Summary: Mr X complained the Council failed to comply with the statutory process for completing an annual review of his child’s Education, Health and Care Plan. We find the Council at fault for a delay in issuing the Education, Health and Care Plan. This delayed Mr X’s appeal rights and caused distress and frustration for the family. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Mr X complained the Council failed to comply with the statutory timeframe for completing an annual review of his child, B’s, Education, Health and Care Plan, which prevented him from accessing his appeal rights. He also complained the Council failed to provide B with access to education and the provision detailed in his Education, Health and Care Plan, communicated poorly, delayed in responding to his complaints and threatened to involve educational welfare when he requested support with B’s attendance. Mr X told us the Council’s failings have made him constantly anxious and angry. Mr X would like the Council to acknowledge the faults which have occurred, provide a suitable remedy and ensure B has access to the correct support.

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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(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).

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

EHC Plans and annual reviews

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. 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. 
8. 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) 
9. 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.

School attendance

10. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
11. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

What happened

12. B stopped attending school in January 2024.
13. An annual review meeting took place towards the end of February. During the annual review Mr X requested B’s EHC Plan be amended to support an EOTAS package.
14. In accordance with the statutory timeframes the Council should have issued B’s final amended EHC Plan by the middle of May.
15. The week after the annual review meeting, the Council’s Decision Making Group (DMG) agreed to provide an EOTAS package for B. This decision was communicated to Mr X two days later.
16. In the second week of March, the Council’s Alternative Provision Panel (APP) agreed to provide B with 10 hours per week of tuition in the community. This decision was communicated to Mr X two weeks later. B’s keyworker emailed Mr X to explain the decision and told him the Council had started to search for a suitable tutor to provide the provision.
17. Mr X responded to the keyworker and told her his understanding was the family got to pick the tuition and what the EHC Plan funding would be used for. The keyworker responded to Mr X the following week to explain the Council is responsible for arranging EOTAS provision. The keyworker asked Mr X to provide details and costings for any provision the family would like to be provided and this information could be considered by the APP.
18. Mr X contacted the key worker again a few days later. Mr X explained he had been contacted by a tuition provider who wanted to visit B at home. Mr X raised concerns that he had not agreed to any specific providers and explained home tuition and visitors in the home were not suitable for B. Mr X put forward an alternative tuition provider and said he was in the process of looking into other options.
19. The DMG considered Mr X’s tuition request the following week. The group did not agree to Mr X’s choice of tutor but asked the APP to consider whether the Council’s chosen provider could provide tuition outside of B’s home.
20. B’s keyworker emailed Mr X at the end of April to explain the DMG’s decision and explained they would be in touch once a decision had been made by APP.
21. Council records show the APP considered Mr X’s tuition request and decided it could not issue a contract to Mr X’s chosen provider, but it would ask the Council’s chosen provider to start with online provision with a view to build up to in person sessions.
22. Mr X contacted B’s keyworker in the second week of May to ask if the Council had made a decision about the requested tuition. Mr X also asked the keyworker to provide information about requesting a personal budget.
23. B’s keyworker responded to Mr X within 2 working days. The keyworker explained the Council had not agreed to Mr X’s requested tuition provider, but the Council had contacted its chosen provider to ask if sessions could be provided online, rather than in the home. The keyworker explained the Council’s personal budget request process and asked Mr X to provide three quotes for each request he would like to submit. The request would then be submitted to panel for a decision.
24. The following week Mr X contacted the keyworker to request a copy of the updated EHC Plan and all the information the Council held which related to the EOTAS request.
25. APP considered Mr X’s tuition request again at the beginning of June 2024. The notes from this decision say the Council would not provide Mr X’s chosen tuition as the company was not a registered provider with the Council. The Council believed it had offered a good tuition provider which had confirmed it would provide online sessions to meet B’s needs. The Council considered this offer suitable for B’s needs and the offer would remain in place. The Council noted if B’s parents refused to engage with the offer, then a referral would be made to the education welfare service.
26. Mr X emailed the keyworker’s manager as he had not received a response to his emails. The manager responded to explain the APP decision.
27. At the beginning of July, the manager emailed Mr X with details of how to apply for a personal budget. The manager also said they had attached B’s most recent EHC Plan. The EHC Plan attached was dated June 2023. This was not the most recent final Plan as the Council issued an amended final Plan in January 2024. The Council had agreed to amend this Plan following the annual review in February 2024.
28. Mr X emailed the manager again at the beginning of September to express his frustration at the process. Mr X explained he did not have an up to date EHC Plan to send to providers which would allow them to decide if they could meet B’s needs. He also explained B had not been allocated a new keyworker and there had been no communication from the previous keyworker since May. Mr X asked the manager for help as he did not understand the processes involved. The manager responded and a meeting was arranged to discuss B’s EHC Plan.
29. The Council issued an amended draft Plan in September. A final amended Plan was issued in October.

Complaint handling

30. Mr X submitted a complaint to the Council in May 2024. The Council did not issue a response to this complaint until August 2024.
31. Mr X submitted a further complaint to the Council in August 2024. The Council treated this as a new stage one complaint and issued response by the deadline in September.
32. Mr X asked the Council to escalate his first complaint to stage two in August 2024.
33. The Council did not issue a stage two complaint response until January 2025.

My findings

34. The Council failed to follow the statutory process for completing the annual review which took place in February 2024. There was a delay of approximately 5 months in the Council issuing the amended final Plan. This is fault which delayed Mr X’s appeal rights, impacted B’s access to suitable education, and caused distress, frustration and uncertainty for Mr X and B.
35. Based on the evidence available it appears the Decision Making Group and Alternative Provision Panel were making decisions based on the outdated EHC Plan from June 2023 which did not reflect B’s difficulty in attending school. This is fault which caused distress, frustration and uncertainty for B and Mr X.
36. There is no fault in the Council making Mr X aware it may consider a referral to its education welfare service. The Council has a right to act when it considers a child or young person is not receiving a suitable education. From the evidence available it does not appear that a referral was made and instead the Council remained in communication with Mr X to determine suitable tuition for B.
37. There was a breakdown in communication between the keyworker and Mr X in April 2024. The keyworker did not provide Mr X with updates of panel decisions and failed to respond to his emails. The Council told us this was due to the keyworker being on long term sick leave. This is fault which caused Mr X frustration and uncertainty.
38. The manager emailed Mr X in July 2024 with an outdated EHC Plan. This is fault which caused Mr X frustration and uncertainty.
39. There were delays in the Council’s handling of Mr X’s complaints. This caused Mr X distress, frustration and uncertainty.

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Action

40. Within one month of the final decision the Council will:
• Apologise to B and Mr X for the faults identified. 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 its apology.
• Make a symbolic payment of £900 to Mr X in recognition of the injustice caused by the delay in completing the annual review which was held in February 2024.
• Make a further symbolic payment of £500 in recognition of the injustice caused by the remaining faults identified.
41. Within three months of the final decision the Council will develop an action plan which sets out how it plans to address the ongoing delays with completing annual reviews and ensure statutory timeframes are met.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice. The Council has agreed to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman