The Ombudsman's final decision
Summary: The Council was at fault for delaying Mrs X’s daughter’s (Y’s) Education Health Care Plan annual review and transfer review. The Council was also at fault for failing to meet the provision set out in Y’s Plan and failing to properly consider the offer of alternative provision when Y was out of school. This fault had a significant impact of Y’s education and wellbeing. The Council agreed to apologise and pay a financial sum to remedy the injustice caused to Mrs X and Y.
The complaint
Mrs X complained the Council: delayed her daughter’s (Y’s) 2022 EHC Plan review in advance of her transfer from primary to secondary school.
failed to ensure the school met the provision set out in Y’s EHC Plan.
did not ensure the school carried out Y’s 2021 annual review properly or on time.
did not offer alternative provision when Y was out of school in November and December 2021.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I have read Mrs X’s complaint documents and have spoken to her about it.
I have also considered the Council’s response to Mrs X and to my enquiries.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation EHC Plans A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
EHC Plan Annual Reviews The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a 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) The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
EHC Plan Transfer Review An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are: early years provider to school infant school to junior school primary school to middle school primary school to secondary school, and middle school to secondary school EHC Plan provision The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to: check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement; check the provision at least annually via the review process; and investigate complaints or concerns that provision is not in place at any time.
Alternative provision Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013) What happened EHC Plan annual review Y’s final EHC Plan was issued in July 2020. Mrs X told the Council that Y was out of school in November 2020. She said the Council said it was awaiting a report and a potential diagnosis for Y so would need to wait before taking action. Mrs X said she raised it again in February 2021 and shared the reports with he Council in March.
The Council held the annual review in June 2021. It then issued Y’s Pupil Action Plan letter the next day. During September, two educational psychologist reports were used by the Council to inform changes to the EHC Plan. Y’s revised final EHC Plan was issued in November 2021.
EHC Plan transfer review Y will transfer from primary to secondary school in September 2022.
The Council carried Y’s transfer review in March 2022. It was scheduled for a date in February. However, Mrs X asked for it to be cancelled as the Occupational Therapist (OT) could not attend on that day. Mrs X also said that the school had not carried out the procedure properly by obtaining reports from all the professionals involved and circulating them two weeks before the meeting.
At the Transfer Review meeting, the Council discussed: potential secondary schools for Y what actions were needed to help Y with the change Y’s school report and targets and milestones how wider KS3 curriculum could be fed into Y’s bespoke curriculum consultation with secondary schools the upcoming tribunal.
Mrs X said ahead of the transfer review meeting, a meeting with the professionals was held. Mrs X said the Council informed her that school consultations could begin before the transfer review meeting. Mrs X provided a list of schools in early February but the Council did not begin consultation until end of March.
EHC Plan provision Y’s EHC Plan states that she requires: access to adult support to support her sensory processing. The supporting adult will be required to support Y: for 5-10 minutes at frequent intervals each day to follow her sensory diet programme.
with the motor skills program at least 3 x each week for a period of 20 minutes per session Daily 1.1 support to scaffold activities.
The Council said when Y’s school indicated it needed further resources for Y, its views and professional opinion was shared with the Council. The school provided additional information to support meeting Y’s needs and this was discussed at the Education Panel. In November 2021, the Council increased funding so the school could allocate its resources to best support Y. This was to enable Y to have access to a broad and balanced curriculum that specifically considered her needs and interest.
Alternative provision The Council said initially Y engaged full time in class. She worked on a 1:2 basis with a higher level nurture practitioner. She was participating in the key stage 2 curriculum.
Y stopped attending school in November 2021. The Council said it did not offer alternative provision as Y had a suitable school place where she was able to access the required provision.
The Council said it worked with Mrs X, the school and other professionals involved to offer advice and support, with the aim of Y returning to school. Y returned to school in December 2021.
My findings
EHC Plan annual review The review was delayed. The Council has accepted that it failed to follow the statutory processes and meet statutory timescales. The delay of the review and the issuing of the updated EHC Plan in turn delayed Mrs X’s opportunity to appeal the Plan’s content. This was fault that caused Mrs X, Y and the family uncertainty and distress. The Council has agreed to apologise to Mrs X and to pay her £250.
EHC Plan Transfer Review This review was also delayed. The Council missed the 15 February 2022 deadline for Y’s key transfer from primary to secondary school review. This caused Mrs X, Y and the family further stress and upset. Despite the delay, the Council carried out the relevant consultations with schools albeit later than Mrs X would have liked. The Council has agreed to apologise to Mrs X and to pay her £100 to remedy the stress and upset caused.
EHC Plan provision The Council increased the funding when the school made the Council aware that it could not meet the provision required by the EHC Plan. However, when Y was not in school, she was not receiving the EHC Plan provision. The injustice to Y caused by the gap in EHC Plan provision with the lack of alternative provision is considered below.
Alternative provision The Council said it did not offer Y alternative provision as she had a suitable school place. Y was refusing to attend school due to her anxiety. There is no evidence which shows how the Council reached its decision not to offer alternative provision under section 19.
The Council was at fault for not properly considering the evidence as to why Y was not attending school. This fault meant that Y missed out on educational and EHC Plan provision for two months. Y went from receiving a full-time year 6 curriculum to a part-time bespoke curriculum and being dis-applied for the Year 6 SATs.
The impact of Y’s missed education and EHC provision is significant. The Council has agreed a remedy at the higher end of the range outlined in our Guidance on Remedies. £600 per month of missed educational provision, so £1200 in total.
Agreed action
Within 4 weeks of my decision, the Council has agreed to: Apologise to Mrs X for the distress caused by the delay of Y’s EHC Plan annual and transfer reviews.
Pay Mrs X £350 for the uncertainty and distress caused by the delay of Y’s EHC Plan annual and transfer reviews.
Apologise to Mrs X for not properly considering whether the Council should have offered Y alternative provision when Y was refusing school.
Pay Mrs X £1200 of the missed education and EHC Plan provision when Y was out of school.
Apologise and pay Mrs X £150 for the time and trouble it has taken her to pursue this complaint.
Final decision
I have completed my investigation. The Council was at fault for how it handled Mrs X’s daughter’s EHC Plan reviews and request for alternative provision when Y was out of school. The Council has agreed to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman