Summary: Mrs X complained the Council delayed issuing her child, F’s amended Education, Health and Care (EHC) plan following an annual review in December 2021 and failed to ensure F had a suitable education in the interim. The Council was it fault. It took a year to issue F with an amended EHC plan after F was unable to attend the placement named on the plan. It further failed to ensure F received education and provision in line with the plan during that period. The Council agreed to make payments to Mrs X to recognise F’s loss of education and the distress, uncertainty and time and trouble caused. It also agreed to make service improvements.

The complaint

1. Mrs X complained about the Council’s handling of her child, F’s, Education, Health and Care (EHC) plan since the annual review in 2021. She complained:
• The Council took 12 months to issue an amended final plan following the annual review after the named college said it could no longer meet F's needs.
• Delayed consulting with alternative placements in a timely manner.
• Failed to ensure F received provision in line with her EHC plan between November 2021 and December 2022.
2. Mrs X says F has lost a year of education which will impact on their ability to attend university education. She said the matter has caused both her and F distress, uncertainty and time and trouble.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I spoke to Mrs X and considered information she provided.
7. I considered the Council’s response to my enquiry letter.
8. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

9. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
10. 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)
11. 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.

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. 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)
14. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. 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)
16. 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.

What happened

17. Mrs X has a child, F, who in early 2021 was of secondary school age. F was due to transition to post-16 education from September 2021 onwards. F has a diagnosis of autism and was educated at home from 2020 onwards due to difficulties attending school.
18. F has an EHC plan which following an annual review in 2021 named a mainstream college, (College A) as F’s placement from September 2021 onwards. This plan set out the special education provision F was entitled to at College A which included various techniques and plans to help F when in college. This included development of their social skills, a programme devised by a Speech and Language Therapist (SALT) and use of assisted technology. Much of the provision set out was for delivery or supported by a qualified teacher or a teaching assistant.
19. F started at College A in September 2021 but started struggling with attendance. In November 2021 the College held an annual review. The records note that although F was academically able to complete the course, they were finding it impossible to attend due to anxiety issues. Therefore, College A decided it could no longer meet F’s needs and requested a change of placement on the EHC plan. The notes suggested changing the placement to a remote learning provider. College A sent the annual review report to the Council at the start of December 2021.
20. In mid-March 2022 Mrs X contacted the Council as she had heard nothing from the Council since the annual review. Mrs X said F remained without an appropriate placement and she was currently funding a specialist remote provider for F as no other provision had been put in place. The Council responded to Mrs X and told her there were delays dealing with EHC plans and annual reviews due to a backlog. The Council confirmed it would process F’s annual review in the coming week.
21. In April 2022 the Council sent Mrs X a notice of amendment which said it intended to amend F’s EHC plan. Records show the Council then began consulting with two remote providers, including the one Mrs X was currently self-funding. Both providers responded in April and August 2022 outlining costs and stating they could both meet F’s needs.
22. The Council responded to Mrs X’s in March 2022 at stage 1 of its complaints process. It apologised for the delay in responding. It said it was clear the Council had not dealt with F’s annual review in line with statutory timescales. It acknowledged F had not had access to education for a prolonged period but said it expected College A to provide interim arrangements. The Council said it would keep Mrs X updated about the change of placement.
23. Mrs X escalated her complaint to stage 2 of the complaints process. She said nobody had offered any interim education or provision for F. Mrs X said the delays meant F will have missed an entire year of education by the time it is resolved.
24. The Council provided Mrs X with a final complaint response at the end of September 2022. It reiterated the faults and apologies from the stage 1 response. It said F’s current EHC plan named College A which they could have attended at any time. It said therefore it had met its statutory duty to ensure provision was in place for F, while acknowledging College A was not suitable.
25. Records show in October 2022 the Council agreed to name a special school placement for F with provision to be delivered by an external online provider. F remained with the provision of SALT and support from teaching assistants and mentors. The Council issued F’s final amended EHC plan in November 2022. Due to funding and costs not being agreed, F did not begin her new placement until January 2023 which continues to date.
26. Mrs X remained unhappy with how the Council dealt with F’s annual review and education and complained to us.

The Council’s response to us

27. The Council said it accepted the delays processing F’s annual review were extensive and unacceptable. It said these delays led to a delay in starting consultations with F’s preferred placement providers. The Council said College A did offer F online provision while it was considering the annual review although it accepted it took no action to confirm if F was accessing this. The Council said it expected College A to make adjustments to allow F to access education. It accepted however F did not have access to all of the provision outlined in section F.

My findings

28. The Council received the annual review paperwork in December 2021 which confirmed a change of placement in F’s EHC plan was required. The Council has accepted it failed to process the annual review within statutory timescales. It did not issue Mrs X with the amendment notice until April 2022 and then did not issue F’s final amended EHC plan until November 2022 which is a year after the annual review took place. All of this is fault.
29. The delay in processing F’s annual review meant the Council delayed starting to consult with alternative placements for F during 2022. Although once it began consulting, it did so in good time, the delay contributed to the delayed issuing of the final plan.
30. The Council was aware in December 2021 that F’s named placement on her EHC plan could not meet their needs. It meant F did not have a suitable placement to attend from December 2021 onwards. The Council said College A offered some online learning although I have not seen any evidence of this or any evidence which shows how this met the prevision outlined in section F. The Council said it expected College A to ensure F had interim education. However, F had an EHC plan, so it was ultimately the Council’s responsibility and legal duty to ensure F received provision in line with their plan, not College A’s.
31. The Council has accepted it failed to carry out any due-diligence and checks to ensure F was receiving provision in line with their plan or accessing education. It accepts F did not receive provision in line with the plan due to not being able to attend College A. This is fault.

Injustice

32. The delay in processing F’s annual review, consulting with alternative providers and subsequent delay in issuing F’s final plan caused both Mrs X and F distress and uncertainty. It meant F was without a suitable named placement to attend which meant they could not receive provision in line with her EHC plan during that period. F was unlikely to have accessed some of the provision during this period which relied on being in a college environment. However, had the Council intervened earlier it is likely on balance, that F could have received some of the provision.

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Agreed action

33. Within one month of the final decision the Council agreed to take the following action.
1. apologise to Mrs X for the injustice caused to her and F as a result of it failing to process F’s annual review within statutory timescales, the delay in issuing F’s amended final EHC plan and for failing to ensure F received provision in line with their plan between December 2021 and December 2022.
2. pay Mrs X £4500 to acknowledge F’s loss of education in line with their EHC plan between December 2021 and December 2022. This is based on a termly rate of £1500 in line with our guidance on remedies and takes account of F’s individual circumstances. Mrs X should use the payment for F’s benefit as she sees fit.
3. pay Mrs X £250 to acknowledge the distress, uncertainty and time and trouble caused to her by the faults.
34. Within two months of the final decision the Council agreed to take the following action.
1. produce an action plan to demonstrate what action it intends to take to ensure it meets statutory timescales following annual reviews going forward.
2. review its procedures around due diligence to ensure it has measures in place to check whether children or young people it knows are unable to attend their named placement on the EHC plan are receiving an education and the provision in line with section F of the plan.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman