel on 16 November. Mr X chased the Council for a response on the Panel outcome on 20 and 27 November.
28. At the end of December 2023 Mr X complained the Council had not told him of the Panel decision, and was dissatisfied with the communication from the SEND team.
29. The Council responded in January 2024 saying it had sent the EHC Plan to Panel to review on 7 November. On 16 November the Panel did not agree that Y met the guidance for learning difficulty provision but did meet criteria for a Social, Emotional and Mental Health (SEMH) provision. The Council identified a specialist setting and sent the decision to Mr X on 2 January and consulted with the specialist school on 3 January.
30. The Council apologised and partially upheld Mr X’s complaint saying its communication was not as timely as it should have been due to pressures on the SEND service. To improve this it has a £5million investment in the SEND service to recruit up to 80 staff and reduce caseloads by 30%.
31. Mr X escalated this to a stage two complaint in February and the Council responded in April apologising for the delay in response. It said it had not completed the communication with the specialist school within the timeframe given and apologised for the frustration caused.
32. The Council said it had told Mr X that Y had a place at the specialist school to start in September and it would consult with two mainstream schools for Y to attend in the meantime.
33. Y's EHC Plan was updated to reflect the changes in Section I, however Mr X asked what education Y would be accessing before attending the mainstream school. The Council requested an alternative education package for Y by a tutoring company.
34. On 15 March the tutoring company said Mr X did not want to access online tuition. The Council clarified this and Mr X agreed to the online provision. The Council then did not respond to the tutoring company so the provision did not start. The Council apologised.
35. The Council upheld the complaint and offered £400 for the missed provision and £100 for distress and anxiety caused to Mr X.

Complaint C

36. Y was expelled from school on 23 February 2024. Mr X educated Y at home with materials provided by the school for the following week. On 14 March the school confirmed the decision to expel Y. He was without any education until 1 May.
37. On 2 May Mr X complained to the Council that Y had three hours of education a day from 2 May, and had missed four weeks of education (excluding Easter holidays).
38. The Council responded in June saying it could not show whether Y was offered full time education following the 6th day of his exclusion. It said the provision provided followed the Nurture Approach due to Y being unable to cope with the demands of the curriculum and unable to accept direct teaching. He was given learning activities for 2.5 hours a day for ten days.
39. The Council said it gave an apology and monetary remedy in its previous complaint response of 16 April. This was accepted and had been paid. It apologised again for the lack of consistent communication prior to March 2024 and offered an added payment of £300 for Y’s missed provision between 16 April and 2 May, and £100 for the distress caused because of the delay.

Complaint D

40. In June and July 2024 Mr X complained to the Council about the delay in issuing the EHC Plan, Y not being provided with further tuition to prepare him for his school place in September, and not receiving the agreed therapeutic activities outlined in the EHC Plan.
41. The Council accepted it did not issue the EHC Plan within the 20 week time limit. The final EHC Plan was issued in March 2024, after the annual review in November 2023.
42. During the time Y was without education Mr X had to take time off work and get a lodger as he was struggling financially. In the complaint response the Council apologised for the delay and reiterated its previous offer of £700 for seven weeks missed provision and £200 for distress. It explained the 15 hours of 1:1 tuition is considered to be full time and apologised for not securing the therapeutic activities.
43. It offered a further £100 per month (£500 total) for the missed therapeutic activities, a total offer of £900. The Council also sought support from the specialist school to help transition Y to their setting from September 2024.
44. Mr X says he is out of pocket because the Council did not do what it was supposed to. He is also frustrated at the lack of communication from the Council which did not stick to its ten-day response policy. He brought his complaint to the Ombudsman.

Analysis

Complaint A

45. The Council failed to complete the annual review process within the statutory time limits (see paragraph 15).
46. This is fault by the Council for which it apologised in its complaint response. This caused Mr X frustration and distress.

Complaint B

47. The Panel sat on the 16 November 2023 and the Council did not tell Mr X the outcome until January 2024. This is fault by the Council causing frustration and uncertainty to Mr X.
48. The Council then failed to communicate with the specialist school as stated in its stage one response, and also failed to arrange the online tuition as agreed with Mr X. This is fault causing Mr X frustration and distress, and loss of opportunity for Y.
49. The Council’s stage two response was late, and not in line with its complaint procedure (see paragraph 20). This was frustrating for Mr X.

Complaint C

50. Y missed four weeks of education after being expelled from school. This is fault by the Council (see paragraph 17) for which it apologised and offered £300 for the missed provision and £100 for the distress caused by the delay.
51. This caused Mr X financial hardship as he could not work while Y was out of education.

Complaint D

52. The Council failed to issue the EHC Plan within the statutory time limits following the annual review. This delayed Mr X’s right of appeal and caused frustration and distress.
53. The school could not secure the therapeutic provision offered to Y and the Council failed to maintain oversight of this. This is fault causing loss of opportunity to Y, and frustration and distress to Mr X.

Remedies and Service improvements

54. The amounts put forward by the Council to remedy the injustice caused are in line with the Ombudsman’s Guidance on Remedies (see paragraph four).
55. In December 2023 the Council published its Special Educational Needs and Disabilities (SEND) Improvement Plan to address widespread and systemic failings found during the Ofsted inspection. The failings which impacted Y and Mr X are within the areas the Council has undertaken to improve. We will be monitoring the effectiveness of the Council’s actions through our casework.
56. I am aware we have made service improvements to this Council on similar cases recently (22016964, 23012750 and 23021086). It is clear the Council is experiencing issues which the Ombudsman has addressed. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements.

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Agreed action

57. Within one month of the final decision the Council should:
• apologise to Mr X and for the injustice caused to him by the faults identified. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• I agree with the Council’s remedy of £300 for the delay between 16 April and 2 May. This should be paid to Mr X.
• I agree with the Council’s remedy of £500 for the missed provision from March to July. This should be paid to Mr X.
• Pay Mr X £400 to recognise the impact on Y of the Council’s failings within the reviews of his EHC Plans and for the distress and frustration caused to Mr X for the faults above. This is a symbolic amount based on our Guidance on Remedies.
• The total payment to Mr X is £1200.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I find fault with the Council for delay in issuing Y’s EHC Plan, poor communication and missed education and provision. I have suggested financial remedies for the frustration and distress caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman