Summary: The Council failed to provide Mr B’s son, Y, with any education for over two years, and has failed to provide sufficient education since January 2024. It also failed to issue an amended Education, Health and Care Plan since it was decided changes were needed in February 2023. The Council has agreed to make payments to Mr B and Y and take action to improve its service.

The complaint

1. Mr B complains that the Council failed to provide his son, Y, with any education between September 2021 and October 2023 and since then, it has not provided sufficient education. Mr B also complains that the Council has not amended Y’s Education, Health and Care (EHC) Plan since an annual review in February 2023. Mr B says the Council’s failings have caused the family distress and Y’s speech and social skills have regressed.

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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. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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. 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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What I have and have not investigated

7. I have investigated events since September 2021. While some parts of Mr B’s complaint have been made late, I have decided to exercise discretion to investigate events that Mr B has been aware of for more than 12 months.

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How I considered this complaint

8. I have:
• considered the complaint and the documents provided by Mr B;
• discussed the issues with Mr B;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and Mr B the opportunity to comment on my draft decision.
9. 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

Special educational needs

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
11. 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).
12. 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 and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• 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. (SEN Code paragraph 9.166)
• 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)
• 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.
• Councils must issue amended plans as quickly as possible and within 8 weeks of the original amendment notice. (Section 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196)

Background and key events

13. Y has complex needs relating to a diagnosis of autism. He has an EHC Plan which sets out his special educational needs and how those needs will be met.
14. Y was attending a residential school until July 2021. The placement ended because the school considered it could no longer meet Y’s needs and ensure his safety. Y was 17 years old at the time.
15. The Council amended Y’s EHC Plan and the final plan was issued in August 2021. It said that Y would access a bespoke programme via an Education Other Than at School (EOTAS) programme.
16. In October, Mr B complained to the Council that Y was not receiving any education. In the Council’s response, it set out the steps it had taken to try and secure alternative education. It accepted that Y had been without educational provision since September. It apologised and said it was committed to securing appropriate educational provision and would keep Mr B informed of its progress.
17. Y lived at home until July 2022, when he moved into a residential home.
18. Mr B made a further complaint in January 2023. He said that Y had been out of education for almost 18 months and he had not received an update in over three months.
19. In the Council’s response to Mr B’s complaint, it acknowledged that appropriate educational provision had not been in place for Y, and the service had not acted in a timely way to secure suitable educational provision. It said that an interim offer of educational provision had been made in January 2023 which it hoped to set up as quickly as possible. The Council apologised for the delays and the limited communication.
20. In February, an Educational Psychology assessment and Annual Review Meeting took place.
21. The Council wrote to Mr B in May to inform him that it had decided to make changes to Y’s EHC Plan. A revised final EHC Plan has not yet been issued.
22. The Council secured a tutor for Y in October 2023. Y started to receive three hours of education each week in January 2024. Mr B does not consider this to be sufficient.

Analysis

23. The Council failed to provide any education between September 2021 and January 2024. This was fault.
24. Y has received around three hours of education each week since January 2024. I do not consider the Council has provided Y with sufficient suitable education. This is fault. If there had been no fault by the Council here, I consider it likely that Y would have received around four hours of education each day. I reached this view after considering a proposed timetable which was drawn up after Y’s final EHC Plan was issued in August 2021.
25. Councils should review EHC Plans on at least an annual basis. An annual review meeting was held in February 2023, 18 months after the final EHC Plan was issued in August 2021. This delay was fault.
26. Councils must notify the parent of its decision to maintain, amend or discontinue the EHC Plan within four weeks of a review meeting. The Council notified Mr B that it intended to change Y’s EHC Plan in May 2023, ten weeks after the review meeting. This delay was fault.
27. Councils must issue amended plans as quickly as possible and within eight weeks of the amendment notice. It is now around 16 months since the amendment notice was issued in May 2023 and the Council has not yet issued an amended plan. This delay is fault. Mr B was not happy with the revisions the Council intended to make but he has been unable to appeal because the Council has failed to issue a final plan.
28. I do not consider the Council has done enough to secure suitable special educational provision for Y. He has not received suitable provision for around three years due to failings by the Council. This will inevitably have had a significant impact on Y. I consider the Council’s failings have also caused Mr B and his family significant distress and frustration.

Service improvements

29. Over the last few months, we have upheld several complaints relating to similar issues. The actions we recommended included:
• Reviewing the reasons for its high staff turnover within its SEN department and formulating an action plan to address these issues. (Our reference 24 005 581)
• Reviewing whether any staff require training to ensure they understand the Council’s duties under the SEN Code of Practice. (Our reference 23 017 635)
• Producing an action plan listing the steps it is taking to address the causes of the delays assessing Education, Health and Care needs and issuing EHC Plans. (Our reference 23 015 546)
• Providing us with an action plan which sets out how it will ensure failures to secure special educational provision will not happen again. (Our reference 23 013 716)
• Providing us with an update of the lessons learnt and changes made following the Council’s review of its EHC Plan process. (Our reference 23 010 016)

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Agreed action

30. Within four weeks of my final decision, the Council will take the following actions:
• Make a payment of £5220 to Mr B for Y’s educational benefit. This is a symbolic payment to acknowledge the impact of the missed provision.
• Apologise to Mr B and make a symbolic payment of £750 to recognise his family’s distress and frustration.
31. Within eight weeks of my final decision, the Council will take the following actions:
• Issue a final EHC Plan and provide evidence that Y is receiving the provision set out in that plan. If Mr B is not happy with the contents of the plan, he will have the right to appeal to the SEND Tribunal.
• Provide us with an updated action plan to show the actions it has taken and proposes to take to address the reasons for the delays in the EHC Plan process and to ensure it is able to promptly secure suitable special educational provision for children and young people in its area.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman