The Ombudsman's final decision
Summary: There was fault the Council did not review an Education, Health, and Care Plan in 2023 for Mrs X’s son. That fault caused Mrs X an injustice through avoidable inconvenience. There was also fault the Council did not arrange additional education provision when it agreed it would do so, while Mrs X’s son was not at school. That fault has also caused Mrs X an injustice because she now has uncertainty about the impact this has had on her son’s development. The Council have agreed to remedy Mrs X’s injustice in line with my recommendations.
The complaint
Mrs X said the Council delayed carrying out a review of her son’s Education, Health, and Care (EHC) Plan after an annual review was due in February 2023. Mrs X said this meant the special education provision (SEP) he would have been due has been delayed starting, and he has had limited education across a significant schooling year.
I will refer to Mrs X’s son as G.
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 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) When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I spoke to Mrs X and considered the information she provided.
I considered the Council’s comments and the documents it provided.
I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
What should have happened EHC Plan 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.
Reviewing EHC Plans 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 take place. The process is only complete when the council issues a decision about the review.
Alternative provision- general section 19 duty 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.
The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) What happened The Council provided information, which highlighted its contact with G in 2021 as part of their EHC needs assessment. The information suggests G had not been going to school consistently since September 2019 and Mrs X was trying to get additional support from mental health services.
In early February 2022, the Council sent Mrs X a final EHC Plan for G. This is recorded as saying G was not engaging in learning and was receiving tutoring at home.
In early February 2023, Mrs X contacted the Council saying G’s school had refused to carry out an EHC review because he was not attending their school. Mrs X also told the Council she felt the school was not the right setting and G needed a ‘better education’.
Throughout February to May, the Council were repeatedly in contact with G’s school and then met with them, asking them to carry out an annual review. From the information I have seen, G’s school had declined because while they accepted G was on their roll, he was not attending their school.
In early April 2023, Mrs X made a complaint to the Council about the review. She told the Council she was worried this would impact on G’s education provision as they were due to start Year 11 in September. Mrs X told the Council at that point G was being provided with three hours of education provision per week.
In early June, the Council spoke to Mrs X to give her an update. They apologised they had been unable to get G’s school to carry out the review, but said they hoped the matter would be resolved later that month.
The case notes around the same time show the Council then considered the provision available for G, which it recorded as follows: One hour tuition per week (english and mathematics every alternate week).
Two hours outreach work per week.
The case notes here, show Mrs X had asked for an increase in tuition to two hours per week and extra outreach work. The Council made a note, saying G would be unlikely to engage with any additional provision beyond that. The Council agreed it would look to increase tutoring straight away and then consider other provision from September onwards, in time for Year 11 starting.
The Council did not then make any arrangements for this additional provision in line with Mrs X’s request. In late June, Mrs X got back in touch with the Council to query her complaint.
In August, the Council formally replied to Mrs X’s complaint and gave her an explanation for the delays. It upheld her complaint and apologised.
In late September, Mrs X then raised the issue again and at the same time she complained the provision she had requested earlier (at paragraph 24) had still not been put in place.
In mid-November, the evidence shows the Council were still trying to resolve the delayed annual review with G’s school. The case notes show it was also considering what if any alternative provision it could provide to G.
In January 2024, the Council increased the tuition hours in line with Mrs X’s previous request and in late February, G’s school held an annual review, to coincide with their transition to a post-16 education setting later this year.
My findings
EHC review We expect councils to follow the statutory timescales set out in the law and the statutory guidance. We are likely to find fault where there are significant breaches of timescales.
The evidence shows despite its best endeavours, the Council were unable to ensure G’s school carried out an EHC review when it was due in February 2023. That is fault, and had it been able to do so, then G would have had a finalised EHC Plan before the start of the school term in September 2023.
That fault caused an injustice to Mrs X, because it has now left her with distress due to avoidable inconvenience through constantly chasing the Council over a long period of time.
Alternative provision In June 2023, Mrs X told the Council she thought G could take on more tuition and the Council agreed to this. The evidence shows it was planning to do this immediately, while the EHC review was ongoing, and it intended a further increase in September. The case notes show the Council considered that G was unlikely to engage with any additional provision beyond this offer at that point.
However, the Council did not arrange any additional provision until January 2024, nor did it review its earlier consideration at the start of the new term in September 2023, in line with what it said it would do. That is fault.
The evidence shows G started their tuition in January, however on balance of the evidence, I cannot say whether or when, G would have engaged with any offer of increased provision, had any earlier offer been made.
This fault however has caused Mrs X a further injustice. It will have caused her distress through avoidable uncertainty, as to whether G has now missed out on any education opportunities, and how that may have impacted on their development at a critical year in their schooling.
Agreed action
To remedy Mrs X’s injustice as outlined at paragraphs 32 and 36, the Council have agreed it will: Pay Mrs X £1000 as a symbolic remedy for her distress.
Issue guidance to its staff on its process for escalating disputes relating to education placements and annual reviews.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation with a finding of fault as outlined at paragraph 31 and 34. Those faults caused Mrs X an injustice and the Council have agreed it will remedy that injustice in line with my recommendations.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman