Summary: Ms X complains the Council delayed in reviewing her child D’s Education, Health, and Care Plan, and communicated poorly with the family. There was fault by the Council which caused avoidable distress to D and Ms X. It also delayed D in returning to an educational setting when they wanted to, following a period of Elective Home Education. The Council agreed to pay a financial remedy and re-allocate the family’s case to a different officer in its Special Educational Needs and Disabilities service. It will also share our decision with relevant staff for discussion and learning from the faults identified.

The complaint

1. Ms X complains the Council failed to review her child D’s Education, Health, and Care (EHC) Plan properly, and consult schools to be named in the Plan, within statutory timescales, following a December 2022 review. She also says the Council did not communicate with her properly or respond to her queries from 2020 to 2023, and discriminated against D.
2. Ms X says because of this:
• D wanted to return to a school setting in 2023 following a period of elective home education, but this did not happen until a year after they requested it because of Council delays. This caused D distress; and
• Ms X had to continue to provide education to D at home. She experienced stress which worsened her physical and mental health and impacted on her existing disability.
3. Ms X wants the Council to:
• issue a final amended EHC Plan which meets D’s needs;
• assign a new, competent caseworker from its Special Educational Needs and Disabilities (SEND) service to the case; and
• provide clear timescales for how long its SEND service will take to respond to her emails.

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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. 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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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

9. I considered:
• information provided by Ms X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Ms X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Reviewing EHC Plans

14. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC reviews and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
15. 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.
16. Within four weeks of a review meeting, the council must notify 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) 
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent 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.
18. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

Appeal rights

19. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
20. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the:
• description of the child’s SEN;
• SEN provision specified;
• school or placement specified; or
• fact that no school or placement is specified.

Background

21. Ms X’s child, D, has special educational needs (SEN). They have had an EHC Plan since 2020.
22. In September 2022, D started year 5. They were being Electively Home Educated (EHE) and had been since 2021. EHE is where a family chooses (under Section 7 of the Education Act 1996) to educate a child at home, with no formal educational arrangement in place with the Council. When a child with an EHC Plan becomes EHE:
• the Council still has a duty to check they are receiving an appropriate education, but the parent(s) take on full responsibility for arranging and paying for the education;
• the Council no longer has a statutory duty to provide the SEN provision set out in the child’s EHC Plan because the parent(s) are deemed to be making their own suitable alternative arrangements. However, councils have a power to choose to provide support. In D’s case, the Council decided to use its power to provide Ms X with funding via a “personal budget”, to fund the SEN provision in D’s Plan while they were EHE; and
• the Council must still review the EHC Plan annually to assure itself the provision continues to be appropriate, and the child’s special educational needs continue to be met.
23. The Council carried out an annual review meeting for D’s EHC Plan in December 2022. This review meeting was held on the basis D would be continuing with EHE. However, a month later, in January 2023, Ms X told the Council D no longer wanted to be EHE and asked it to find an educational placement so they could return to a school setting.
24. In June 2023, towards the end of year 5, the Council had not completed its review of D’s EHC Plan, or identified a school placement as Ms X had asked it to five months earlier. Ms X complained to the Council.
25. In September 2023, D started year 6, and was still EHE, with no school placement identified and no final amended EHC Plan. The Council completed its consideration of Ms X’s complaint, and she came to the Ombudsman in October 2023.
26. After Ms X came to the Ombudsman, the Council identified a school placement and issued a final amended EHC Plan for D in November 2023. Ms X said this was not a final Plan but having considered the evidence, I decided it was.
27. D began at the school in January 2024. Ms X has since made another, separate, complaint to the Council, and then to the Ombudsman. This separate complaint is about:
• delivery of D’s EHC Plan since they started at the school; and
• delays in reviewing the EHC Plan again, to prepare for D's transfer to secondary school for the 2024/2025 school year.

My findings

Time period investigated

28. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Ms X brought this complaint to the Ombudsman in October 2023, so we would usually only look at what happened after October 2022. Ms X complained about the Council’s actions following the December 2022 EHC Plan review, but also about poor communication from the Council from 2020 onwards.
29. I am satisfied Ms X could have complained to the Council about events before the 2022/2023 school year earlier. There are no good reasons to investigate those earlier events now. Therefore, I only considered events during the 2022/2023 school year.
30. I have also not investigated new events from the 2023/2024 school year, because that is after Ms X brought this complaint to the Ombudsman. Ms X has made a new complaint to the Council, and then to the Ombudsman, about events in the 2023/2024 school year, as described at paragraph 27, which we will consider separately.

Education, Health, and Care Plan review

31. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
32. The Council should have taken the necessary steps to ensure it could issue a final amended Plan within twelve weeks of the December 2022 review meeting. The evidence shows the Council took five months to start consulting schools to be named in the EHC Plan after Ms X asked it to, which delayed the review process. The Council took eleven months to issue a final Plan following the December 2022 meeting, a delay of eight months, which was fault. In responding to Ms X’s complaint, the Council accepted this was fault.
33. I considered whether the delays in identifying a school placement, and finalising an amended EHC Plan, caused D and/or Ms X an injustice. I decided the delays caused them distress and frustration, for which the Council should provide a remedy. This distress includes:
• distress to D because they wanted to be back in a school placement with their peers and were delayed in doing so;
• distress to Ms X because she had to continue to educate D at home for longer than she wanted to, and the delay was frustrating for her; and
• the fact the delay frustrated Ms X’s right to appeal to the SEND Tribunal about the final Plan, had she wished to do so.
34. However, Ms X confirmed D’s EHE arrangements, and the SEN provision funded via their personal budget, continued while they were waiting for a school place. Therefore, D did not miss any education or SEN provision from their latest EHC Plan due to the delay.
35. I also considered whether the delays in the EHC Plan review meant D lost out on added special educational provision, which they may have received if the Council had finalised the amended Plan sooner. I compared the SEN provision D received when EHE, with that set out in the final November 2023 Plan which named a school placement. I do not consider D lost out on added provision.

Communication with Ms X

36. In responding to Ms X’s complaint, the Council accepted fault in how it communicated with her during the delayed EHC Plan review process. I agree the Council was at fault. This added to Ms X’s distress, which the Council should remedy.
37. When Ms X complained to the Council in June 2023, she asked it to reallocate D’s case to a different officer in its Special Educational Needs and Disabilities (SEND) service. She felt the relationship between the family and D’s allocated officer had broken down due to the repeated failings in communication and wanted a fresh start. The Council told the Ombudsman that when Ms X asked for this it did not have enough staffing capacity to reallocate D’s case. It did not provide any evidence to support why it could not do so. I am not satisfied the Council properly considered whether it could facilitate Ms X’s request, given the repeated failings in D’s case. In the circumstances, I consider this to be fault. The Council should provide the family with a different allocated officer.

Discrimination and The Equality Act 2010

38. Ms X says the Council discriminated against D based on disability.
39. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
40. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
41. We cannot decide if an organisation has breached the Equality Act, or whether it has discriminated against an individual in its treatment of them. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
42. I do not find fault with how the Council considered its duties to D under the Equality Act. It took too long to review the EHC Plan and find a school placement. The Council was at fault for delay. However, it does not follow from this fault that the Council failed to consider D’s disability and individual circumstances.

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Agreed action

43. Within one month of our final decision the Council will:
1. re-allocate the family’s case to a different officer in its Special Educational Needs and Disabilities (SEND) service; and
2. pay the family a total of £800, comprising of:
1. £500 to recognise the avoidable distress caused to Ms X by the Council’s failings; and
2. £300 to recognise the avoidable distress to D.
44. Within three months of our final decision the Council will share a copy of our final decision with all staff in its Special Educational Needs and Disabilities (SEND) service, to discuss the faults identified and share learning.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. There was fault by the Council which caused avoidable distress to D and Ms X. The Council agreed to our recommendations to remedy this injustice. It will also share our decision with relevant staff for discussion and learning from the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman