Summary: Mrs B complained that the Council in respect of her son C’s special educational needs, had failed to reassess C’s needs, to issue amended Education, Health and Care Plans following two annual reviews, to provide alternative education while he was out of school, to progress a personal budget request or respond to her complaints about the matter in a timely or accurate way. We found the Council was at fault in all these areas. C has missed out on education for a significant period of time and Mrs B had been caused distress, frustration and financial hardship. The Council has agreed to make payments to Mrs B and C and to provide an update on improvements to its SEND service.

The complaint

1. Mrs B complained that Kent County Council (the Council) in respect of her son, C’s special educational needs:
• failed to act on Mrs B’s reassessment request sent to the Council and acknowledged as received in early December 2022, then denied ever receiving it;
• failed to send amended Education Health and Care (EHC) Plans following the annual reviews in January 2022 and January 2023;
• failed to consider alternative educational provision for C (in accordance with section 19 of the Education Act 1996) from December 2022 until June 2024;
• refused to reimburse expenses Mrs B incurred trying to provide C with some education while he was unable to attend school;
• delayed excessively in approving an Education Other Than At School (EOTAS) request first made in June 2023 and has never sent a formal decision to Mrs B on this provision; and
• delayed excessively in dealing with her complaint about these issues.
2. This has caused Mrs B significant distress and frustration and C has missed out on essential education and support.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)

Back to top

What I have and have not investigated

5. I have investigated Mrs B’s complaint from December 2022 when she made the request for a reassessment of C’s needs up until June 2024 when the Annual Review was held.

Back to top

How I considered this complaint

6. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Special educational needs

9. 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 Tribunal or the council can do this. 

Reassessments of EHC Plans

10. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
11. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
12. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
13. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan

Personal Budgets

14. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Alternative educational provision

15. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. 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)

What happened

Background

17. Mrs B’s son C has health conditions and needs additional support at school. He had an EHC Plan dated June 2021. He stopped attending school at the end of the school year in 2021 due to anxiety. He started receiving two hours of online tuition from September 2021, increasing to four hours in November 2021, but the actual amount varied from week to week. At the annual review in February 2022 the Council agreed a new placement for September 2022. It did not issue an amended EHC Plan.

Request for reassessment

18. On 3 December 2022 Mrs B requested the Council reassess C’s educational needs. She said he had been unable to attend his current school or over 12 months due to anxiety. He had been receiving four hours a week of tuition since November 2021 but was finding it difficult and really needed in-person tuition.
19. The Council acknowledged the request and said it had been referred to the relevant team.

Annual review 2023

20. At the annual review in January 2023 the school raised concerns about C’s non-attendance and recommended a change of placement, saying that C could not cope with the school environment. The Council did not issue an amended EHC Plan after this review or take any action.
21. Another review was held in June 2023. It was noted that C had not attended school for a long time, that the school had exhausted all its options for reengagement, the school environment was not right for him, and he needed an EOTAS package.

Personal budget

22. On 2 October 2023 the Council agreed to cost and complete a personal budget form and to let Mrs B know that the request was being forwarded to senior management for approval. Mrs B asked for an update on 20 October 2023 and the caseworker asked her for details of what an EOTAS package might contain and who would provide it. Mrs B provided details on 18 January 2024 and the caseworker forwarded the request to a manager. They chased the manager twice in February 2024 but received no response.
23. There was no further action by the Council. The school chased up the EOTAS package on 23 May 2024 and said it had done so on several occasions.

Annual review 2024

24. Another annual review was held in June 2024. The school confirmed C was on a very slow transition to reengage back into school. His attendance had increased from 1% to 4 %.

Formal complaint

25. Mrs B complained to the Council about the lack of education or progress with the reassessment in July 2023. Mrs B complained to us in December 2023, but we sent the complaint back to the Council to respond to.
26. The Council did not respond until 27 March 2024, acknowledging that it had not shared any amended EHC Plans following the last two annual reviews and had provided no updates since June 2023. It apologised, said it would send copies of the amended EHC Plans and keep her updated with the progress of the Personal Budget. It offered her £500 for the delay in dealing with the complaint.
27. Mrs B escalated the complaint to stage two of the Council’s complaints process on 28 March 2024. She asked the Council to refund costs she had incurred trying to provide education for C.
28. The Council did not respond until 6 August 2024. It said it did not have a record of the request for a reassessment. It said the personal budget request had been received in October 2023 (it was made in June 2023), sent for approval in January 2024 and had now been approved. The Council said it was satisfied with the provision the school was putting in place and it would not refund her costs as they did not cover the provision detailed in C’s EHC Plan. It made no offer of a remedy.
29. Mrs B complained to us again. The Council sent an apology letter in October 2024 and issued a final EHC Plan in January 2025. C was now accessing full-time education at the school.
30. In response to my enquiries the Council accepts it did not act on the reassessment request made in December 2022 or offer any alternative provision or consider if the online provision was sufficient. It said it has no evidence the personal budget was ever approved or agreed but did not inform Mrs B of this. It said it was willing to make a symbolic payment to Mrs B and C.

Analysis

Reassessment request

31. The Council failed to act on Mrs B’s reassessment request and later denied ever receiving it. This was fault which meant C did not receive appropriate support to either re-engage with the school or access alternative provision via an EOTAS package and caused Mrs B significant distress and frustration.

Amended EHC Plans

32. The Council failed to complete the annual review process in 2022 or 2023 or issue amended EHC Plans to address C’s difficulties at his current placement. This was fault which contributed to a lack of support for C in addition to uncertainty and distress for Mrs B.

Alternative educational provision

33. The Council was aware by December 2022 that C had not attended school since June 2021 and was only receiving a maximum of four hours of tuition a week. It did not consider if this was sufficient for C’s needs throughout the whole period yet said in the complaint response in August 2024 that it was satisfied with the provision. The Council failed to consider its duties under section 19 of the Education Act 1996 and failed to ensure C received a suitable education from December 2022 until June 2024 (approximately 4.5 terms). This was fault which caused injustice to C and Mrs B.

Reimbursement of expenses Mrs B incurred

34. The Council failed to properly consider whether it should reimburse costs Mrs B had incurred while C was out of school. It simply said the costs did not cover the provision detailed in the EHC Plan. This was an insensitive and incomplete response which ignored the fact that the EHC Plan was over two years out of date, that the Council had failed to make any alternative provision or respond to the personal budget request. This was fault which exacerbated the injustice caused to Mrs B and C.

EOTAS request

35. This package was requested by the school and Mrs B in June 2023 following the annual review. The Council took some action in October 2023 and referred the personal budget for approval in January 2024, but then took no further action and failed to respond to repeated enquiries from Mrs B or the school. This was fault which contributed to C not receiving appropriate education and to the frustration and distress experienced by Mrs B.
36. The Council exacerbated the situation by saying in both complaint responses that the personal budget was being approved and then had been approved. The Council has confirmed this never happened.

Complaint handling

37. The Council took far too long to respond to Mrs B’s complaints: eight months at stage one and five months at stage two. This was fault exacerbated by the inaccurate and incomplete information in both responses which failed to address the injustice caused to Mrs B or C. I acknowledge that the first response contained a £500 payment for the delay but note at no point did it offer any remedy for C’s lack of education. This further fault caused Mrs B to have to complain to us for appropriate redress.

Back to top

Action

38. In recognition of the injustice caused to Mrs B and C, I recommended the Council within one month of the date of my final decision:
• apologises to Mrs B;
• pays Mrs B (in addition to the £500 already offered for the complaint delays) a further £500; and
• pays Mrs B for the benefit of C’s education, £9,000 for the loss of education for 4.5 terms @ £2000 per term.

Service improvements

39. I note that the Council has been working on making improvements to its SEND service (detailed in its Improvement Plan) following the Improvement Notice issued by Ofsted and the Care Quality Commission in March 2023. This is monitored on a six monthly basis by the Department for Education. I further note that in August 2024 the Children and Families Minister lifted the Improvement Notice.
40. But I also note that we have still made service improvement recommendations in ten cases since August 2024. Given this complaint is covered by the period prior to August 2024, I see no benefit in making further service improvement recommendations as this work is clearly ongoing with the Department for Education.
41. However, it would be helpful if the Council could provide an update (within one month of my final decision) on the steps it has taken to improve:
• Dealing with Annual Reviews and issuing amended EHC Plans.
• Providing alternative education for children out of school due to anxiety.
• Making and communicating decisions around Personal Budgets.
• Dealing with complaints within a reasonable period of time and providing quality responses with a remedy where appropriate.
42. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

Back to top

Decision

43. I find fault causing injustice. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman