Summary: Mr and Mrs X complained the Council delayed completing the Education, Health and Care Plan review from September 2020. There were delays in issuing a final EHCP following the Council agreeing changes were required. The Council has agreed to apologise, make a payment to recognise the frustration caused to C and his family and take action to prevent the fault reoccurring.

The complaint

1. Mr and Mrs X complained the Council failed to issue an amended Education, Health and Care Plan (EHCP) for their son, C, following a review in 2020 which agreed it should be amended. Or at further review in 2022 as agreed in the Council’s initial complaint response.
2. They say C has not been able to return to school after he was withdrawn for his safety. They believe C has missed out on important support he requires.

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What I have and have not investigated

3. I have investigated Mr and Mrs X complaint about the Council’s delay in completing the EHCP review. During my investigation I identified fault in the Council’s handling of C absence from school and the alternative provision offered. I have considered the period between September 2020 onwards, as the original complaint raised covered this period.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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

8. I have considered:
• The information provided by Mr and Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
9. Mr and Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
11. The procedure for reviewing and amending EHCP is set out in legislation and government guidance. A review must be carried out at least every 12 months.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHCP, 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)
14. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
17. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.
18. Where a child is receiving elective home education the local authority is still under an obligation to conduct an annual review of the EHCP, and it should provide an opportunity for parents to seek additional support or discuss alternatives to home education.
19. The Department for Education’s ‘elective home education: departmental guidance for local authorities’ says the local authority must consider if the home education is suitable. That it should continue to check the suitability of the home education and if it considers this no longer suitable it should ensure the provision specified in the EHCP is made available.
20. 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.

What happened

21. C began Year One at school in September 2018. Mr and Mrs X were concerned that C was not receiving the support he required to help him and that this was affecting his mental health. As the autumn term progressed C began to only be able to manage 30 minutes at school. In November 2018 they decided to keep C at home until he felt able to return. C has not attended school since this.
22. C’s EHCP was issued in October 2019. This provided a supported reintegration plan for C. A review was scheduled for October 2020.
23. In December 2019 a teaching assistant (TA) from the school began visiting C at home. It stopped in February 2020 as C began displaying increasingly unsettled behaviour. C’s therapist advised the visits were disrupting his sense of safety and suggested the sessions cease.
24. An annual review was held over two meetings in late September 2020 and mid November 2020. The review noted that expert advice indicated C was not ready to begin reintegration for at least another term, as visits to his home by a TA had disrupted C’s feelings of safety. The meeting discussed changes to C’s current schooling at home to help prepare him for reintegration in to school including refining the curriculum studied and ‘schooling habits’.
25. The Council annotated C’s EHCP during the meeting and a copy provided to Mr X and Mrs X. They provided the Council with their comments in late November 2020.
26. In January 2021 Mr and Mrs X removed C from the school roll and began home educating him.
27. A draft EHCP was written in April 2021. Mr and Mrs X provided comments on the draft in late May 2021.
28. Mrs X chased the Council for an update on C’s EHCP in late June, early July and early August as she had not received a final EHCP. In mid July the Council stated it wanted to discuss finding another school.
29. Mr and Mrs X raised a complaint to the Council in January 2022 about the lack of communication and the delay in the EHCP being issued. The Council responded to the complaint in late February 2022 and accepted there had been a delay. It stated a member of staff would be carrying out a new review and would incorporate the 2020 changes into the new review.
30. The Council carried out a review of C’s EHCP in March 2022.
31. Mr and Mrs X requested an escalation of their complaint in mid March. The Council agreed to respond by the end of March. Mrs X chased in mid April as they had not received a response. The Council issued its response at the end of April. It accepted there had been poor communication and a delay in issuing the EHCP but did not propose a remedy.
32. In mid April 2022 the Council drafted an EHCP for C. This indicated C should be placed in a mainstream primary school if Mr and Mrs X stopped electively home educating him. It told Mr and Mrs X it would send it to them for comments the same day, but no copy was sent. This EHCP has been recorded as a final EHCP. Mrs X says they have never received a final EHCP for C since the review in autumn 2020.

Findings

33. Mr and Mrs X’s complaint covers events from 2020, starting from a delayed annual review due that year. Mrs X complained to the Ombudsman in June 2022 and normally historical issues would be caught out by the restriction in paragraph four of this statement. However, as matters are ongoing, and the issues raised relate to a continual sequence of delays in the EHCP process; I have exercised my discretion to look as far back as September 2020.
34. In investigating this complaint, I have identified the issues most likely to have been affected by fault.

Delayed ECHP reviews

35. The Council has provided sufficient evidence to show a review meeting took place in September and November 2020. This was 12 months after C’s first EHCP was issued. On this basis I am satisfied the annual review itself was not delayed.
36. The Council carried out an annual review in March 2022. The Council has an obligation to review the EHCP at least every 12 months. Given no final EHCP was issued following the review in 2020, which would start an alternative review date, the review should have taken place in autumn term of 2021. The Council not reviewing the EHCP until March 2022 is delay and this is fault.
37. Mr and Mrs X were awaiting the EHCP to determine how best to act for C’s future the delay in the review in addition to faults identified below have affected their ability to this.

Involvement of Mrs and Mrs X in EHCP reviews

38. In July 2021, alongside a discussion about the draft EHCP, the Council raised the prospect of finding a new school for C. There is no evidence that this email was followed up or of any discussion with Mr and Mrs X. This is fault and has caused Mr and Mrs X a loss of opportunity. They say their intention has always been for C to return to school.
39. When the Council carried out the review in March 2022 it had an obligation to provide Mr and Mrs X with an opportunity to discuss the plan, to seek additional support and to discuss alternatives to home education. There is no evidence the Council’s review involved discussions with Mr and Mrs X. This is fault. Mr and Mrs X say they would like C to return to school. In failing to involve them in the review in 2022 the Council has denied them the opportunity of raising and discussing this concern. They now have the uncertainty of whether C could have returned to school.

Delays in issuing the EHCP

40. A draft EHCP with the proposed amendments was issued to Mr and Mrs X in November 2020. The Council issued a further draft EHCP to them again in April 21. Both times it asked for comments which were provided. However, the final version of these EHCP drafts was not issued. The Council had agreed to make changes and therefore should have issued a final EHCP within eight weeks and its failure to do so is fault.
41. The Council wrote an EHCP in April 2022. The copy provided to the Ombudsman during this investigation is entitled as a final EHCP. I am not satisfied the Council issued a final EHCP in April 2022 following its review. An email from the Council dated the same day says it will be sending the EHCP to Mr and Mrs X shortly for comment. There is no further email evidencing a finalised copy being sent to any parties. It is fault the Council has not finalised the EHCP.
42. Whilst I appreciate there was some uncertainty about when C would be in a position to begin reintegration into school this does not mean the Council’s actions do not amount to fault.
43. The Council should have issued a plan by January 2021. We do not know if Mr and Mrs X would have withdrawn C from the school roll on receipt of this. However, they have lost the opportunity to make a fully informed decision on this point. The decision to withdraw C was made so close to the deadline for the review. I cannot say on balance that they would not have withdrawn him or that he has missed out on the provision provided to him in EHCP. At the point Mr and Mrs X withdrew C the Council stopped having an obligation to provide the content of the EHCP as the provision they were providing was deemed suitable. There is some uncertainty as to what their actions would have been which needs to be recognised.
44. Further, the delay in issuing a EHCP on each occasion the Council has reviewed it has meant Mr and Mrs X have been denied the opportunity to appeal the EHCP if they are unhappy with the content. In total they have been unable to raise an appeal for just over two years now.

Alternative provision

45. Prior to C being removed from the school roll the Council had an obligation to consider alternative provision. C had been out of school but remained on the school roll between November 2018 and January 2021. The Council has accepted this was due to his medical needs as he was unable to cope with school. It should have been considering whether alternative provision was necessary for C whilst he was unable to attend school. There is no evidence the Council considered this.
46. The discussions in the annual review meetings in September and November show that C was medically able to access education outside of the school setting. It recorded that Mr and Mrs X were arranging and providing provision for C themselves. There is no evidence to show the Council discussed alternative provision with Mr and Mrs X for C or the support it may be able to provide them. My investigation is limited to events that occurred from September 2020 onwards. but it is fault that the Council did not consider it during this time.
47. C was receiving provision provided by his parents. The Council should have considered whether the work he was being provided by his parents was suitable, whether the school was providing work or whether they could offer some form of alternative provision that would meet C’s needs. As a result of the Council’s failure C has lost out on four months of formal education.

Poor communication

48. The Council has accepted there was poor communication with Mr and Mrs X. It has accepted they were not told about changes of staff. Mrs X also chased the Council on several occasions for an update on when a final EHCP would be issued in 2021 and 2022 without response. This is fault.
49. Mr and Mrs X have been left confused and frustrated by the lack of communication and feel that they have been ignored and forgotten.

Elective Home Education

50. Mr and Mrs X removed C from the school roll in January 2021 and say they notified the Council of this. From this point on the Council also had an obligation to check whether the provision Mr and Mrs X were providing C was suitable. Mrs X says the Council did not check the provision until September 2021. I have not seen any evidence to show me the Council looked into this sooner. The delay in checking whether the provision was suitable is fault.
51. On this occasion the Council deemed the education provided by Mr and Mrs X to be suitable as such there has been no injustice as a result of the delay in checking the provision.

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Agreed action

52. The Council will within four weeks:
• Apologise to Mr and Mrs X for the injustice caused by the faults identified above.
• Pay Mr and Mrs X £800 for the uncertainty about C’s lost provision, their loss of opportunity and the frustration over the delay.
• Pay Mr and Mrs X, for the benefit of C, £400 to recognise the lost provision and support between September 2020 and January 2021.
• Issue a final EHCP for C.
53. The Council will within three months:
• Review its systems to check that final EHCPs have been issued following annual reviews.
• Remind staff in the education department of the alternative provision policy and that it applies to all children who are out of school for any authorised reason and attendance is not being enforced.

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Final decision

54. Subject to further comments by Mr and Mrs X and the Council, I intend to complete my investigation. I have found fault leading to an injustice. I have recommended action to remedy that injustice and to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman