Summary: Mrs B says the Council delayed making a decision following a review of her son’s education, health and care plan, issued the wrong decision and failed to put in place education for her son. The Council delayed issuing a decision following the review and then issued the wrong decision but there is no fault in the failure to put in place education for Mrs B’s son for the period before the appeal right arose. An apology, payment to Mrs B and a reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• delayed reaching a decision following a review of her son’s education, health and care plan (EHC Plan);
• wrongly refused to amend her son’s EHC Plan; and
• failed to put in place education for her son.
2. Mrs B says the Council’s actions have had a life changing effect on her family as she has had to leave her job to look after her son and it has had a significant impact on her mental health. Mrs B says her son has missed out on education.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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)
7. 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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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

What should have happened

11. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child's needs and what arrangements should be made to meet them. Councils can name a school placement, or type of placement, in section I.
12. The Department for Education publishes statutory guidance, the SEND Code of Practice (the code of practice), which sets out the duties of councils.
13. The code of practice says:
• EHC Plans should be used to actively monitor children and young people's progress towards their outcomes and longer term aspirations. They must be reviewed by the local authority as a minimum every 12 months.
• Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend it, or cease to maintain it, and notify the child's parent or the young person and the school or other institution attended.
• If the EHC Plan needs amending, the local authority should start the process of amendment without delay. If the local authority decides not to amend the EHC Plan or decides to cease to maintain it, they must notify the child's parent or the young person of their right to appeal that decision and the time limits for doing so, of the requirements for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

What happened

14. Mrs B’s son has special educational needs and has an EHC Plan. In 2023 Mrs B’s son was attending a mainstream school but was struggling with his attendance. The allocated school asked for an early annual review in May 2023. At the review Mrs B told the Council she wanted education other than at school (EOTAS) for her son. Mrs B told the Council her son had not attended school for 15 days and although the school had put in place alternative provision that was not appropriate as her son could not attend a school setting. Mrs B asked for alternative provision. The Council told Mrs B it would consider that at the annual review.
15. The annual review took place on 17 May 2023. The meeting recommended changes to the EHC Plan. As Mrs B had asked for EOTAS the Council agreed to put that request to its panel.
16. The panel considered the request for EOTAS on 22 June. The panel did not agree that and said the allocated school was appropriate and support should be given to integrate Mrs B’s son into school. The Council took the case back to panel on 6 July to reconsider as the previous panel had not been able to access one of the documents. The panel again agreed the allocated school was suitable.
17. The allocated school sent Mrs B a reintegration plan for her son on 20 July. Mrs B says she felt she had no option at that point but to home educate her son and she withdrew him from the school.
18. The Council wrote to Mrs B on 26 July to tell her it intended to maintain the EHC Plan and not make any amendments.
19. On 11 September, after another case worker took over, the Council wrote to Mrs B to apologise for issuing the wrong letter following the annual review. The Council said the letter should have confirmed it intended to make amendments to the EHC Plan. The Council says it intended to issue a new EHC Plan but did not do so as Mrs B put in an appeal in relation to the EHC Plan already in place. The tribunal will consider that appeal later this year.

Analysis

20. Mrs B says the Council delayed reaching a decision following the review of her son’s EHC Plan which delayed her right of appeal. Mrs B also says the Council wrongly told her it did not intend to amend the EHC Plan.
21. The Council should have sent Mrs B a decision about whether it intended to amend the EHC Plan for her son within four weeks of the annual review in May 2023. The Council failed to meet that timescale as it did not send Mrs B a decision until 26 July 2023. That delay is fault. That delay meant Mrs B’s appeal right was delayed.
22. I am also concerned when writing to Mrs B on 26 July 2023 the Council told her it did not intend to amend her son’s EHC Plan. The Council accepts that information was incorrect and it should have told Mrs B it would amend the EHC Plan. As the recommendation from the annual review was to amend the EHC Plan the letter telling Mrs B the Council intended to maintain the EHC Plan was inaccurate and that is fault. Had the Council issued the right letter Mrs B would have received an amended EHC Plan rather than having to appeal the Council’s decision.
23. I do not consider it likely though, on the balance of probability, Mrs B’s situation would have been different had the Council told her it intended to amend the EHC Plan and then issued an amended EHC Plan. That is because it is clear the Council’s view is the mainstream placement attended by Mrs B’s son remains suitable for him and Mrs B does not agree. So, even if the Council had followed the right process I am satisfied it is likely Mrs B would still have had to appeal.
24. Mrs B says her son missed out on education from May 2023 as he could not attend his allocated school and the Council failed to put in place alternative provision. For the period from 26 July 2023 any failure to put in place education for Mrs B’s son is outside the Ombudsman’s jurisdiction. That is because Mrs B had a right of appeal and exercised it.
25. I have considered the period between May 2023 and July 2023. The evidence I have seen satisfies me the Council’s considered the allocated school an appropriate placement for Mrs B’s son and that he should be reintegrated into that placement. So, from the Council’s point of view, suitable education was available for Mrs B’s son. I appreciate Mrs B strongly disagrees with that view. However, that is not a matter I can comment on because it is now a matter tribunal will decide. So, I cannot seek any remedy for missed education from May 2023.
26. I consider though Mrs B has suffered an injustice because she has experienced frustration. Mrs B also had her appeal right delayed. As remedy I recommended the Council apologise to Mrs B and pay her £300. I also recommended the Council remind officers dealing with EHC Plans of the need to ensure they comply with the timescales set out in the code of practice when issuing decisions following reviews. The Council should also remind officers of the need to ensure decision letters issued following a review reflect the decision reached at the review. The Council has agreed to my recommendations.

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Agreed action

27. Within one month of my decision the Council should:
• apologise to Mrs B for the frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £300; and
• send a reminder to officers dealing with reviews of EHC Plans to ensure they are aware of the timescales they need to meet when issuing a decision following a review and that the letter needs to reflect the decision reached at the review.

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Final decision

28. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman