The Ombudsman's final decision
Summary: Mrs X complained the Council has delayed issuing her daughter, F’s Education, Health and Care (EHC) Plan following an annual review in May 2023. She also complained F has not received education in line with her Plan since she stopped attending school in March 2023. The Council was at fault. It has to date not issued F’s amended final EHC Plan which is delay of 43 weeks. It also failed to ensure F received a suitable education between May 2023 and May 2024. The Council agreed to issue F’s Plan without further delay and make payments to recognise the missed education. It will also carry out service improvements.
The complaint
Mrs X complained the Council delayed issuing her daughter, F’s amended Education, Health and Care (EHC) Plan following an annual review in May 2023. She also complained the Council has not ensured F received a suitable education in line with her Plan after she stopped attending school for health reasons in March 2023.
Mrs X says the matter is impacting on F’s education who is due to transition to post-16 education in September 2024. She says the EHC Plan is out of date and is delaying her right of appeal to the SEND tribunal.
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) 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).
What I have and have not investigated 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) Mrs X complained the Council had not amended F’s EHC Plan since 2021. I have investigated the complaint from the annual review held in May 2023 onwards. I have not investigated back to 2021/2022 and the lack of annual reviews and/or amendments to the EHC Plan during this period as it is late. It was reasonable for Mrs X to have complained much earlier about that period and there is no good reason to investigate it now.
How I considered this complaint
I spoke to Mrs X about her complaint and considered information she provided.
I considered the Council’s response to my enquiry letter.
Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.
What I found
EHC Plans 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.
The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135) We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; check the provision at least annually during the EHC review process; and quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
Annual reviews 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.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).
Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting).
For children transferring from secondary school to a post-16 placement the EHC Plan must be reviewed and amended by 31 March in the year of transfer.
SEND tribunal The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
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 provision.
We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Out of school, out of sight? published July 2022 We made six recommendations. Councils should: consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions; consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending'.
keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled What happened Mrs X has a daughter, F who is of secondary school age. F has special educational needs and an EHC Plan which was last issued in 2021. Section F outlines the specialist provision she is entitled to which includes: Advice from specialist teachers Social communication and interaction work Support accessing an auditory and social environment A personalised timetable for emotional needs Structured individual sessions with a focus of emotional awareness Section I in the EHC Plan named a mainstream secondary school, School A.
F stopped attending school A around March 2023 due to anxiety. Between March and May 2023 Mrs X said School A sent some work home, carried out a couple of visits and tried F on a reduced timetable. However, F found it too difficult.
In May 2023 School A held an annual review which a case manager from the Council attended. Records of the review show F’s difficulties in attending school was discussed. The minutes show the plan was to amend F’s EHC Plan to update her needs, provision and so it could reflect a recent diagnosis of Autism.
At the end of May 2023 Mrs X contacted various professionals including the Council raising concerns that F was not receiving any education. In June 2023 the Council contacted F’s school and advised it to provide F with some alternative provision. This included a referral for maths and English tuition, the school to offer online learning, online MS Teams sessions and some provision for geography and history.
Mrs X said F received no provision for the remainder of the academic year. There is evidence School A offered some online tuition in the short term but Mrs X did not feel that was suitable. At the end of June 2023 she complained to the Council. She complained the Council had not progressed F’s EHC Plan following the annual review and said she was receiving no provision while she was unable to attend school. Mrs X made a further complaint in August 2023. She did not receive a response to either.
In September 2023 F entered year 11 and started on roll at a different school, School B. However, F only attended for a short time each week for physics lessons. In early September Mrs X asked the Council for a personal budget and to consider an EOTAS (Education other than at school) package. Mrs X said the Council never provided a response to this request.
On 15 September 2023 the Council issued the amendment notice following the May 2023 annual review, 15 weeks later than timescales allow. The letter confirmed it would amend the EHC Plan and consult for a new school placement.
In mid-September 2023 F started receiving six hours a week of English tuition. This increased in October to 10 hours of maths and English of which was delivered at home. F also attended School B for physics lessons as part of a bespoke timetable.
Mrs X complained to us in October 2023. We asked the Council to provide a complaint response to Mrs X.
In November 2023 School B held an annual review. It outlined the provision F was currently receiving. It noted she required further support to access other subjects and was not engaging in social interaction when she attended school. The Council did not attend and said it did not receive the review paperwork until December 2023.
At the end of January 2024 the Council issued a stage 1 complaint response to Mrs X following her June 2023 complaint. It apologised for the delay in responding. It said the delays issuing F’s amended EHC Plan was because of staffing capacity issues. It said F’s absence from school between May and July 2023 was authorised and said School A had provided work packs. It provided Mrs X with information on how she could apply for a personal budget and offered her £150 for any distress caused by delays. Mrs X escalated her complaint to stage 2 and said she submitted a request for a personal budget.
In February 2024 the Council issued a letter stating it intended to amend F’s EHC Plan based on the November 2023 annual review.
Records show Mrs X funded some animal therapy from January 2024 and then some biology and chemistry tuition and career classes during February 2024.
The Council issued a draft EHC Plan during February however to date it still has not issued a final EHC Plan and Mrs X is concerned that F will not have a suitable post-16 place for September 2024.
The Council had not provided Mrs X with a stage 2 complaint response by the end of March 2024, therefore we decided to investigate the matter.
My findings
Annual review delays Following the annual review in May 2023 the Council should have issued a decision letter within four weeks. It did not do so until September 2023 which was a delay of 15 weeks which was fault.
Following its decision to amend F’s EHC Plan another annual review was held in November 2023 and the Council issued another intention to amend letter. To date however, F remains without an amended Plan. The Council should have issued F’s amended Plan by the end of July 2023 following the May 2023 annual review. At the time of writing the delay is 43 weeks. This is fault.
These faults mean F is without an up to date EHC Plan with provision to meet her needs. It is especially significant as F is due to transition to post-16 education and the Council has also missed the end of March deadline. The delays also mean Mrs X does not have a right of appeal to the SEND tribunal.
F’s education Although F stopped attending school in March 2023 I have not seen evidence the Council was fully aware of the situation until May 2023. The Council sent some guidance for the school to assist F with a referral for tuition in June 2023. So, on balance, it accepted F was not well enough to attend school. However, the Council retains overall responsibility to arrange educational provision in line with EHC Plans and that is non-delegable.
F has had some education (arranged by School B) in place since September 2023 when she moved onto School B’s roll. This included maths and English tuition and some school-based physics lessons. However, there is no evidence the Council has had any oversight of the situation. It has not fully considered whether an alternative provision package was appropriate or whether to require F’s attendance. There is no evidence of a reintegration plan or a review of the part-time arrangements. This is fault and likely a knock-on effect of letting the EHC Plan amendments drift following the May 2023 review. It means F has not received a full-time education or the specialist provision in line with her EHC Plan since May 2023. This equates to 3 full terms.
Personal budget request Mrs X asked the Council to consider a personal budget in August 2023 and again in early 2024 so she could fund F’s provision. Mrs X has not received a formal response to her requests. That is fault and has caused Mrs X uncertainty.
Agreed action
Within one month of the final decision the Council agreed to take the following action: Apologise to Mrs X and pay her £500 to recognise the distress and uncertainty caused to her and F by the delay in issuing F’s amended EHC Plan following annual reviews in May and November 2023.
Pay Mrs X £4,500 to recognise F’s loss of education and specialist provision in line with her EHC Plan between May 2023 and May 2024.
Issue F’s final amended EHC Plan and provide Mrs X with her right of appeal to the SEND tribunal.
Write to Mrs X and formally respond to her request for a personal budget.
Remind relevant SEND staff of the statutory timescales for completing annual reviews and issuing final EHC Plans.
Remind relevant SEND staff to keep regular oversight of any alternative provision arrangements it agrees with schools for children with EHC Plans who are not attending school. This is to ensure the Council meets its legal duty to provide the provision set out in section F of EHC Plans and to prevent gaps in a child’s education.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman