Summary: Mrs X complained about the Council’s actions in relation to her child’s, Y, Education, Health and Care Plan (EHC Plan) and when Y was unable to attend school. The Council was at fault for failing to respond to Mrs X’s request for a reassessment of Y’s needs and support in the EHC Plan. It was also at fault for how it managed the annual review process and for delaying action when it became aware Y was not attending school. This caused Mrs X frustration and uncertainty. The Council has already apologised to Mrs X for some of the fault. The Council has agreed to extend its apology and provide Mrs X with a symbolic payment. It will remind staff to issue decision letters and review with staff the timescales of amending and issuing final EHC Plans in line with legislation. The Council will also review with staff its statutory duty in relation to children absent from school.

The complaint

1. Mrs X complained about the Council’s actions in relation to her child’s, Y, Education, Health and Care Plan (EHC Plan). She said the Council:
• did not respond to her request in March 2022 for a reassessment of Y’s needs in their EHC Plan; and
• significantly delayed amending the EHC Plan following an annual review meeting in July 2022.
2. Mrs X also complained the Council failed to provide Y with alternative provision when they could not attend school due to mental health matters later in 2022.
3. Mrs X said it has affected Y’s learning and social development. It has caused her frustration and uncertainty. She wants the Council to acknowledge the injustice it has caused to her and Y and provide them with a financial remedy.

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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 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)
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 a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. I have investigated Mrs X’s complaint from March 2022, when Mrs X requested the Council to reassess Y’s needs in their EHC Plan until December 2022, when the Council issued a final amended EHC Plan. Mrs X had the right to appeal once the Council issued the EHC Plan in December 2022 which she later exercised.

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How I considered this complaint

10. I spoke with Mrs X and considered information she provided.
11. I considered information the Council provided.
12. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making the final decision.

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What I found

Education, Health and Care Plans

13. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Reassessment of needs

14. If a parent requests a reassessment, a council must respond within 15 days with a decision letter whether it agrees to a reassessment or not. If the council refuses a reassessment, it must inform the parent their right of appeal to the SEND Tribunal.

Arrangements for reviewing EHC Plans

15. A review is the process of identifying the needs, provision and outcomes of a child’s EHC Plan and whether they need amending. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
16. 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)
17. 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)
18. 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)
19. 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.

Alternative provision

20. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
21. Statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
23. Our focus report, “Out of school, out of sight” focuses on a council’s duties to children of compulsory school age. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.

What happened

Reassessment request

24. Mrs X’s child, Y, has special educational needs and an EHC Plan. Y attended a primary school where they received specialist provision.
25. In March 2022, Mrs X requested the Council to reassess Y’s needs and support set out in their EHC Plan. Mrs X said Y’s social, emotional and learning needs had changed and so the provision set out in the Plan was no longer suitable. She also said she was not sure if the School was still suitable to meet Y’s needs as the support it had delivered to Y so far had not helped Y’s anxiety.
26. In April 2022, the Council said it recorded Mrs X’s request for a reassessment in its system however, the Council took no further action following this. Mrs X later decided to pay for a private assessment completed by an Educational Psychologist.

Annual review and amendments to the EHC Plan

27. In July 2022, the Council completed an annual review of Y’s EHC Plan. The annual review record shows the Council considered Mrs Y’s request to amend the EHC Plan and the recent report from the Educational Psychologist. Mrs X told us during the annual review meeting, the Council verbally told her the EHC Plan would need amending and the recommendations would be considered at a panel. However, the Council did not send Mrs X a letter with a notice of its decision to amend the EHC Plan.
28. Between August and September 2022, Mrs X said she contacted the Council several times for an update on Y’s EHC Plan as she had received no communication since the annual review meeting. Mrs X later complained in mid-September 2022 due to the Council’s poor communication with her.
29. The Council responded to Mrs X shortly after her complaint. It told her the co-ordinator who had been managing Y’s case had taken unexpected leave which was the reason for the delay. It therefore allocated the case to another co-ordinator. The Council told Mrs X it would respond to her complaint later.
30. The new co-ordinator contacted Mrs X and said it would prioritise amending Y’s EHC Plan.
31. Between mid-September and mid-October 2022, Mrs X continued to contact the Council for an update on the EHC Plan. In mid-October 2022, the Council sent Mrs X a draft amended EHC Plan.
32. The Council also responded to Mrs X’s complaint and:
• apologised to Mrs X for the time and trouble she went through to complain and its poor communication with her; and
• recognised it did not send Mrs X a letter with a notice of its decision to amend the EHC Plan following the annual review meeting and that it had delayed amending the EHC Plan. The Council apologised for this.
33. Between mid-October and towards the end of November 2022, Mrs X liaised with the Council regarding amendments to the EHC Plan. The Council sent Mrs X a further draft amended EHC Plan towards the end of November 2022. Although Mrs X was unhappy with the contents of the EHC Plan such as the named placement (current school), she asked the Council to finalise the EHC Plan so she could appeal to the SEND Tribunal. The Council issued a final amended EHC Plan in mid-December 2022, which was approximately nine weeks later than timescales allow.

Y’s absence from school

34. In mid-October 2022, with the support of a community service, Mrs X referred Y to the Child and Adolescent Mental Health Services (CAMHS) as she noticed during the first school term, Y’s mental health needs had increased and was unsure if Y would be able to continue attending school. Towards the end of October 2022, CAMHS wrote to Mrs X and informed her it had placed Y on the waiting list for an initial assessment.
35. At the end of October 2022, Y stopped attending school.
36. At the beginning of November 2022, the School met with Mrs X, the Complex Needs Team, a Family Support Worker and specialist staff from the School to discuss the next steps of getting Y back to school. During the meeting, the School said it advised Mrs X to consider a reduced timetable and a reintegration plan for Y. However, Mrs X said Y would not be able to reintegrate back into school as their anxiety was related to the school itself.
37. During Y’s absence from School, Mrs X said she gave the School the letter she received from CAMHS which stated Y was on the waiting list for an initial assessment as evidence to support Y was unwell to attend school.
38. In late-November 2022, the School told the Council Y had not attended school for over 15 days. It said it had offered Y online learning and engagement during their absence from school. It asked the Council to confirm if it was now responsible for providing Y with suitable alternative provision. The Council responded to the School towards the end of December 2022 and asked it if it had a medical certificate to support Y’s absence. At the beginning of January 2023, the Council contacted Mrs X to obtain medical evidence.
39. In mid-December 2022, the Council conducted an emergency annual review meeting shortly after it had issued Y’s EHC Plan.
40. The Council later wrote to Mrs X with its notice of decision. It told Mrs X it would not amend the current EHC Plan as the emergency review meeting was held two days after the EHC Plan being finalised and so the Plan was still reflective of Y’s current needs. It believed the current provision was still suitable and the School remained responsible to provide it.
41. Mrs X appealed to the SEND Tribunal at the beginning of February 2023. She then complained to us.

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Findings

Reassessment request

42. In March 2022, Mrs X requested the Council to reassess Y’s needs and support outlined in their EHC Plan. The Council acknowledged Mrs X’s request however it failed to take any action. It should have written to Mrs X within 15 days of her request with its decision. This was fault and not in line with legislation. As a result, Mrs X lost her right of appeal to the SEND Tribunal. It caused Mrs X frustration. It also caused Mrs X uncertainty as she believes if the Council had communicated with her properly, Y may have had suitable provision in place and possibly a suitable placement too.

Annual review and amendments to the EHC Plan

43. The annual review meeting took place in July 2022. The meeting record indicates the Council considered amending Y’s EHC Plan. Following the annual review meeting, the Council failed to notify Mrs X of its decision to amend the EHC Plan. This was fault and not in line with legislation. As a result, Mrs X contacted the Council several times for an update. It caused Mrs X frustration and further uncertainty as to whether the Council was going to amend the EHC Plan or not.
44. As the Council decided to amend the EHC Plan, it should have issued a final amended EHC Plan within 12 weeks of the annual review meeting, as outlined between paragraphs 16 and 18 of this decision statement. The Council delayed issuing the final EHC Plan by approximately nine weeks. I note the Council’s reasons for the delay however it was still fault. It caused Mrs X further frustration and uncertainty and delayed her right of appeal. Again, if the Council had promptly amended the EHC Plan, Mrs X believes Y may have had suitable provision in place and possibly a suitable placement too.
45. I note the Council apologised for poorly communicating with Mrs X and for its delay with the review process and amending the EHC Plan. This was appropriate however, the Council will now further remedy the injustice caused to Mrs X.

Y’s absence from school

46. Y stopped attending school at the end of October 2022. Mrs X said this was due to Y’s increased anxiety related to the school.

The evidence I have viewed shows the School told the Council about Y’s absence in late-November 2022. The School asked the Council to confirm whether it was now the Council’s responsibility to provide suitable alternative provision to Y. The Council delayed responding to the School. The Council should have considered whether it had a statutory duty to provide alternative provision for Y as soon as it became aware they were not attending school. Not doing so was fault.

47. I cannot say what type of alternative provision the Council would have provided to Y between the end of October and mid-December 2022 so I am unable to remedy any loss of education during that time. However, I recognise the matter would have caused Mrs X uncertainty which the Council has now agreed to remedy.

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Agreed actions

48. Within one month of the final decision, the Council has agreed it will:
• apologise to Mrs X for the frustration and uncertainty it caused by not responding to her request for a reassessment;
• apologise to Mrs X for the uncertainty it caused by not taking action sooner when it became aware Y was not attending school; and
• pay Mrs X a symbolic payment of £400 for the frustration and uncertainty it caused by poorly communicating with Mrs X, its delay with the review process and amending the EHC Plan and for the delay in action in relation to Y not attending school.
49. Within one month of the final decision, the Council has agreed it will:
• remind staff to action a parent’s request for a reassessment of EHC Plan needs and support and to notify them within 15 days of the request of its decision;
• remind staff to notify parents of its decision following an annual review meeting;
• review with staff the timescale of amending EHC Plans and finalising them, in line with legislation; and
• review with staff the importance of not delaying action as soon as it becomes aware a child is not attending school for reasons under paragraph 20.
50. The Council will provide us with evidence it has complied with the above actions.

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Final decision

51. I have now completed my investigation. The Council was at fault. It has agreed to the recommendations to remedy the injustice caused and prevent a recurrence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman