Summary: the Council took too long to amend Mrs M’s son B’s Education, Health and Care (EHC) Plan following the annual review in October 2022. The Council’s apology is a suitable remedy. There was disruption to B’s tuition caused by the availability of the tutor. The Council, however, is ultimately responsible. The Council has agreed to make a symbolic payment to recognise the impact.

The complaint

1. Mrs M complains about delays amending her son B’s Education, Health and Care (EHC) Plan following the annual review meeting in October 2022.
2. Mrs M complains B has not received the provision in his EHC Plan, specifically home tuition which forms part of his education other than at school (EOTAS).
3. Mrs M complains the Council has not provided any software or subscriptions for B’s laptop to support his education.

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The Ombudsman’s role and powers

4. 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)
5. 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)

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How I considered this complaint

6. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

7. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. The Council issued B’s first EHC Plan in August 2019. The Council issued an amended Plan in August 2020 following Mrs M’s appeal to the SEND Tribunal. The Plan set out arrangements for B to receive education other than at school.
8. B has autism. His primary need, however, relates to severe anxiety.
9. Mrs M complained to the Council in April 2021 and then to the Ombudsman in May 2022 that B was not receiving the provision in his Plan. We upheld Mrs M’s complaint. The Council agreed to arrange the provision.
10. Mrs M complained to the Council again in June 2023 that B was still not receiving the provision in his Plan. She complained the Council had taken more than 26 weeks to complete the annual review of B’s EHC Plan; a tutor had only visited for 8 hours in the whole of the school year; and the Council had not provided any software or subscriptions for B’s laptop to support his education.
11. The Council acknowledged it had not issued B’s amended EHC Plan on time following the annual review and apologised for the delay. The Council said it had made a referral to a tutor agency as quickly as it could and did not uphold Mrs M’s complaint about the tuition.
12. Unhappy with the Council’s response, Mrs M complained to us in August 2023.

Complaint 1: delay amending B’s EHC Plan following the annual review

Reviewing Education, Health and Care Plans

13. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
14. The process begins with a review meeting.
15. Following the meeting, the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
16. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make. A recent court judgement confirmed this must happen within 4 weeks of the review meeting. The Council must issue the final Plan as quickly as possible and within a further eight weeks.

What happened

17. The Council held a review meeting on 18 October 2022. Following the meeting, the Council decided to amend B’s Plan.
18. The Council wrote to Mrs M on 25 November 2022 to say it intended to amend B’s Plan and sent a draft of the proposed changes. This was just over one week outside the time limit.
19. Mrs M did not receive the letter. She contacted the Council on 5 December as she had not heard from the Council following the review meeting. The Council re-sent the letter the following day.
20. Mrs M responded on 20 December 2022 with comments on the proposed changes. The Council sent a further amended draft Plan on 16 February 2023. Mrs M responded on 2 March 2023 with further comments on the proposed changes. The Council issued a final amended Plan on 21 April 2023.

Findings

21. Seven weeks had passed by the time Mrs M received the notification the Council intended to amend B’s Plan. However, only one week was the result of fault by the Council.
22. Having re-sent notification it intended to amend B’s Plan and a draft of the proposed changes on 6 December 2022, the Council should have issued the final Plan by 31 January 2023. The Council issued the final Plan on 21 April 2023, 11 weeks and 3 days late.
23. The courts have recognised that 8 weeks can be a challenging timescale to agree amendments to a Plan, but the importance of meeting the target is obvious since changes are required to a child’s provision.
24. Delay by the Council meant B’s final Plan was 12 weeks late. This is fault.
25. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
26. The injustice caused by the delay issuing the 2023 Plan is difficult to assess. B’s 2020 and 2023 EHC Plans are similar. Both the 2020 and 2023 Plans acknowledge the amount of provision B receives will depend on his ability to participate. It appears B was less able to participate in tuition when the 2023 Plan was made. The 2023 Plan has lower expectations of B’s ability to engage and the pace at which his ability to participate will increase.
27. Taking all these factors into account, I consider the Council’s apology is a suitable remedy for the delay issuing the 2023 Plan.

Complaint 2: B has not received the provision in his Plan

28. Mrs M complains about delay arranging the provision in B’s Plan, specifically the home tuition.

Education, Health and Care Plans: the law

29. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
30. The Courts have made it clear the Council’s duty to arrange provision is owed personally to the child and cannot be delegated. (R v London Borough of Harrow ex parte M [1997] ELR 62)

What happened

31. In its complaint response, the Council acknowledged there had been problems arranging the tuition and B had received only a limited amount of tuition.
32. I am considering provision from September 2022 to June 2023 when Mrs M complained to the Council.
33. B’s 2020 Plan said he should receive an hour of tuition a day, increasing at a pace to suit him to two hours a day. His 2023 Plan said he required twice-weekly sessions with a tutor, initially for 30 minutes to build a relationship and increasing as B’s ability to participate increased.
34. Following our previous investigation, which concluded in August 2022, the Council made a referral to a tutor agency to provide the home tuition in B’s EHC Plan. The agency identified a tutor and proposed an initial assessment in the week beginning 10 October 2022. The Council says Mrs M and B were not available for the initial assessment until 19 October 2022.
35. In its complaint response, the Council said it acted promptly to arrange tuition and did not uphold Mrs M’s complaint.
36. I accept the Council took action promptly following our 2022 investigation, but the Council should have arranged the provision from the date it issued B’s Plan. The Council was at fault for not having provision in place for the beginning of term in September 2022. I uphold this part of Mrs M’s complaint.
37. Following the initial assessment, the first tuition took place on 10 November 2022. The tutor agency said this was due to Mrs M’s availability. The tutor became ill in November 2022 and was unable to provide tuition. The agency proposed a new tutor on 2 March 2022. The agency said the tutor had difficulty contacting Mrs M to arrange an initial assessment. Mrs M says the delay was not her fault as she replied to the tutor as soon as she received a message. The tutor proposed an initial assessment on 17 April 2023, after the Easter holidays. The Council says Mrs M declined this date due to a family holiday, and the initial assessment finally took place on 11 May 2023.
38. There was disruption to B’s tuition between November 2022 and May 2023 due to the lack of a tutor. Although I accept the Council took steps to resolve the problem, it was ultimately responsible for arranging B’s tuition. B was without provision for approximately six months. Some of this delay – possibly one month – was a result of Mrs M’s availability and the family holiday. The remainder we describe as a failure by the Council to arrange B’s tuition. I will now consider the impact on B, which we call the injustice.
39. As noted above, the Council issued a new EHC Plan on 21 April 2023 which recognised B’s ability to participate in education was much less than it had been when the previous plan was written. The emphasis in the 2023 Plan was on building a relationship between B and his tutor and reintroducing the idea of education.
40. The Council sent me records from the new tutor’s weekly visits. The records show B was initially unwilling to meet the tutor. However, over the course of the summer the tutor established a positive relationship with B and by September 2023 was able to begin to explore introducing education to the sessions.
41. However, in September 2023, the relationship between Mrs M and the tutor broke down and Mrs M asked the tutor to leave. Mrs M said the tutor was going too quickly for B and causing him anxiety. The tutor disagreed.
42. The Council says B received 14 sessions of home tuition, 86 sessions of mentoring, and 14 sessions of therapeutic support in the 2022 – 2023 school year.
43. Had it not been for the delay starting provision in September 2022, and the interruption caused by the lack of a tutor between December 2022 and May 2023, B may have received more tuition. The records from tuition in October 2022 suggest he enjoyed the sessions. However, shortly afterwards, his ability to participate in education appears to have significantly reduced. This was noted in the review meeting on 18 October 2022 and is reflected in the new Plan issued in April 2023. Once tuition re-started in May 2023, the tutor appears to have been successful in building a relationship with B and re-engaging him in learning, although this was a slow process. It is possible this could have happened sooner if a replacement tutor had been found sooner and there had not been such a long break in B’s tuition. However, a disagreement between Mrs M and the tutor brough the progress to a halt.
44. All I can say about the breaks in B’s tuition are that they cause uncertainty that things could have been different if tuition had continued uninterrupted. This uncertainty is an injustice.

Complaint 3: software and subscriptions for B’s laptop

45. Mrs M complains the laptop provided by the Council does not have suitable software or subscriptions for him to continue his education.
46. B's EHC Plan simply says the laptop must have “suitable programmes and software”.
47. I understand the Council provided a Microsoft Office subscription so B could record his work, and said B could access resources freely available on the internet. The Council also said it would liaise with B’s mentor and tutor to identify any other software he needed.
48. Mrs M has not identified any software B needed but did not have access to.
49. I find there was no fault by the Council.

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Agreed action

50. We have published guidance to explain how we recommend 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 this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
51. I recommended the Council makes a symbolic payment of £1,000 to recognise the breaks in B’s tuition and the uncertainty that things could have been different if tuition had continued uninterrupted. I recommended the Council makes the payment within six weeks of my final decision. The Council should provide us with evidence it has complied with the above actions.
52. The Council accepted my recommendations.

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Final decision

53. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman