Summary: Mrs B complains the Council did not respond to her request for her child, Y, to attend a special educational needs (“SEN”) school. She says the Council did not provide her with an outcome to its review of the education health and care plan ("EHC plan”), so she could not appeal. We find the Council was at fault for not following statutory procedures in reviewing the EHC plan.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council did not provide her with an outcome to her request for Y to attend an SEN school. She says the Council reviewed Y’s EHC plan but did not send a draft or final plan or confirm whether it would amend the plan. She says it was not until she made a formal complaint that she found out the Council had refused the request for a SEN school. She says the Council still had not confirmed if it would amend the EHC plan in late 2022, a year after she asked for a review.

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What I have and have not investigated

2. We will normally only investigate a complaint that has been brought to us within 12 months. I have exercised discretion to consider events going back to late 2020. This is because the issues were ongoing and similar, and I have sufficient information on which to make findings of fault.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. 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

8. I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

9. A child with special educational needs may have an EHC plan setting out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (“the Code”) sets out the process for carrying out EHC assessments, producing EHC plans and reviewing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• 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.
• Where a council proposes to amend an EHC plan, it should start the process of amendment without delay. It must send the child’s parent or the young person a copy of the existing plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes.
• 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.
11. 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. If the council decides not to amend the plan they must notify the child’s parent of their right to appeal that decision and the time limit for doing so.
12. 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. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend.

Background

13. Y is diagnosed with autistic spectrum disorder (“ASD”) and has an EHC plan. In 2020 Y was attending a mainstream school (“School 1”). School 1 has a Specialist Resource Provision (“SRP”)
14. In mid-2020 Y’s school held a review meeting for his EHC plan. The Council says it did not receive the review paperwork until October 2020. The review form recommended maintaining the current plan. Therefore, the Council did not make changes.
15. Mrs B says in October 2020 she officially asked the Council for Y to attend an SEN school. She says she received no response to her application. The Council says it did not receive a request for Y to attend an SEN school in October 2020 and there was no request during the review. It says all parties agreed Y was doing well at the current school with support from the SRP, so it did not make any changes to the EHC plan. However, the Council says officers confused matters by saying they were considering a place at an SRP.
16. The Council said that in Y’s case it included SRP in the title of School 1 in Section I, when it should not have done so. It says an SRP should not be named in Section I as it is not a school, in its own right, but support provided within the existing school.
17. In November 2020 Mrs B informed the Council she wanted to remove Y from School 1 and provide home schooling. In December 2020 the Council started an early review. It informed Mrs B that it could not agree home schooling until its elective home education (“EHE”) team had completed an assessment, as it did not know if this was a suitable provision.
18. The Council says it should not have indicated that it did not agree to home schooling. While Y had an EHC plan, they were not in special school and the Council had no grounds to frustrate the right to home schooling.
19. An EHE visit took place in late January 2021. The annual review meeting happened in early February 2021. Mrs B says at this point the Council told her it did not agree to a special school. The Council agreed to name home schooling, with Y’s current school also named so that if Mrs B decided not to continue home schooling Y would return to that school. The final amended EHC plan was made in March 2021.
20. In October 2021 Mrs B informed the Council she wanted Y to return to school and asked about the possibility of a special school. The Council informed Mrs B that she would need to ask for an early review of the EHC plan. The Council says it should have made it clear at this stage that if Mrs B wished to end home schooling Y could return to School 1. But if she wished Y to attend a special school an annual review would be necessary.
21. The Council held an early review meeting in November 2021. The Council says that during this meeting staff did not properly explain the process for amending the EHC plan. Mrs B was under the impression she could apply for a change of placement to a special school, when in fact evidence would need to be provided that a special school was necessary, and a decision made on whether to amend the EHC plan.
22. In February 2022 the Council sent a consultation to School 1. The Council says this was not necessary as School 1 was still named in the EHC plan so had a duty to readmit Y.
23. In June 2022 Mrs B chased for an update on the decision about a special school. However, the Council had not yet received a consultation response from School 1, so did not provide an outcome. Again, the Council says the consultation was not necessary or appropriate and this caused further delays.
24. In December 2022 the Council carried out an annual review of Y’s EHC plan. It decided to amend the EHC plan and sent an amended plan to Mrs B in late December 2022. The Council says this includes provision at School 1, with support from the SRP.

Findings

25. Mrs B says she asked the Council to consider a special school on two occasions, first in late 2020, then in October 2021.
26. The Council accepts there was a delay in completing the annual review between July and October 2020. This was due to a delay in School 1 sending documentation to the Council. However, the Council is the responsible body for completing the review. The school may hold the review meeting in practice, but it is on the Council to keep oversight and ensure all actions happen within the statutory timescales. Therefore, I find fault in the delay completing the review. I also find fault in the Council not informing Mrs B of its decision to maintain the EHC plan.
27. The fault meant Mrs B did not receive an outcome to the annual review and was not made aware of her appeal rights against the decision. The injustice caused in is limited by the fact the Council completed a further review shortly afterwards and issued an amended plan in March 2021, which did not name a special school. Mrs B could have appealed this decision but did not. However, again the Council did not inform Mrs B whether it would maintain or amend the plan within the statutory timescales.
28. Following Mrs B’s request in October 2021, the Council started an annual review. This was the correct course of action. However, the Council did not properly explain to Mrs B that Y could return to School 1. The Council also did not make a decision, or communicate this to Mrs B, about whether it would maintain or amend the existing EHC plan, for more than a year. This is a long period of time, during which Mrs B did not receive a decision and could not appeal. Y was also home schooled for a further year rather than return to school.
29. The available evidence indicates Y received education at home that met his needs. Therefore, Y did not go without education provision. The ongoing annual review and amended draft plan suggest Y will return to School 1 with support from the SRP, rather than attend a special school. It is too early to know whether Mrs B will appeal this. However, the decision should have been made more than a year ago, to give certainty about where Y would be educated and give Mrs B the chance to appeal if she wished to do so.
30. Over more than two years, there were several similar examples of fault, where the Council delayed or did not make clear to Mrs B what the correct procedures were, what she could request and how, and how she could challenge decisions. This caused significant distress and uncertainty to Mrs B, and time and trouble chasing the Council and brining complaints.
31. I recommend the Council pay Mrs B £400 to recognise the distress and time and trouble caused. I also recommend it complete the annual review and issue a final amended plan without further delay.
32. As part of this investigation the Council has reviewed this case in full and identified where things have gone wrong. However, the fact that similar examples of fault were repeated several times over a two-year period, suggests there may be wider systemic issues in the Council’s management of annual reviews. I therefore recommend the Council provide updated training or guidance to staff on the correct procedures and legal requirements for conducting annual reviews of EHC plans. I also recommend consider any lessons that can be learned from this case and share that learning with staff.

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Agreed action

33. The Council has agreed to, within one month of this decision:
• Apologise to Mrs B for the delays and poor communication in completing annual reviews of Y’s EHC plan over two years
• Pay Mrs B £400 to recognise the distress caused and time and trouble spent chasing the Council and bringing complaints
• Complete the current annual review without further delay, issue a final amended plan and notify Mrs B of her appeal rights
34. The Council has agreed to, within three months of this decision:
• Provide updated training or guidance to relevant officers on the correct procedures and legal requirements for conducting annual reviews of EHC plans
• Consider any lessons that can be learned from this case and share the learning with relevant officers
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. The Council is at fault for not following statutory procedures in reviewing Y’s EHC plan.

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Investigator's decision on behalf of the Ombudsman