Summary: The complainant (Mrs X) said the Council failed within its duties to her son (Y) for whom it maintains Education Health and Care Plan. We found fault in the Council’s delays to issue Y’s amended Education Health and Care Plan following its Annual Review in June 2022 and in its inadequate communication with Mrs X. We also found fault with the Council’s failure to arrange respite services for Y from June 2023. These faults caused uncertainty and distress. We do not propose to find fault in the way the Council handled alternative provision for Y. Some of the issues Mrs X complained about were or could have been appealed to the Special Educational Needs and Disabilities Tribunal or were linked to her appeal. The Council agreed to apologise, make a symbolic payment for Mrs X’s distress and to carry out some service improvements.

The complaint

1. Mrs X complains about the Council’s services for her son (Y) who has an Education Health and Care (EHC) Plan. She says the Council failed to:
• Comply with its duties when issuing Y’s EHC Plan;
• Adhere to the timescales for Annual Review in 2022;
• Secure full-time education for Y;
• Find a specialist school placement for Y;
• Ensure all educational provision are delivered without parental involvement;
• Ensure continuation of Y’s provision during holidays;
• Secure updated professional reports for Y;
• Deliver 12 hours of respite provision;
• Adequately communicate with her.
2. Mrs X says the Council’s failings meant Y has not received enough support at the time he was out of school. Mrs X also says the situation had negative impact on her as she could not return to work, socialise with family and friends, undertake education or training and manage day to day tasks. Her physical and mental health was badly affected as well as the family’s financial situation.

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. 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)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I have and have not investigated

11. As explained in paragraph four of this decision we would normally not investigate anything that happened more than 12 months from the date when the complainant came to us. Mrs X complained to us at the beginning of January 2024, so the starting point for our investigation should be January 2023. I consider, however, there are good reasons for exercising our discretion and investigating what happened from June 2022. This is because it would be difficult to investigate the matters complained about without looking at the Annual Review of Y’s EHC Plan which took place in June 2022. If Mrs X was unhappy about the earlier events, including issuing of Y’s EHC Plan, she should have complained at the time.
12. For the reasons explained in paragraphs six and seven I did not investigate anything that was appealed to the SEND Tribunal at the beginning of December 2023 or anything closely linked to the appealed issues. This refers to:
• Finding a specialist school placement for Y. Not naming a specific school in Section I can be appealed to the SEND Tribunal and this would be the right way of challenging the Council. When considering Mrs X’s appeal the SEND Tribunal will decide on the shape of education and whether Y should be educated in a particular school.
• Ensuring all educational provision are delivered without parental involvement. If Y needs his education to be provided in a specific way, including having an extra person present or without his mother being present, this would need to be clarified in his EHC Plan. The Council’s failure to include this requirement in Section F can be appealed to the SEND Tribunal.
• Ensuring continuation of Y’s educational provision during school holidays. As pointed out in paragraph 22 of this decision children for whom the Council has a duty to provide education when not attending school should have provision which is equivalent to the education they would receive in school. Any extension of the Council’s duty beyond school terms would need specific mention in Y’s EHC Plan and the failure to include it could and has been challenged through an appeal to the SEND Tribunal.
• Securing updated professional reports for Y. There is no specific duty for the Council to get updated advice but the lack of such advice might result in the child’s EHC Plan not representing accurately child’s needs and provisions needed to address them. Mrs X has appealed Sections B and F of Y’s EHC Plan to the SEND Tribunal.
• Social care provision and its delivery, including 12 hours of respite provision, from the date of Y’s final EHC Plan issued in October 2023. Mrs X asked for the Tribunal’s recommendations on Y’s social care provision. The Tribunal will review the adequacy of the Council’s social care support offered so far and will make its recommendations. Delivery of the social care package of support is closely linked with the appeal issues.

Back to top

How I considered this complaint

13. I considered the information Mrs X provided.
14. I made enquiries with the Council and considered the information it provided.
15. I referred to our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” (the Focus Report) published in July 2022.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative framework

Annual Reviews

17. Councils’ duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHC Plan;
• In any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
18. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

SEND Tribunal

19. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• 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. (Children and Families Act 2014 S.51(2))

Delivery of education and special educational provision

20. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
21. 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.
22. 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’)
23. At least 380 sessions shall be held at a school during any school year. Every school day must have two sessions divided by a break. The length of each session, break and the school day is determined by the school’s governing body. (The Education (School Day and School Year) (England) Regulations)
24. The term “waking day curriculum” generally means that the person’s special educational needs are such that they call for special educational provision to be delivered beyond “normal hours”. It may be linked with residential placement, but not necessarily so. (East Sussex CC v TW [2016] UKUT 528 (AAC))

Respite provision

25. Every council has the general duty to safeguard and promote the welfare of children within their area who are in need and to promote the upbringing of such children by their families. (Children Act 1989 Section 17(1))
26. A council that carries out a parent carer’s needs assessment must consider the assessment and decide whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide. (Children Act 1989 Section 17ZF)

What happened

Background

27. In March 2020 Y stopped attending his school (the School).
28. The Council issued an EHC Plan for Y in April 2021.
29. In June 2021 the Council carried out a parent carer needs assessment and decided to grant direct payments for 12 hours a month respite provision for Mrs X at the rate of £12.66 per hour.
30. In December 2021 the Council carried out a Child and Family assessment for Y and held monthly meetings and visits following this assessment.
31. The Council contacted the animal farm project (Provider 1) in January 2022. The Council explained it had agreed to deliver to Y up to 15 hours of home tutoring per week. It was seeking extra provision for Y outside his home and without his mother present. Y started attending Provider 1 in May 2022. The main aim of this provision was to address Y’s social, emotional and mental health needs.
32. In February and April 2022 the Council consulted some special schools seeking a placement for Y.

Annual Review of Y’s EHC Plan

33. At the beginning of June 2022 the Council held an Annual Review for Y. It noted:
• Y was happy with his tutor and Provider 1;
• As Y’s tutor could not offer more than 15 hours the Council would look at the possibility of finding an extra tutor for Y as well as increasing Y’s sessions with Provider 1;
• Mrs X asked for physical exercise classes for Y from a provider who supported children with additional needs (Provider 2);
• Mrs X asked for an Education Otherwise than at School (EOTAS) package for Y;
• Mrs X explained she needed to get back to work and asked for a support worker for Y. She underlined the impact of her having to support Y full-time on the family.
• The importance of some respite for Mrs X, which she had been receiving for 12 hours a month;
• Regular children’s services involvement with Y and his family through the Child in Need meetings and home visits;
• Mrs X appealed the Children with Disabilities team decision, refusing its involvement.
34. The Council told Mrs X it would amend Y’s EHC Plan following its review.
35. In October 2022 the Council consulted with some further special schools for Y.
36. The Council sent Mrs draft EHC Plans for Y in November and December 2022.
37. In the early summer 2023 the Council agreed to get the EP updated advice for Y. The EP prepared her advice at the end of October 2023, following consultations with Mrs X and the professionals involved with Y which took place in September. Mrs X was not happy with the extent of the EP advice.
38. In the third week of October 2023 the Council issued Y’s final EHC Plan. In Section I it said Y needed to be educated in a special school. Social Care provision included direct payments for 12 hours a month of respite/short breaks.
39. At the end of October 2023 the EP prepared her advice for Y to inform the Council’s position on Mrs X’s EOTAS request. Due to the nature of Y’s needs, the EP could not meet him directly but based her report on the discussions with Y’s mother and observation of Y’s session at Provider 1.

Appeal to the SEND Tribunal

40. Mrs X appealed Sections B, F and I of Y’s final EHC Plan at the beginning of December 2023. She said:
• The recent EP advice was not satisfactory as it did not include any recommendations for support;
• The Council should have accepted Y needed an EOTAS or name a specific residential placement in Section I, as Y had been out of school for over three years.
41. Mrs X also asked for Tribunal’s recommendations for the health and social care sections of Y’s EHC Plan. She said Y needed full Occupational Therapy and social care assessments.
42. In January 2024 the Council carried out Y’s Annual Review.

Education and support for Y’s special educational needs

43. At the Annual Review meeting in June 2022 the Council and Mrs X discussed Y’s education. He was receiving 15 hours of individual face-to-face tutoring and accessing Provider 1 twice a week.
44. In September 2022 the Council started funding physical exercise classes for Y twice a week with Provider 2.
45. In mid-April 2023 Mrs X asked the Council to provide Y with an EOTAS package including provision during school holidays and extra support during tutoring sessions so Mrs X would not need to be present. Mrs X also asked for Y’s tutoring reports and the Council’s policy on school hours, term times and 38-week provision. A month later Mrs X contacted the Council again, asking for its response.
46. In May and June the Council held meetings to discuss Y’s education and support. The Council communicated with Mrs X about Y’s EOTAS package.

Social care

47. In September 2022 the Council became aware of Mrs X’s struggle to meet Y’s needs and support him. This was after the children’s services’ involvement with Y was closed in May 2022.
48. In October and November 2022 the Council carried out a Child and Family assessment for Y, which recommended Early Help support. Mrs X did not consider this support was adequate.
49. In February 2023 the Council’s Children with Disabilities team told Mrs X Y did not meet criteria for their support.
50. In March 2023 the Council found out about Mrs X’s difficulties with finding a carer to provide respite support. She also struggled to manage direct payments. The Council suggested a potential carer but she was not suitable for Mrs X as could only deliver services at the weekends and during holidays.
51. At the beginning of April 2023 the Council carried out another Child and Family assessment for Y. It recorded Y’s reliance on Mrs X. Y’s tutor explained the need for Mrs X’s presence during her involvement with Y stems from the rules of the Council’s commissioning services. If the Council funded Y’s tutoring via direct payments, Y’s tutor could support him without his mother present. This could happen if the Council agreed Y needed an EOTAS package. Mrs X stressed the importance of her returning to work in view of the financial pressures on the family.
52. Mrs X advised the Council she could not find a carer who would accept the rate of pay offered by the Council. The Council said once she identified the carer and sent the details to the Council, it would take the case to the panel for the increase of the hourly carer’s rate. Following this assessment the Council closed its social care involvement as decided Y’s needs should be met by other services.
53. The Council told us it did not receive any further details about Mrs X’s request for higher payments. Mrs X was using her direct payments to fund specific activities for Y. In April 2023 and April 2024 the Council applied inflationary increase to an hourly rate of direct payments for Mrs X.
54. In her complaint to the Council in June 2023 Mrs X asked the Council to stop direct payments for respite and for the Council to arrange these services for Y. In its response from the end of August 2023 the Council said it would explore Mrs X’s request with the children’s services. Mrs X told us the Council had failed to make arrangements for the respite support.

Complaint

55. Mrs X complained to the Council in mid-September 2023. She said the Council failed to adequately communicate with her, adhere to the Annual Review timescales and agree a suitable EOTAS package for Y. She also asked for:
• Increased tutoring hours to enable the tutor supporting Y at Provider 2;
• The Council’s policy on the principles for educating children who are out of school;
• The Council’s reasons for its refusal to agree an EOTAS package for Y and extend Y’s education beyond school terms.
56. In response the Council said it had failed to issue Y’s EHC Plan following the Annual Review in June 2022 as it had been waiting for an updated Educational Psychology (EP) advice. Up until recently, the Council said, Y had not been able to access an EP assessment.
57. Mrs X was not happy with the Council’s response for the following reasons:
• The Council failed to address all the issues raised by her in her complaint, such as communication and failure to send her the Council’s policy on out of school education;
• In view of the extent of the Council’s failings within the Annual Review process an apology was not enough;
• Mrs X stressed the impact of the delay in finalising Y’s EHC Plan on her as she could not appeal the content of the plan and challenge the Council’s position on the support needed by Y
58. At the end of November the Council provided its stage two response, offering a payment of £1000. In its response to my draft decision the Council said Mrs X had accepted this payment, which the Council had completed in April 2024.

Analysis

Compliance with the Council’s duties when issuing Y’s EHC Plan

59. The Council issued Y’s EHC Plan in April 2021 so in this part Mrs X’s complaint is late. I did not find any good reasons to include 2021 in my investigation as Mrs X could have complained when Y’s EHC Plan was issued about anything she was not happy with the EHC Plan process.

Timescales for Annual Review in 2022

60. Following the Annual Review meeting at the beginning of June 2022, the Council should have issued an amended EHC Plan by the end of August 2022. This happened in late October 2023. The delay of nearly 14 months is fault and it caused significant injustice to Y and Mrs X:
• For Y – the Council agreed in June 2022 his EHC Plan needed to be amended. We cannot decide on the extent of the final amendments as during the year of delay Y’s needs might have further changed. There is no dispute, however, that his EHC Plan needed updating, so the lack of amendments, on the balance of probabilities, is likely to have meant Y’s support was not enough.
• For Mrs X – her appeal rights were delayed by over a year. Mrs X did not consider education and special educational provision secured for Y by the Council were enough to meet his needs. In particular she wished for his education to be delivered to develop Y’s independence from her. She also sought his education to be extended across school holidays. In view of the Council’s refusal to comply with Mrs X’s wishes, the only way of challenging the Council’s position was through an appeal to the SEND Tribunal. Mrs X appealed shortly after Y’s EHC Plan was issued in October 2023. The delay in issuing final EHC Plan after its Annual Review meant resolving the dispute on the package of education and provision for Y was delayed by over a year. Mrs X remained distressed about her inability to challenge the Council.
61. The Council told us the delay was caused by the EP’s difficulty in getting Y assessed because of his anxiety. This explanation is not convincing. The first mention of the Council agreeing for updated EP advice is in the meeting from early June 2023, which shows the Council’s decision on an EP involvement was delayed. Besides when the EP carried out her assessment in the autumn of 2023 she based her report on the consultation with Mrs X, the professionals supporting Y and Y’s observation at Provider 1. She did not have direct contact with Y. There is no reason why this could not have happened earlier.

Full-time education for Y

62. Within the timeframe of my investigation, so from June 2022 until the date of issuing Y’s final EHCP in October 2023, the Council was funding 15 hours of individual tutoring for Y and support from Provider 1. From September 2022 the Council also funded physical education sessions from Provider 2.
63. As explained in paragraph 22 of this decision for children who are out of school the Council should provide 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.
64. In the Focus Report mentioned in paragraph 15 of this decision we said: ‘Full-time education ranges from 21 hours per week at Key Stage 1 to 25 hours a week at Key Stage 4. If councils provide one-to-one tuition, the number of face-to-face hours could be fewer because the provision is more concentrated. But children are still entitled to a full-time education. Education provision must be based on an assessment of the individual child’s needs. The council should be able to demonstrate how it considered the child’s needs and decided what provision to make.’
65. From at least June 2022 Mrs X was asking for the increase in Y’s tutoring hours and more provision. The Council agreed for Y to receive physical education sessions from Provider 2 but continued to fund 15 hours of individual tutoring. I have seen the evidence the Council considered increasing the hours of individual tutoring but there were some formal obstacles on part of the tutoring agency to provide more hours. Besides the Council had to have regard to Y’s needs, including anxiety about getting involved with new people.
66. I do not find fault in the way the Council carried out its duties to provide Y with education and support him in line with his EHC Plan for the following reasons:
• The Council arranged and funded 15 hours of individual tutoring and support for Y’s social, emotional and mental health needs from Provider 1;
• The Council held regular meetings to review Y’s education and support;
• Following Mrs X’s request at the Annual Review meeting in June 2022 the Council arranged and funded physical education sessions for Y from Provider 2;
• The Council considered increasing Y’s educational provision but faced the obstacles which were outside its control.
67. If during the appeal the SEND Tribunal decides Y needs an EOTAS package, it will consider its details including the extent of tutoring.

12 hours of respite provision

68. Y’s EHC Plan issued in April 2021 did not include provision for 12 hours a month of respite. The Council’s duty to deliver it was not, therefore, tied up with its duties under the Children and Families Act 2014.
69. The evidence shows since the parent carer assessment in June 2021 the Council agreed to provide Mrs X with 12 hours a month of respite and to deliver it through direct payments. The Council paid the funds to Mrs X’s account for this provision every four weeks.
70. In autumn 2022 Mrs X and Y were referred to the Early Help team in view of Mrs X’s struggle to support Y. In the Child and Family assessment carried out in February 2023 the Council confirmed it would fund respite support through direct payments. Mrs X told the Council she could not find a provider who would deliver this support within the Council’s rates. The Council stated if Mrs X found a provider with higher rates, it would reconsider the amount to be paid for this provision.
71. In June 2023 Mrs X asked the Council to stop direct payments and arrange respite support. There is no evidence the Council acted upon this request, even though it acknowledged it in its complaint response in August 2023. This is fault. The Council knew Mrs X, as a parent carer, needed 12 hours of respite support but could not access it.
72. The Council’s failure to arrange Y’s respite caused injustice to Mrs X. For many weeks she did not have support which she needed. When remedying Mrs X’s injustice I have only considered the period from June to October 2023. In her appeal Mrs X asked for the SEND Tribunal’s recommendations for social care sections of Y’s EHC Plan. The respite support is too closely linked to the appeal for us to look at from October 2023, when the Council issued Y’s final EHC Plan, which Mrs X appealed.
73. I did not investigate the adequacy of the Council’s social care involvement with Y, in particular the Council’s Children with Disabilities team’s refusal to offer support. In the complaint 23 013 719 we said there was not enough evidence of fault by the Council to warrant our involvement.

Communication

74. Although the Council regularly communicated with Mrs X about Y’s education and social care, I find it failed to provide her enough advice on the reasons for the Council’s position. This is specifically in view of Mrs X’s repeated requests to send her the Council’s policy clarifying why the Council refused to provide education to Y throughout school holidays and considered 15 hours of tutoring as sufficient.
75. The Council’s duty to provide information and advice that is clear, accurate and complete as well as to give reasons for its decisions is stated in the SEND Code of Practice 2015 and our guidance “Principles of Good Administrative Practice”. I accept the Council might not have a policy on the extent of school education, as these matters are regulated by the law on education and some issues are clarified by the case law. The Council’s failure to explain, however, the rules on school education and what Mrs X needed to do to pursue her objectives increased Mrs X distress and frustration.

Remedies

76. When considering a payment for Mrs X’s distress I recognise the Council has already paid Mrs X £1000. By this symbolic payment the Council acknowledged Mrs X’s distress caused by the delays within the Annual Review of Y’s EHC Plan. During my investigation I found other failings, which caused distress to Mrs X and need to be addressed by an extra payment.

Back to top

Agreed action

77. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• Apologise to Mrs X for the injustice caused to her by the faults identified within this complaint following our “Guidance on Remedies”;
• Pay Mrs X £300 to recognise the distress and uncertainty caused by the Council’s failures to arrange respite for Y and to provide adequate advice to Mrs X.

The Council should provide us with evidence it has complied with the above actions.

78. We also recommend the Council within three months provide us with its plan to ensure it carries out all actions within the Annual Reviews of children’s EHC Plans within the statutory timescales.

Back to top

Final decision

79. I uphold part of Mrs X’s complaint. For the reasons explained in the Analysis section I found fault with the Council in its delays to issue Y’s EHC Plan following its Annual Review and to provide Mrs X with adequate information. I also found fault with the Council’s failure to arrange respite services for Y from June 2023. I did not find fault with the Council when arranging alternative provision for Y. I have not investigated the issues of the complaint which have been appealed to the SEND Tribunal or were linked to the appeal. The Council has accepted my recommendations so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman