Summary: Mrs X complained the Council took too long to respond to her request for a change to her child, Y’s, Education, Health and Care Plan. The Council was at fault. This caused Mrs X upset and frustration and meant Y missed out on special educational provision. To remedy Mrs X’s injustice, the Council will apologise. It has already paid her £300, which is an appropriate sum. If Mrs X feels the Council’s fault impacted on Y’s development and education, she can seek additional provision as part of her ongoing appeal to the SEND Tribunal. The Council will issue a staff reminder to prevent the fault happening again.

The complaint

1. Mrs X complained the Council took too long to respond to her request for a change to her child, Y’s, Education, Health and Care Plan. Mrs X said, as a result, Y did not receive a suitable education, she could not prepare for Y’s exams, and she lost out on her right to appeal Y’s education arrangements to the SEND Tribunal.

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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)
4. 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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How I considered this complaint

5. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. Mrs 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

Relevant law and guidance

Education, Health and Care Plans

7. 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. Section F sets out the special educational provision the child or young person needs.
8. The SEND Tribunal considers appeals about council decisions on a child or young person’s special educational needs. Matters the SEND Tribunal can consider includes appeals on the content of section F of a child or young person’s EHC Plan. The child’s parent or young person can only appeal on section F once they receive a copy of the final EHC Plan.

Annual reviews

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.
10. Annual reviews start with a meeting. Caselaw has set out that if, after the annual review meeting, the council decides to amend the child or young person’s EHC Plan, it must do so within 12 weeks of the date of the meeting.

Education Otherwise Than At School

11. Education Otherwise Than At School (EOTAS) is a form of education where a child or young person has education outside of a formal school setting, made up of provisions which meet the student’s individual needs. It can include tutoring, educational visits, social experiences and various therapies. If a child or young person has an EHC Plan, their EOTAS package is set out in the Plan.

EHC Plan Personal Budgets

12. 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.

What happened

13. Y has complex needs and a difficult history with education. They have had an EHC Plan for several years. In December 2021, the Council issued an EHC Plan which noted Y received an EOTAS package, instead of attending a school. The EOTAS package included 40 minutes of art therapy per week.
14. In early September 2023, Mrs X told the Council she wanted to make changes to Y’s EOTAS package and their EHC Plan personal budget.
15. Mrs X chased the Council for a response several times in November and made a complaint in December. Meanwhile, the Council replied to Mrs X to say it would consider her request and contact her the following week.
16. As it had not done so, Mrs X further chased the Council for a response in January 2024. It said it would ask decision-makers to consider her request as soon as possible.
17. In mid-January, a case officer held a meeting with an advocate working for Mrs X to discuss her proposed amendments to the EOTAS package.
18. The Council responded to Mrs X’s complaint in late January 2024. It apologised it had delayed considering Mrs X’s request and explained this had happened because of a mistake by staff and later because of staffing issues and the absence of a manager.
19. After a further chase from Mrs X, in mid-March 2024, a new case officer asked for another meeting with Mrs X’s advocate to discuss the proposed amendments. After Mrs X highlighted there had already been one meeting, the officer explained there were no notes of that meeting.
20. Mrs X requested a stage two response to her complaint, which the Council replied to in mid-June. It accepted it had delayed responding to Mrs X’s request for a change to the EOTAS package and personal budget and that its communication with her about those changes had been poor. It apologised and offered Mrs X £300 in recognition of the impact of those failings.
21. In late July 2024, the Council issued an amended EHC Plan for Y. The Plan no longer included weekly art therapy and instead stated Y would receive two 50 minute sessions of adolescent therapy per school week. The rest of the provision remained fundamentally unchanged from the 2021 EHC Plan. Mrs X was unhappy with the content of the Plan so she appealed section F to the SEND Tribunal.

Findings

22. The Council issued Y’s previous EHC Plan in December 2021. It did not carry out an annual review in 2022, meaning it missed an opportunity ensure Y’s EHC Plan. Therefore, when Mrs X asked the Council to make amendments to Y’s EOTAS package and personal budget in September 2023, the Council should have promptly held an annual review to consider those amendments. It did not do so, and instead responded to them outside the review process. This was fault.
23. The Council significantly delayed considering Mrs X’s proposed amendments. It ultimately issued Y’s final amended EHC Plan a full academic year after Mrs X made her request. This was also fault. The Council has explained some of the delay was because of a staff mistake followed by staffing issues and a manager’s absence. The failure of the case officer to keep suitable records of the meeting they had with Mrs X’s advocate in January 2024 or take any substantive action after that meeting contributed to the delay.
24. Had the Council held an annual review to consider Mrs X’s request for amendments, it would likely been able to have issued Y’s amended EHC Plan by early December 2023, in accordance with the statutory timescale. The special educational provision in Y’s 2024 EHC Plan was largely the same as that in the 2021 Plan. However, it did state that Y would receive two 50 minute sessions of therapy per week, instead of one 40 minute session. Therefore, the faults set out in paragraphs 22 and 23 meant that Y missed out on receiving that additional provision for the end of the autumn 2023 term and the entire of the spring and summer 2024 terms. This was an injustice to them.
25. The faults also caused Mrs X significant frustration and upset and meant she did not receive her right of appeal to the SEND Tribunal when she should have. Mrs X has now appealed to the SEND Tribunal, which is the appropriate way to challenge the contents of Y’s EHC Plan. If Mrs X feels W’s lost provision impacted on their education and development, it is open to her to seek additional provision as part of her appeal. I have therefore not made a recommendation to remedy Y’s injustice below.
26. The Council has accepted its communication with Mrs X was poor. I agree with this conclusion. The Council did not respond to Mrs X’s September 2023 request until she made a complaint in December. It then assured Mrs X it would consider her request and contact her the following week. It did not. This was further fault, which added to Mrs X’s frustration and upset.

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Agreed action

27. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration and distress she felt because of its failure to hold an annual review when it should have, the delay in considering her requested amendments and its poor communication. We publish 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.
2. Remind staff that when they receive a request for an amendment to a child or young person’s EHC Plan, they should decide whether to hold an annual review to consider that request.
28. The Council will provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman