Summary: Mrs X complained the Council delayed updating her child’s Education, Health and Care Plan following the annual review meeting in February 2024. Mrs X also complained the Council to failed to secure the promised educational provision for her child by September 2024. We found fault with the Council delaying for four and a half months in completing the annual review process of Mrs X’s child’s Education, Health and Care Plan. We also found fault with the Council naming an incorrect educational placement in the Education, Health and Care Plan. The Council agreed to apologise to Mrs X and pay her £200 for the avoidable distress and inconvenience caused. The Council also agreed to complete an annual review of Mrs X’s child’s Education, Health and Care Plan in which it considers access to education and the request to complete a reassessment.

The complaint

1. Mrs X complained the Council delayed updating her child’s Education, Health and Care Plan following an annual review meeting taking place in February 2024.
2. Mrs X also complained the Council failed to put promised educational provision in place for her child from September 2024.

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The Ombudsman’s role and powers

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)
4. 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)
5. 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)
6. 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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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

9. I have investigated Mrs X’s complaint from 26 February 2024 to 24 September 2024. I have referenced matters before 26 February 2024 for contextual information but have not made any findings about what happened before 26 February 2024.
10. I have not investigated matters before 26 February 2024 because the Ombudsman has already conducted an investigation into these issues. The Ombudsman does not double-handle complaints.
11. I have partially investigated Mrs X’s complaint about the content of the EHC Plan the Council produced on 14 August 2024. I have investigated Mrs X’s complaint about naming the previous school in section I of the EHC Plan. This is because this was a clear error by the Council, and it would not be appropriate to appeal to the SEND Tribunal about this matter.
12. However, I have not investigated any other concerns Mrs X may have had about the contents of her child’s educational provision detailed in Section F of the EHC Plan. This is because any dispute about the content or wording of the EHC Plan was appealable to the SEND Tribunal as the correct body to consider this.
13. I have ended my investigation on 24 September 2024 because the Council issued its Stage 2 complaint response on 13 September 2024 and we agreed to investigate Mrs X’s complaint on 24 September 2024. A council must be given opportunity to address a complaint before the Ombudsman investigates.

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How I considered this complaint

14. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
15. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

16. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
17. 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 re-assessments, and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
18. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  
19. A council should consider completing a re-assessment of a child’s needs if a request is made by a child’s parents or their school according to the Children and Families Act 2014. A council may decline completing a re-assessment if it does not consider it necessary to do so.
20. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
21. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

22. Mrs X’s child, who I shall refer to as Y, had an EHC Plan.
23. The Ombudsman’s investigation into Mrs X’s previous complaint found fault with the Council delaying outside the statutory timescales for production of Y’s EHC Plan and found potential delays in starting educational provision out of school.
24. In January 2024, Y’s school started to provide education to Y outside the school setting through tutoring and online learning.
25. On 26 February 2024, Y’s school held an annual review meeting for Y’s EHC Plan for transition to post-16 education. A council officer attended this annual review meeting. The annual review meeting notes detailed that Y was engaging with tutoring and online learning but needed a more suitable package of Education Otherwise That At School (EOTAS) or an appropriate specialist setting. The meeting notes confirmed an agreement for the Council to put in place an EOTAS package from September 2024 for Y.
26. The Council chased Y’s school for the EHC Plan paperwork on 8 May 2024 and 22 May 2024. Y’s school provided the paperwork on 24 May 2024.
27. On 1 July 2024, the Council agreed an EOTAS package for Y from September 2024 totalling eleven and a half hours a week.
28. On 29 July 2024, Mrs X made a formal complaint to the Council. Mrs X complained the Council had failed to finalise Y’s EHC Plan. Mrs X said she was concerned the Council would not provide suitable EOTAS for Y in September 2024 including increasing Y’s EOTAS provision and provision of a laptop.
29. The Council provided a Stage 1 complaint response on 12 August 2024. The Council said:
• It experienced delays in getting the EHC Plan annual review paperwork from Y’s school and only received this on 24 May 2024.
• It apologised for the delay in the EHC Plan annual review process and for delays in providing information about the provision it would put in place for Y in September 2024.
30. On 14 August 2024, the Council issued a Final EHC Plan for Y. Within Section F of Y’s EHC Plan the Council detailed that Y would receive EOTAS including a daily meeting with a key adult. Despite this, the Council named Y’s school in Section I of the EHC Plan. The Council detailed the appeal rights to the SEND Tribunal.
31. Mrs X requested a Stage 2 complaint response on 14 August 2024. Mrs X disputed the Council naming Y’s school in Section I of the EHC Plan. Mrs X also complained the Council had failed to provide information about the educational package being put in place, failed to provide additional education as promised in the timetable or provided a laptop as promised.
32. On 30 August 2024, the Council agreed funding for Y’s laptop.
33. In the week starting 9 September 2024, Y started to attend the EOTAS provision.
34. On 13 September 2024, the Council provided its Stage 2 complaint response. The Council accepted it had delayed producing Y’s EHC Plan. The Council confirmed it had approved funding for Y’s laptop and the timetable set out in the EHC Plan but not for the promised uplifted educational package.
35. On 16 September 2024, the Council agreed the extra funding for the uplift to Y’s educational package.
36. Y’s attendance at the EOTAS provision started to decline from 23 September 2024 with sporadic engagement by the end of October 2024.

Analysis

EHC Plan review

37. When a young person moves from secondary school to a post-16 institution, or other educational provision, the Council must ensure their EHC Plan is reviewed and amended by 31 March 2024 in the calendar year of the transfer.
38. Y’s school held the EHC Plan annual review close to the deadline of 31 March 2024, on 26 February 2024, which would have allowed minimal time for the Council to complete the EHC Plan review. The school then failed to submit the paperwork to the Council until 24 May 2024.
39. It is not the role of the Ombudsman to investigate the actions of schools. We cannot find fault with the actions of the school which contributed towards the delays in the review of Y’s EHC Plan. Regardless of the school’s actions, the Council was still ultimately responsible for ensuring it reviewed and amended Y’s EHC Plan by 31 March 2024. The Council failed to ensure Y’s school held the annual review meeting early enough and failed to ensure Y’s school passed over the annual review meeting documentation in good time; this was fault.
40. The Council’s fault meant it delayed by four and a half months outside the statutory timescales in producing an amended final EHC Plan for Y in their phase transfer year. This delay would have caused avoidable uncertainty and distress to Mrs X about what educational provision would be available to Y in September 2024.
41. While the Council’s delays would have caused Mrs X inconvenience and distress, this did not impact on educational provision available to Y from September 2024. The Council completed the final EHC Plan before September 2024 and ensured funding was in place for most of Y’s provision. The Council’s fault caused an injustice to Mrs X but not Y.

Section I of Y’s EHC Plan

42. When a council decides a young person should access education through EOTAS rather than in a formal education setting, the Council should leave Section I of an EHC Plan blank and detail the EOTAS provision in Section F.
43. The Council continued to name Y’s previous school in Section I of Y’s EHC Plan on 14 August 2024 despite detailing Y’s EOTAS provision in Section F. The Council has accepted this was fault.
44. While this was fault, this did not present an injustice to Y because the Council had detailed the EOTAS provision it would provide Y within section F of the EHC Plan. The Council had also started the process of arranging to provide this EOTAS provision from September 2024 without any involvement from Y’s previous school. This meant that naming Y’s previous school in Section I created some confusion but did not cause any change to Y’s education from September 2024.
45. The Council has confirmed to the Ombudsman it will arrange for an annual review of Y’s EHC Plan so it can remove Y’s previous school from Section I of the EHC Plan. This is appropriate action for the Council to take to resolve this aspect of the complaint.

Decision not to reassess

46. During Y’s annual review meeting, Mrs X and Y’s school requested a re-assessment of Y.
47. The Council decided not to reassess Y’s needs because Y was finding it difficult to access education and was transitioning to a new phase of education shortly following the EHC Plan review. The Council decided it would amend Y’s EHC Plan and agreed to a full EOTAS package to support Y to re-engage with education and work towards attending college. The Council said once Y’s access to this provision improved it could complete a suitably informed re-assessment of Y’s EHC Plan.
48. The Council has acted correctly to consider the request to complete a reassessment of Y’s needs and presented a rationalised decision not to carry this out. This decision was one the Council was entitled to make and is not something the Ombudsman can find fault with.
49. Similar to the content of Y’s EHC Plan, if Mrs X was dissatisfied with the Council’s decision not to complete a reassessment of Y’s EHC Plan, she could have appealed this to the SEND tribunal.
50. While I have not found fault with the Council for this part of the complaint, the Council should reconsider the request to complete a reassessment of Y’s needs as part of its agreement to complete an annual review of Y’s EHC Plan. This is because the Council made a previous decision to revisit the request to reassess Y’s EHC Plan once Y had spent some time accessing the post-16 EOTAS provision.

EOTAS

51. Mrs X complained the Council failed to provide suitable EOTAS for Y from September 2024.
52. The Council has evidenced it made available the EOTAS package detailed in Section F of Y’s EHC Plan from 9 September 2024. Y at first engaged in this EOTAS package before reducing attendance. Y’s reduction in attendance is after the Council’s Stage 2 complaint response meaning the Council has not had opportunity to address this before the complaint was brought to the Ombudsman. As explained in paragraph 13, I have not investigated matters after 24 September 2024.
53. As part of the Council’s review of Y’s EHC Plan it will need to review Y’s current package of EOTAS and decide if this is, or is not, working for Y. While I have not investigated Y’s ongoing access to education after 24 September 2024, this recommendation will directly address any issues with this.

Service improvements

54. The Ombudsman is aware that Somerset Council is currently undergoing a significant transformation programme for its SEND services following development of a SEND action plan. The Ombudsman is overseeing Somerset Council’s wider SEND strategic plan which includes the issues identified in this complaint. For this reason, I am not making any service improvements.

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Action

55. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and pay her £200 for the distress and inconvenience caused by the four and a half months of avoidable delay in reviewing and amending her child’s EHC Plan.
56. Within two months of the Ombudsman’s final decision the Council should:
• Arrange and complete annual review for Y’s EHC Plan so it can review Y’s current package of education and decide if this is suitable for Y and remove Y’s previous school from being named in Section I of the EHC Plan.
57. Within three months of the Ombudsman’s final decision the Council should:
• Consider Mrs X’s, and Y’s previous school’s, request for a reassessment of Y’s needs as part of completing the annual review of Y’s EHC Plan. The Council should present its decision about whether it will or will not reassess Y’s needs within four weeks of the annual review meeting.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. There was fault leading to injustice. As the Council has agreed to my recommendations, 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