Summary: Miss X complained the Council delayed the issue of her son’s amended EHC Plan following an annual review, and that the alternative provision offered during the delay did not meet Y’s needs. We found fault causing injustice in relation to both matters complained about. The Council agreed to apologise to Miss X and make a payment to her, and another for Y’s benefit, to remedy the injustice caused.

The complaint

1. Miss X complained that the issuing of her son, Y’s, final (amended) Education and Health Care (EHC) Plan was subject to significant delay following an annual review in April 2022. She complained that the alternative provision offered to Y during the period of the delay did not meet his needs.
2. Miss X said the final (amended) EHC Plan, issued in August 2023, named an inappropriate educational setting. She appealed to the First-tier Tribunal (Special Educational Needs and Disability) about this. Miss X also complained that, since the Council issued the new EHC Plan, it has failed to provide full-time alternative provision.
3. Miss X says this has impacted Y’s development and increased issues with attachment. Miss X says she has been unable to work full-time, and this has had a detrimental impact on her finances.

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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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. 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)
8. 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) The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
9. 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)
10. 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

11. I have started my investigation at the point at which the Council decided to amend Y’s EHC Plan, in July 2022. That is because Miss X did not complain to the Council until May 2023. With reference to the legislation referenced at paragraph 5, if Miss X had wanted to complain about the Council’s failure to review Y’s EHC Plan within 12 months of its issue in January 2021, or about the provision offered to Y during the 2021-22 school year, she could have done so sooner.
12. The end point of my investigation is August 2023, when the new EHC plan was issued. From this point, Miss X had a right of appeal to the SEND Tribunal about the provision specified and the setting named in the new EHC Plan. The right of appeal puts these aspects of her complaint beyond our jurisdiction, meaning we cannot investigate them. In the event, Miss X appealed only the setting named. But, the fact that she could also have appealed the provision specified, or the Tribunal could have chosen to consider it, means we cannot look at the suitability of any alternative provision offered to Y from August 2023 onwards (i.e. during the school year 2023-24).
13. And so, I have focused my investigation on the events of the period July 2022 to August 2023, equivalent to the 2022-2023 school year.

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How I considered this complaint

14. I have:
• considered Miss X’s written complaint and supporting papers;
• talked to Miss X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• given Miss X and the Council the opportunity to comment on a draft version of this statement before making my final decision.

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What I found

Legal and administrative background

Education, health and care plan

15. 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. 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 First-tier Tribunal (Special Educational Needs and Disability) or council can do this.

Content of an EHC plan

16. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement

Maintaining the EHC plan

17. 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

18. 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.
19. 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) 
20. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting. (Section 22(2) and 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194 and 9.196)

Appeal rights

21. The First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal) considers appeals against council decisions regarding special educational needs.
22. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Alternative provision

23. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
26. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
27. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

28. Below is a summary of events that are either relevant to my investigation or are included to provide context. It is not an exhaustive chronology of every exchange between parties.

Academic year 2020-2021 (year 3)

29. Y has special educational needs and had an EHC Plan that was finalised in January 2021. The Plan set out support for Y, with a bespoke curriculum tailored to his learning capacity, delivered by a combination of 1:1 support, small group and whole class teaching; communication and interaction and sensory support; access to adult support at all times throughout the school day; and an emotional literacy programme.
30. The EHC Plan named a mainstream primary school, School A, in accordance with parental preference.

Academic year 2021-2022 (year 4)

31. The Council carried out an annual review of Y’s EHC Plan in April 2022.
32. By that time, Y was on a dual placement between School A and a local Pupil Referral Unit (PRU), School B, but was not attending either – the review noted that Y’s needs, as set out in Section F of his EHC Plan, could not be met by School A or School B. And so, an emergency package of alternative provision was put in place during year 4 of Y’s schooling. The package amounted to full-time provision, but was divided between several settings.
33. The Council issued an amendment notice for Y’s EHC Plan in July 2022. The Council’s records stated it had not sent consultations for a change of placement as the family’s preference was for Y to stay at School A.

Academic year 2022-2023 (year 5)

34. Miss X contacted the Council in October 2022 and requested an update following the annual review. Miss X was concerned that Y was, by that time, only receiving an hour of education a day. Again, an emergency package of provision was pieced together, that was equivalent to full-time hours. Again, this provision was made across several settings.
35. The Council carried out consultations with schools in November 2022.
36. Miss X complained to the Council in May 2023 about the delay in completing a review of Y’s EHC Plan and that Y had missed almost a year of formal education. Miss X said there had been changes of staff and poor communication throughout the process. Miss X said the Council had failed to secure regular, sustainable and appropriate alternative provision for Y.
37. The Council responded to Miss X’s complaint at stage one of its complaints procedure. The Council acknowledged there had been delays in the annual review process. The Council apologised to Miss X and said it would contact Miss X about Y’s placement. It said if Miss X wished to discuss her concerns about alternative provision, she should contact the Council again.
38. Miss X remained unsatisfied and asked for her complaint to be escalated to stage two. Miss X said she was still waiting for the Council to issue an amended final EHC plan for Y. Miss X said Y had missed a full year of formal education and communication had not improved. She was aware that a local authority specialist school, School C, was likely to be named in the new plan, against her preference.
39. The Council issued a final amended EHC plan in August 2023. It noted that all provisions were working well for Y. The Plan included School A as Y’s named setting until October 2023, and School C from October onwards.

Academic year 2023-2024 (year 6)

40. The Council responded to Miss X’s complaint at stage two of its complaints procedure. It confirmed that a final EHC Plan had been issued on 16 August, naming School C. The Council said whilst there had been delays in the process, the case officer had kept Miss X updated on a regular basis. The Council told Miss X that she had the right to appeal the named school in the final Plan. it also confirmed that it had provided additional funding to School A to arrange alternative provision from September 2021 until July 2023, and it had asked School A to continue with that provision at the start of the new term, to allow Y time to transition to the placement at School C. The Council explained that it had offered Miss X a way forward meeting with School C to discuss the placement and transition.
41. Y was added to School C’s roll in January 2024 but did not attend as Miss X considered the setting to be inadequate and unsuitable to meet Y’s needs. She appealed this aspect of the final EHC Plan to the SEND Tribunal.
42. Whilst awaiting the SEND Tribunal hearing, the Council offered Y a package of alternative provision that did not amount to full-time hours. Miss X had to leave her job to be at home with Y.
43. A few days before the SEND Tribunal hearing in May 2024, the Council agreed to name Miss X’s preferred setting, School D, in the amended EHCP. Y will start attending that setting in September 2024 (year 7).

Miss X’s account of the 2022-2023 school year

44. Miss X told me that she was content with the quantity of alternative provision offered to Y during the 2022-2023 school year, as it was full time, which had enabled her to work in a job that she loved. However, she had not been happy with the quality of the provision, because it was spread across a variety of settings. Y was ferried between placements by taxi, sometimes in the middle of the school day, which he found challenging and confusing. Miss X said that the patchwork of provision had left Y without a sense of belonging, and without the consistency required to build relationships with staff or children in any of the settings.
45. The placements frequently broke down. Miss X said this was partly because Y’s EHC Plan was, by then, very out of date. She gave Y’s educational assessment as an example – that had been carried out over the phone during lockdown in early 2021. And so, the succession of different staff members whom Y encountered in 2022-2023 were not adequately equipped to respond to his needs, as those needs had changed significantly in the intervening years.
46. Miss X told me that the experience has affected Y’s social skills as well as his educational attainment. He has spent most of his time with adults on a 1:1 basis, which has impacted his confidence and his ability to be himself: he feels the need to mimic other children in order to fit in, which can be problematic if their behaviour is undesirable. She said that Y “wants to learn, wants to be like everyone else”.
47. Miss X provided evidence that Y has had a recent NHS neurodiversity assessment, which has found that he doesn’t have ADHD, but education-based trauma.

Analysis

Delay

48. The Council did not issue the final amended plan within 8 weeks of the July 2022 amendment notice (with reference to the statutory timescales set out at paragraph 18). Rather, it took the Council 56 weeks from the amendment notice for it to issue Y’s amended final EHC Plan. So, there was significant avoidable delay by the Council in finalising the 2022 review of Y’s EHC Plan, which was fault. I acknowledge the Council’s acceptance, in responding to our enquiries on Miss X’s complaint, that it had acted with fault. The Council said it had not completed the 2022 review within the legal timeframe.
49. I find the avoidable delay was frustrating for Miss X, put her to avoidable time and trouble in chasing an outcome and pursuing a complaint, and delayed her ability to appeal any amended final plan. The delay also caused ongoing uncertainty and distress for both Miss X and Y. So, I find the fault caused them injustice.

Provision

50. With reference to the 2022-23 academic year, at the point at which the review took place, parental preference was for School A to remain as the named setting. But this was not a valid reason for the Council to delay in finalising the amended plan. The Council has acknowledged that the school named on Y’s original EHC Plan was unsuitable, and that it delayed in completing the consultations for a change of placement. This was fault.
51. When it accepted that the school named on the plan was unable to meet Y’s needs, the Council also accepted it had a duty to arrange alternative educational provision during this school year.
52. I have seen clear evidence that significant alternative provision was arranged during this period. It appears the alternative provision was shaped around activities that Y responded well to, and that the Council kept the provision under review, with input from an Educational Psychologist. it also responded promptly when the PRU excluded Y in late 2022, with new provision promptly put in place for the spring term. It also appears the Council was responsive to Miss X’s concerns about the timetable and transport arrangements. The provision amounted to full-time school hours, which enabled Miss X to continue to work during this academic year.
53. And so, the evidence suggests the Council took account of its Section 19 duties (as set out at paragraphs 23-27) in the 2022/23 academic year, by arranging full-time provision, keeping it under review, and responding promptly to events as they arose.
54. Despite this, I am persuaded by the powerful account given by Miss X that the range of provision attended by Y during the 2022-23 school year did not meet his needs, because it was delivered across a number of settings, and was based upon the contents of an outdated EHC Plan. And so, I find that the Council did not discharge its Section 42 duties (set out at paragraph 17) to arrange all of the special educational needs provision required to meet Y’s needs, given the breakdown in the placement named in the plan, and the subsequent delay in reviewing and reissuing a new plan. This was fault on the Council’s part.
55. This fault impacted on Y’s educational attainment and social and emotional development, leading to a diagnosis of education-based trauma. This was a significant injustice, which could have been avoided or reduced if the Council had issued an amended EHC Plan, naming a single setting in Section I of the Plan, and giving Miss X the right to appeal that setting, within the statutory timescales (I have already found that the Council’s failure to do so was fault).
56. I have decided not to make a recommendation that the Council should review how it deals with annual reviews of EHC Plans (and implement actions to ensure that statutory timescales are met when arranging reviews and finalising EHC Plans). That is because we have made similar recommendations to the Council in relation to several recent cases, with which we expect it to comply. I do not consider that there would be any additional value in repeating this recommendation.

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Agreed actions

57. To remedy the injustice caused by the identified faults, the Council has agreed to, within four weeks of my final decision:
• Apologise to Miss X and to Y for the faults identified above;
• Make a payment to Miss X of £1000 for the impact caused by the failure to adhere to statutory timescales when finalising the amended EHC Plan for Y; and
• Make a payment of £500 to Miss X, for Y’s benefit, for the impact of the fragmented provision during the academic year September 2022 to July 2023;
58. These payments are symbolic amounts in line with our published guidance on remedies.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have found fault by the Council causing injustice to Miss X and to Y. I have completed my investigation on the basis the Council has agreed to carry out the above actions as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman