Summary: Mr X complained the Council has not completed the annual review for his son, Y. He also complained the Council has not funded Y’s Education, Health and Care plan provision. Mr X said this has distressed him and impacted him financially. There was fault in the way the Council did not complete annual reviews within timescales and delayed responding to Mr X’s complaint. This distressed Mr X and frustrated his right of appeal to the Tribunal. The Council has agreed to apologise and make a financial payment.

The complaint

1. Mr X complained the Council has not completed the annual review for his son, Y. He also complained the Council has not funded Y’s Education, Health and Care (EHC) plan provision. Mr X said this has distressed him and impacted him financially.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. 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)
6. I have considered events in this case since August 2023. I reference events prior to this for context in this matter. I have not investigated earlier events as Mr X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

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How I considered this complaint

7. I read Mr X’s complaint and spoke to him about it on the phone.
8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. 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

Background information

10. 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. 
11. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. 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.
13. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
14. 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.
15. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
16. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
17. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
18. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
19. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
20. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
21. The Council website says it will respond to complaints within 15 working days.

What happened

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
23. Y has additional needs. The Council issued his EHC plan in April 2021.
24. Mr X started EHE for Y in June 2021. The Council noted it completed home visits to ensure Y was safe.
25. Mr X complained to the Council in February 2024. He complained the annual review was overdue.
26. The Council responded to the complaint in March 2024. The response accepted the Council should have completed a review in November 2023 and did not. The Council accepted the review was overdue. The Council confirmed it would accept a complaint about provision.
27. In April 2024, Mr X complained about funding for Y’s provision. He said the Council had not held the annual review, so he had not had an opportunity to ask for funding.
28. The Council responded to Mr X’s complaint in July 2024. The Council accepted the review was overdue and apologised. The Council told Mr X when a child is EHE, parents are responsible for funding.
29. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to provide a financial remedy.
30. In response to my enquiries the Council accepted delays in the annual review process, but repeated Mr X was responsible for funding EHE.

My findings

Annual review and amending the EHC plan

31. It is clear from the documentation, and the Council has admitted, there have been delays in this case. The Council should review an EHC plan every 12 months. It said it completed a review in 2022. I have not seen evidence of this, but this is before this investigation is considering.
32. The Council accepted it did not complete any review in 2023 or 2024. The plan was not up to date with Y’s needs. This is fault and distressed Mr X and frustrated his appeal right to the Tribunal.
33. However, this investigation has only considered events in this case from August 2023. We can therefore only recommend a remedy for missed reviews in 2023 and 2024.

Funding

34. The guidance, referenced in paragraph 17, says people can home educate a child but they must arrange and fund all the child’s education, including any special educational provision they need.
35. This guidance confirms if a child is EHE, the parent is responsible for funding education and plan provision. The Council can, but has no duty to, provide funding. The Council has considered this matter but decided not to fund Y’s EHC plan provision. This is a decision the Council is entitled to make. The Council was not at fault.

Complaint handling

36. The Council website says the Council will respond to a complaint within 15 working days. Mr X complained in April 2024. The Council responded in July 2024, three months later. This is more than the 15 days the Council stated. This is fault, frustrating Mr X.

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Agreed action

37. To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for not completing the annual reviews. 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.
• Pay Mr X £200 as an acknowledgement of the distress the Council fault caused and frustrating his right of appeal to the Tribunal.
38. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

39. I found fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman