The Ombudsman's final decision
Summary: Mrs X complained the Council has failed to provide a suitable education for her son. Mrs X also complained about delays in the annual review process and that the Council has now issued a final plan naming a mainstream school. The Council’s failure to demonstrate it properly reviewed and recorded whether the level of alternative provision available to Y was suitable is fault. As was the delay in the EHC Plan annual review process. These fault have caused Mrs X and Y an injustice.
The complaint
The complainant, Mrs X complained the Council has failed to provide a suitable education for her son. She complained her son has received only six hours tuition a week since April 2022 and that this has not been reviewed or increased despite several requests.
Mrs X also complained about delays in the annual review process and that the Council has now issued a final plan naming a mainstream school rather than provide a package of Education Other Than At School, EOTAS as the family had requested.
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.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) 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.
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 I have not investigated events after December 2023 when the Council issued an Amended EHC Plan. Mrs X has exercised her right of appeal to the SEND Tribunal.
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Mrs X; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with Mrs X; 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
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 council can do this.
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.
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) 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.
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.
If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
What happened here Mrs X’s son Y has a diagnosis of autism and experiences heightened anxiety about attending school. He has been unable to attend school since December 2021. Mrs X says Y received no educational provision between January and April 2022.
Y’s school arranged one to one tuition for six hours a week at Y’s home from early April 2022. Mrs X says the intention was this would increase to 15 hours per week once tutor availability allowed.
In March 2022 the Council issued an EHC Plan for Y. This Plan named Y’s current mainstream primary school and then School 1, a specialist school from September 2022. Mrs X appealed and the Council issued a further EHC Plan in May 2022, naming School 2, a mainstream secondary school from September 2022.
School 2 advised the Council it could not meet Y’s needs and expressed concerns over the impact on Y if he was directed to attend the school. In July 2022 School 2 noted the Council had suggested Y receive 15 hours of one-to-one tuition with his current tutor, while on roll at School 2. The school asked the Council to reconsider the placement.
In September 2022 School 2 asked the Council for further guidance. It said it had commissioned the tuition but did not consider this was enough. Y was unable to engage with the bespoke package of transition support and School 2 was concerned about Y and his education. The Council confirmed it would look into the matter, but I have not received records of any further response.
School 2 held an annual review meeting in early January 2023 but did not prepare a report until July 2023. The review report recommends the Council amend Y’s EHC Plan. It notes Mrs X requested a change of placement and that Y’s tutors had make recommendations regarding his provision.
In early August 2023 the Council wrote to Mrs X confirming it did not intend to make any changes and would maintain Y’s current EHC Plan. Y’s plan was next due to be reviewed in August 2024. However, School 2 held a further annual review in September 2023. The review report again recommended the Council amend Y’s EHC Plan. It noted there had been changes in Y’s needs due to an increase in anxiety.
Mrs X contacted School 2 following the review to ask if Y’s tutoring hours could be increased. When School 2 advised Mrs X there was no additional funding to increase Y’s hours of tuition, Mrs X contacted the Council to request an increase. She noted Y was entitled to a full-time education but was only receiving six hours a week. Mrs X told the Council’s Y’s tutor currently had capacity to increase the hours allocated to Y and she wanted to ensure they did not miss this opportunity.
The Council advised Mrs X that School 2 needed to use the funding available to it to manage Y’s education. It also confirmed funding and provision could be reviewed as part of the EHC Plan review which would be completed in a few weeks.
Mrs X chased the Council for the final EHC Plan in early November 2023. She said Y need an EOTAS package for home learning and again asked for an increase to the current six hours of tuition. The Council advised Mrs X it would only agree an EOTAS package if it felt it was not possible to name a suitable school.
Mrs X made a formal complaint in late November 2023. She complained that despite repeatedly requesting an increase in tuition hours, Y still only received six hours a week. Mrs X also complained about delays in the annual review process.
In early December 2023 the Council asked Mrs X to confirm whether she had a preferred school, failing which the EHC Plan would continue to name School 2. Mrs X asked the Council to confirm whether it had already consulted any school as part of the review process. She noted School 2 had told the Council it could not put in place the provision in the plan. Mrs X confirmed she was requesting an EOTAs package for home learning with expert tutors.
The Council told Mrs X it would not agree an EOTAS package and needed to work towards Y attending school. It also confirmed it had consulted four placements and that it would shortly issue Y’s Plan naming School 2.
The Council issued a final EHC Plan on 11 December 2023. Mrs X has appealed to the SEND Tribunal.
On 13 December 2023 School 2 asked the Council for additional funding to increase the hours of tuition. It noted Y had eight hours tuition each week and this had been slow to build despite requests from the school and Mrs X since January 2023 to increase the provision. School 2 asked for an additional two hours of tuition each week. The Council agreed to additional funding to increase provision to 10 hours per week.
The Council responded to Mrs X’s complaint on 19 December 2023. It noted Y’s EHC Plan was amended in May 2022 to reflect Mrs Y’s preference for School 2 from September 2022. The Council said it allocated additional funding as it recognised it would be difficult for School 2 to deliver the provision specified in Y’s Plan.
Although School 2 held an annual review in January 2023, it did not submit the report to the Council until July 2023. The Council told Mrs X it was working with its schools to ensure they understand their responsibility to ensure statutory timeframes are met. Although the review report records Mrs X’s request for a change of school, the Council noted it did not report a change in Y’s special educational needs or the provision he required. On this basis the Council maintained Y’s plan.
Following a further review in September 2023 the Council agreed to amend Y’s Plan. It told Mrs X it had consulted with School 2 and 4 special schools and would contact her again when it received their responses.
The Council noted Mrs X had not expressed a school preference. It said EOTAS was not permitted as a parental preference but could only be considered by the Council if no education setting could provide the provision in Y’s EHC Plan.
It also noted a part time timetable had been in place for Y since September 2021. The Council says it could not find any evidence Mrs X contacted the SEND Statutory team to request Y’s tutoring hours were increased. The Council confirmed School 2 had recently requested additional funding and the Council was considering a package of funding to support the school in providing Y with a full-time education. School 2 had put together a proposal for 10 hours of provision for an alternative provision/ reintegration package over 22 weeks.
Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate her complaint. Mrs X says Y was initially unable to engage with any learning with his tutor but is now able to complete tasks in maths, English, geography, and science. She says the tuition increased to eight hours per week in March 2024 but believes this should have happened sooner. Mrs X says the time Y spends with the tutor becomes part of his routine and he is more accepting of it as it becomes a normal part of his day. She asserts that had the hours of tuition increased gradually over time Y would have been engaging with a much higher level of tuition by now.
Mrs X would like the Council to agree to an EOTAS Package and to increase the hours of tuition with immediate effect.
In response to my enquiries the Council says Y’s part time tuition arrangements were under regular review and were considered appropriate to support his transition/ reintegration into school. The Council says Y’s school, paediatrician and parents agreed to the arrangement. It has provided copies of Annex R: Notification of a Temporary Part- Time School Timetable dated 19 May 2023, 16 October 2023, and 3 January 2024. Each notes that Y receives alternative provision of six hours one to one tuition each week. The Annex R dated 19 May 2023 also records that increasing the hours will be discussed.
The Council says the level of tuition was also reviewed at the EHC Plan review in September 2023. And that School 2 increased Y’s provision to eight hours a week in January 2024 as part of a plan for reintegrating Y back into school.
In relation to Y’s EHC Plan the Council acknowledges that although School 2 held an annual review on 4 January 2023, it did not send the Council a report until 7 July 2023. The Council then issued a response on 2 August 2023. The Council has reiterated it is working with its schools to ensure they understand their responsibility to guarantee statutory timeframes are met.
The Council says there was no delay in completing the September 2023 review.
Analysis It is clear from the documentation that Y was unable to attend school or engage in a full-time education. A part time timetable was therefore appropriate. It is unclear how the Council initially determined that six hours alternative provision of one-to one tuition was appropriate. But it is clear the intention was that the level would be reviewed and increased.
Correspondence from School 2 to the Council in July 2022 refers to a suggestion by the Council that Y receive 15 hours tuition once on role at the school. The Annex R notification in May 2023 also suggests there will be a discussion about increasing the hours of tuition. However Y’s provision remained at six hours a week until the Spring of 2024 Although the documentation shows the suitability of a part time rather than full time timetable was reviewed, I have not received any evidence of how or when the number of hours of tuition was reviewed until December 2023.
There is also a lack of clarity regarding what provision was agreed and when this was implemented. On 13 December 2023 School 2 requested additional funding and referred to requests to increase the provision by both Mrs X and School 2 since January 2023. This letter suggests Y was receiving eight hours a week and requests a two-hour increase to ten hours tuition each week. The Council’s response to Mrs X’s complaint the following week notes Y is receiving six hours tuition per week and that it is considering School 2’s proposal to increase to 10 hours provision.
In response to my enquires the Council says Y’s provision increased to eight hours a week from January 2024, but correspondence between the Council and Mrs X at the end of January 2024 show this additional provision was not in place.
I consider the Council’s failure to properly review and record whether the level of alternative provision available to Y was suitable and when it could be increased is fault.
In considering whether his fault has caused an injustice to Y I am mindful that Mrs X has confirmed Y initially struggled to engage with the tuition and it was some time before he could work with the tutor. Based on the information available I consider it likely that the level of provision would have remained at six hours a week for at least a year.
I have not received any evidence of Mrs X’s or School 2’s requests for additional hours in the early part of 2023. But given the reference to a discussion about increasing the hours of tuition in the Annex R document in May 2023 I consider it likely either Mrs X or School 2 had raised the possibility by then.
I consider the Council’s failure to demonstrate it properly reviewed and recorded whether the level of alternative provision available to Y was suitable means that Y has potentially lost out on a fuller education in the second half of the summer term and the Autumn term of 2023. I consider it more likely than not that had the Council reviewed the level of provision sooner it would have increased.
I note that although additional funding was agreed in December 2023, Y’s provision did not increase until March 2024. However I am only considering events up to December 2023 when the Council issued a final EHC Plan and Mrs X exercised her right of appeal to the SEND Tribunal.
The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 to £2400 per term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as: The severity of the child’s SEN as set out in the EHC plan; Any educational provision that was made during the period; Whether additional provision now can remedy some or all of that loss; and Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.
Given Y’s age, the stage of his education and the education and support he missed, I consider a payment of £1350 for the term and a half he missed would be appropriate.
The Council’s failure to complete the EHC Plan annual review in accordance with the statutory timeframes is fault. The Council should have notified Mrs X of its decision to maintain Y’s EHC Plan within four weeks of the review meeting on 4 January 2023. It did not notify Mrs X until 2 August 2023, seven months later.
I recognise that School 2 did not provide its report of the meeting within the required timeframe but do not consider his absolves the Council of any fault. I have not received any evidence the Council chased School 2 for the report or took any action to enable it to comply with the statutory timeframe. A delay of six months in producing the review report is both concerning and clearly unacceptable. The school held the annual review meeting on behalf of the Council, and I would have expected the Council to be proactive in ensuring it received the review report much sooner.
The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.
The delay in the annual review process caused Mrs X frustration and uncertainty.
Mrs X also complains the Council has named School 2 in Y’s EHC Plan rather than provide a package of EOTAS as she had requested. I am unable to consider this issue.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
Agreed action
The Council has agreed to: apologise to Mrs X and Y for the failure to properly review and record whether the level of alternative provision available to Y was suitable. And for the delay in the EHC plan review process. 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.
make a payment of £1350 to Mrs X to acknowledge the impact of the missed additional education Y could have received between May 2023 and December 2023.
make a symbolic payment of £200 to Mrs X to acknowledge the distress, frustration and uncertainty she experienced as a result of the Council’s failings.
The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.
Final decision
The Council’s failure to demonstrate it properly reviewed and recorded whether the level of alternative provision available to Y was suitable is fault. As was the delay in the EHC Plan annual review process. These fault have caused Mrs X and Y an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman