Summary: There was fault by the Council. The Council delayed issuing an amended Education, Health and Care Plan after an annual review. This meant the parents appeal rights were delayed. The Council also did not monitor the progress of a funded reintegration plan into school. An apology, payment and revised procedure remedy the injustice of loss of education.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council has not delivered the provision in an Education, Health and Care (EHC) Plan from December 2021. Mrs X says her child, Y, has not been attending school from December 2021 until September 2023 and there has been no alternative educational provision.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. 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)
6. I do not intend to investigate events before December 2021. I have exercised discretion to investigate over 12 months before Mrs X made her official complaint to the Council as I can see from the annual review of December 2021 that the Council were aware of her son’s low attendance at that point.
7. The courts have established that if someone has appealed to the tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
10. This means that I have not investigated the loss of education from 19 July 2022 onwards, as this is inextricably linked to the appeal against the setting to the SEND tribunal.
11. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

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How I considered this complaint

12. I read the papers put in by Mrs X.
13. I considered the Council’s comments about the complaint and any supporting documents it provided.
14. 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

15. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
17. Within four weeks of a review meeting, the council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
18. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must tell the child’s parents or the young person of their right to appeal the decision to the tribunal.
19. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. The final EHC plan should be sent within 12 weeks of the date of the review meeting.

Key facts

20. Y had an EHC plan and a place at a specialist school.
21. There was an early annual review of the EHC plan in December 2021. Y was attending for 2 days per week on a part-time timetable.
22. There is a file note of a telephone conversation between Mrs X and the Council in June 2022. This said that Y had not been in school full time since March 2020. Mrs X said that they had bought their own learning material as school had not provided anything.
23. The Council issued a decision to amend the EHC Plan on 13 June 2022. On 20 June 2022 Mrs X asked the Council to amend section I to Education Other Than At School (EOTAS). There is an email on file from the Council officer on 18 July 2022 which says that Y was not accessing school and that a referral to an ‘in-house education programme’ could be made.
24. The Council issued the final EHC Plan on 19 July 2022 and Mrs X appealed to the SEND tribunal on 23 August. Mrs X emailed the school on 26 September 2022 to ask for a full time education for Y.
25. The SEND tribunal ordered the Council to refer Y for tuition in March 2023 but no suitable provider was found. After the SEND tribunal, an EHC Plan naming an alternative specialist school was issued on 20 July 2023. Y started at the new school in September 2023 and is attending full time. The Council maintained the EHC Plan at the annual review in October 2023.

My analysis

December 2021 until July 2022

26. The December 2021 review noted that Y attended the specialist school for 2 days a week in 2020-2021. Y had not attended school from Sept 2021 onwards, apart from a few days (attendance 17%). The school asked for more funding for a reintegration programme.
27. Mrs X emailed the Council on 28 June 2022. She said ‘in the annual review meeting she discussed her concerns about school but the school assured her they would be able to meet Y’s needs. They were willing to give it another go.’
28. The Council took seven months to finalise the EHC Plan after the annual review in December 2021. This was fault and delayed Mrs X’s appeal to the SEND tribunal by four months.
29. In its response to my enquiries, the Council has apologised for this delay. This delay caused injustice to Mrs X. The SEND tribunal named a new school on the EHC Plan, a school at which Y is thriving and attending full time from September 2023. On the balance of probabilities, it is likely that this decision to name the new school could have been made four months sooner and so I consider that a payment towards the four months loss of education remedies the injustice.
30. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. As Y was not in school, I propose a remedy at the maximum rate for one and a half terms, a total of £3600.

July 2022 onwards

31. As I explained above, Y’s non attendance at school from July 2022 is inextricably linked to the matters Mrs X appealed to the SEND tribunal about. So I have not investigated or proposed a remedy for this time.
32. The Council said in its response to my enquiries that ‘there is no evidence to suggest that it was aware Y was not in school until March 2023’. I do note there is evidence on the Council’s files from the annual review of December 2021 and the emails of September 2022 that officers were aware Y was not in school.
33. Y had been out of school for a year and the Council failed to monitor the extra £19,000 given to the school for the reintegration plan in September 2022. Y had also been on part-time table for at least a year prior the 2021 annual review so the Council was already aware he was not receiving a full time education. There were lost opportunities to consider if the placement named was still suitable.

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Agreed action

34. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £3600 for Y’s lost education due to the four month delay being able to appeal to the SEND tribunal.
35. Within two months of the date of the decision on this complaint the Council should:
• Review its procedures and provide guidance to its staff to ensure decisions made to maintain, amend or cease EHCP’s following reviews are issued within the statutory timescales.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation of this complaint. This complaint is upheld, as there is fault by the Council. The steps outlined above remedy the injustice to the complainant.

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Investigator's decision on behalf of the Ombudsman