Summary: Mrs B complained about the Council’s handling of various matters concerned with their child’s special educational needs. We found fault with the Council’s delay in issuing an Education, Health and Care Plan and then for amending that plan without proper consultation. This caused injustice to Mrs B as distress and loss of opportunity to comment. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy that injustice and make a service improvement to prevent a repeat.

The complaint

1. Mrs B complained the Council:

• delayed in issuing an Education, Health and Care (EHC) Plan for her child, C, following a request it assess C’s needs in March 2023;
• failed to make the education provision identified for C in the EHC Plan, which it issued in December 2023;
• had failed since 2021 to ensure C had access to a full time education; and
• communicated poorly with her over these matters.

2. Mrs B said as a result C missed a large part of their education. Both she and C felt ignored and unsupported by the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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.
8. If 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)
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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How I considered this complaint

10. Before issuing this decision statement I considered:

• Mrs B’s complaint to the Ombudsman and any supporting information she provided;
• correspondence Mrs B exchanged with the Council pre-dating our investigation;
• information provided by the Council in response to written enquiries;
• relevant law and Government guidance referred to in the text below;
• relevant guidance published by this office referred to in the text below.

11. I also gave Mrs B and the Council a chance to comment on a draft version of this decision statement. I took account of their responses before finalising the decision statement.

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What I found

Relevant legal and administrative considerations

Education, Health and Care Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and arrangements 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 council or SEND Tribunal can do this. 
13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out how the Council should carry out an EHC needs assessment and produce an EHC Plan. The guidance follows the Children and Families Act 2014 and the SEN Regulations 2014. It says: 

• where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks; 
• if the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the SEND tribunal;
• if a parent appeals and the council concedes the appeal resulting in a consent order, or the SEND Tribunal upholds the appeal, then it will have 14 weeks to complete an assessment;

14. Otherwise, where a council agrees to a needs assessment, and then agrees to issue an EHC Plan, the whole process should take no more than 20 weeks. This is from the date of the assessment request until issue of the final EHC Plan (unless certain specific circumstances apply).  
15. A personal budget is a sum of money identified by the council as needed to pay for 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.
16. 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).
17. The council must arrange for the EHC Plan to be reviewed at least once a year. It must complete a review, as a minimum, within 12 months of the first EHC Plan.
18. 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 it issues its decision it has completed the review. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
19. If it decides to amend the EHC Plan, the law says the council 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 proposed amendments. (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.
20. A council can also amend an EHC Plan outside of an annual review. The Code suggests this is where it needs "minor or specific changes […] where a full review is not necessary” (paragraph 9.193). When amending a plan this way the Council must follow the same process as set out in paragraph 19. So, it must send notice of the proposed amendments to the parent or young person. It must offer them a meeting if they want to discuss the proposed change (paragraph 9.194).
21. In addition, a council must also review EHC plans at certain key milestones, known as ‘phase transfers’ (for example, when a child moves from primary to secondary phase). This includes when young people move between post-16 institutions (Year 12 and above). In these cases, the council should normally complete a review by 31 March when it expects a young person to transfer to a new institution for the new academic year.  
22. Parents and young people can appeal to the SEND Tribunal about various decisions including:

• when the Council declines to carry out an assessment;
• how a Plan describes a child or young person’s SEN (section B of the EHC Plan);
• the special educational provision set out in the Plan (Section F of the EHC Plan);
• the school or placement named in the Plan, or that it names no school or other placement (Section I of the EHC Plan);
• an amendment to any of these sections of 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. The provision usually 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.

The key facts

24. C is a young person now in Year 13 of their education. From Year 7, C was on the school roll of a mainstream school in the Council’s area. In 2021 (Year 9) they began to experience mental health problems. Their attendance declined and they did not attend school during Year 10 of their education.
25. In March 2023, when C was in Year 11 of their education, Mrs B asked the Council to assess their education, health and care needs. C remained out of school receiving some home tuition arranged by their school.
26. In April 2023 the Council refused the request. The Council said before this time it did not know C was not attending school.
27. I understand Mrs B did not appeal this decision. However, she did not abandon her attempt to obtain an EHC Plan for C. In early June 2023 Mrs B spoke to the Council, which gathered more information about C’s circumstances. Now it agreed to undertake an EHC assessment.
28. I note that in June 2023 the Council gathered the following information:

• that C had not attended school since 2021. The school arranged for C to receive some home tuition between two and five days a week (it did not record how many hours of tuition this comprised);
• that C had received care via NHS mental health services which had recommended a “slow and steady” approach towards reintegrating them into education. In August 2022 it had recommended C remain receiving home tuition;
• that C had been in contact with Early Help – part of the Council’s Children’s Services (social care);
• that the school said it had made the Council’s attendance team aware of C’s non-attendance.

29. Following its decision to assess, the Council gathered information and issued a draft EHC Plan at the end of September 2023. It invited Mrs B’s comments.
30. In response, at the start of October, Mrs B asked the Council to provide an ‘EOTAS’ package of education for C (education other than at school). She asked it to fund home tuition for four hours a week and make a one-off payment for C to undertake a specialist vocational training course. The training course involved some limited face-to-face tuition. Mrs B said she hoped after attending this, C could re-integrate into mainstream education from September 2024, when their Year 13 began.
31. The following day the Council said in an email that it would agree to Mrs B’s suggestions and provide an EOTAS package until July 2024. She could receive a personal budget to cover the expenses of C’s education.
32. In November 2023 Mrs B complained at the delay in issuing C’s EHC Plan. She said the draft EHC Plan she had received did not accurately reflect C’s needs. She said while the Council had agreed to provide a personal budget, this was not in payment. Mrs B said meanwhile, she paid for a tutor to support C.
33. Around the same time the Council asked Mrs B to provide invoices for the education provision bought for C. It asked if there were any colleges Mrs B wanted it to consult with for C to attend in September 2024. Mrs B suggested at that point C wanted to undertake a further vocational course.
34. In December 2023 the Council issued a final EHC Plan for C. Section F set out education provision C would receive “when in an education setting”. It said this included supporting C with transition back into full time education. Section I said the Council would make EOTAS provision for C. It detailed this as comprising four hours a week personal tuition and enrolment on the vocational course. It said it would fund this provision through a personal budget.
35. In January 2024 the Council replied to Mrs B’s complaint. It said it had issued the EHC Plan six weeks late and apologised for this. It explained it had now transferred C’s case to its post-16 team.
36. In March 2024 Mrs B sent emails to the Council saying C would like to attend a named further education college from September. She said the Council had not answered earlier emails she sent about this matter. The Council acknowledged this correspondence and clarified with Mrs B the college and course C wanted to attend.
37. In April 2024 Mrs B escalated her complaint. She said C had multiple different caseworkers and the Council had failed to answer several emails she had sent. Mrs B said that C had no education setting for September 2024. Mrs B now said C wanted to attend a named college but needed to pass exams first. There was no plan for how C would sit those.
38. There followed some communications with C’s latest caseworker. The Council provided me with the text of an email it says it sent to Mrs B. This asked her to let it know how C got on at a visit to the college. It said if the visit went well, it would consult the college. But Mrs B sent an email around two weeks later asking for contact. She understood the Council would be back in touch but said she had heard nothing more.
39. In May 2024 the Council gave a further reply to the complaint. It apologised for difficulties Mrs B experienced contacting its post-16 team. It said C’s caseworker would consult with the named college and update Mrs B after that.
40. In June 2024 the Council issued an amended EHC Plan for C. This named the college Mrs B asked for in March. It is unclear what consultation the Council had with the college before doing this. I asked it to share details with me of the consultation undertaken but it did not provide any. The Council did not consult with Mrs B or C on the amendment to the Plan.
41. At the beginning of July 2024 Mrs B said she had asked in both May and June for the Council to review C’s EHC Plan, but it had not done this. She repeated her view the Plan contained out of date information. Mrs B also expressed dissatisfaction that following the amendment in June 2024, C no longer had a personal budget and that they needed a transition plan to return to college. Mrs B said back in November 2023, in a telephone conversation, the Council had agreed to support with an extra £500 for C to undertake functional skills training.
42. Over the next two months followed exchanges of emails between Mrs B and the caseworker, where Mrs B repeatedly asked the Council to undertake a review of C’s EHC Plan. In these exchanges Mrs B added that C needed to sit exams before they could attend college and she had to pay to arrange these. The Council agreed to consider any receipts Mrs B produced to refund the cost of these. Mrs B told me she subsequently sent receipts for the exam costs (around £620) but had heard nothing further.
43. Currently, C has not begun college. Mrs B continues to arrange home tuition.

My findings - the Ombudsman’s jurisdiction

44. The term jurisdiction refers to our legal powers to investigate a complaint. There are two legal limits placed on our powers which impacted the extent to which I could investigate Mrs B’s complaint.
45. The first was the question of time. Mrs B contacted us about her complaint in March 2024, twelve months after she asked the Council to assess C’s education, health and care needs. We could investigate all events from the date Mrs B asked for the assessment.
46. However, Mrs B’s complaint also invited us to consider events over the previous two years when C was out of school. On balance, I decided that I could not investigate this period. I found the Council had some knowledge of C’s absence from school. The school commented it had spoken to the Council’s ‘attendance team’ about their absence. The Council said it had no record of that. So, a conflict existed about if such discussion happened. But there was no conflict that C worked with the Council’s Early Help service (part of its Children’s Services).
47. Yet I did not consider on its own, this provided good reason for Mrs B not complaining sooner about C’s absence from education. Because there was no evidence that Mrs B or anyone else acting for C, brought to the Council’s attention any concern that C should receive more education before March 2023.
48. The other consideration was that of the ‘alternative remedy’. Mrs B had three opportunities to appeal to a SEND tribunal:

• first, when the Council refused to assess C’s needs (April 2023);
• second, when the Council issued the final EHC Plan (December 2023);
• third, when the Council issued the amended EHC Plan (June 2024).

49. I decided not to investigate the Council’s decision to refuse to assess C’s needs, because this was an appealable decision. I noted that Mrs B did not eventually need to appeal, as the Council changed its mind and agreed to assess C’s needs in June 2023. But that did not influence my thinking here. This was because the law makes either the Council or the SEND Tribunal the decision maker, when it comes to deciding if a child or young person needs an EHC assessment. It is not the Ombudsman’s role to comment on the merits of such decisions, only on the process followed by the Council. While Mrs B disagreed with the Council’s decision to refuse an assessment for C, I did not find fault in how the Council made or communicated its decision.
50. I also decided I could not investigate those parts of C’s EHC Plan, which Mrs B said were out of date. In particular, how the EHC Plan described C’s needs. Mrs B had two opportunities to appeal this in December 2023 and June 2024. I could not say whether the Plan accurately described C’s needs as the decision maker here would again be the Council or SEND Tribunal.
51. I also did not investigate whether, as part of their EOTAS package the Council should have paid for functional skills training for C. The December 2023 Plan clearly set out what the EOTAS package encompassed. If, Mrs B did not think that this reflected all the discussion she had with the Council about what C needed, then she could have appealed on that point. She could have asked for Section F of C’s Plan to include this provision.
52. However, I decided I could investigate events between the issue of the two EHC Plans. I found the Council clearly communicated to Mrs B it had agreed EOTAS provision for C for the 2023/24 academic year. The December 2023 EHC Plan reflected that agreement. It is arguable Mrs B could have sought an appeal at that point to also name a placement from September 2024 in Section I of the Plan. But I could see reasons why she did not do so. At the time, C did not have a fixed position on what education they wanted from September. While, the Council indicated it would keep the Plan under review.
53. But from June 2024 Mrs B had the choice to appeal the placement, how the Plan described C’s needs and / or the education provision detailed in Section F of the Plan. I reiterate the law makes the Council or the SEND Tribunal the decision maker in deciding these matters. So, I considered these were matters best suited for a SEND Tribunal to look at.
54. For clarity therefore, my investigation did not look at events beyond the end of the summer term 2024.

My findings - on the substance of the complaint

Complaint about delay in issuing EHC Plan

55. The law clearly sets out that when the Council agrees a request to undertake an education, health and care needs assessment it has 20 weeks to complete that, from the date of the request.
56. The law also clearly sets out that when a council refuses to assess, and the parent appeals to the SEND Tribunal, if the appeal succeeds the Council have 14 weeks to then complete the assessment. This will be from the date of any Tribunal order, or any concession through a consent order.
57. Where the law is unclear, is what happens when there is no appeal but the Council changes its mind, as happened here. During my investigation the Council changed its position on what time period applied. Its response to Mrs B’s complaint calculated it had 20 weeks from the date it changed its mind. But it revised that position, saying it subsequently considered it had 14 weeks from that date.
58. I considered the latter position correct and in line with the spirit of the Regulations and the law. In which case the Council delayed by 12 weeks in issuing C with a final EHC Plan. That was a fault.
59. I considered this caused some injustice to Mrs B as uncertainty, a form of distress. For during those 12 weeks, she did not know exactly when the Council would issue the Plan nor its final content. She had begun buying education services in that time for C, without final assurance the Council would pay for these.
60. However, I noted the Council had assured Mrs B in October 2023, around nine weeks before it issued the Plan, that it agreed an EOTAS package. It had also agreed with Mrs B the outline of what that would comprise. It is not clear from the papers whether C had any gap in their tuition before this date, as the school funded tuition ended in July 2023. But the papers suggested Mrs B funded tuition in that time and later received repayment via the personal budget.
61. So, I did not consider any injustice in this case extended to a lack of provision for C. Because I had no reason to find the EHC Plan, if issued on time, would have had different content to that issued in December 2023.
62. I took account of the considerations set out in paragraphs 59 to 61 when deciding what action the Council should take to remedy Mrs B’s injustice.

The complaint about lack of provision

63. I found the December 2023 EHC Plan written mainly from the perspective of what support C would receive, once they began attending an education institution. But it also set out that in the short-term C would not attend an education institution. Instead, they would receive an EOTAS package in terms requested by Mrs B in October 2023. I could not say the Council failed to deliver this, although I noted three possible areas of dispute:

• first, whether the Council verbally agreed to some functional skills training for C in September 2023;
• second, whether Mrs B’s personal budget expired on issue of the amended EHC Plan in June 2024, before the end of the academic year;
• third whether the Council should have extended the personal budget to pay for exams C needed to pass.

64. On the first point, I explained above why I could not investigate this.
65. However, my investigation could encompass the second and third points. I considered it would be fault if the Council did not honour its commitment to provide the EOTAS package until the end of the academic year (July 2024). I also considered it would be fault for the Council not to extend that package to encompass any exams to reflect study during that academic year. Mrs B could not reasonably anticipate the need for exam costs within the personal budget in October 2023, when making her personal budget request. For reasons I go on to explain, I also found fault in how the Council monitored C’s EHC Plan after issuing it in December 2023. Had it done so, this might have led it to consider this point sooner. But as part of the agreed actions in this case, the Council has agreed to do so now.
66. I considered this part of the complaint highlighted an inattention by the Council towards planning for C’s transition to college, intended for September 2024. The Council was not under a legal duty to review C’s EHC Plan before amending it to name the college. This was because C was not attending an education institution in Year 12, meaning the duty to carry out a review before transition to a new education institution did not arise. However, the Council may have considered it good practice to hold a review given the how long it was since C attended school. The spirit of the law around transition reviews, if not its letter, pointed towards such an approach being good practice.
67. But even though the Council was under no duty to hold a review, it could not simply amend the Plan without taking account of Mrs B and C’s wishes. Yet this is what it went on to do. The Code makes clear the Council must consult parents and / or young people if it intends to amend an EHC Plan, however minor the amendment. And it must offer a meeting if the parent or young person wants to discuss the change.
68. So, the Council was at fault for amending C’s EHC Plan in June 2023 without carrying out consultation first. Had it done so, then I have no doubt Mrs B and C would have asked for a meeting. Where they would have raised concerns that some of the Plan may be out of date and C’s transition to college.
69. Whether this would have caused the Council to make any other changes to the EHC Plan, I cannot say. I also repeat that Mrs B and C had the right to appeal the content of the amended Plan. So, I also cannot say if this fault impacted on the Plan, C has currently.
70. But it added to Mrs B’s distress that the Council did not consult her and C on the change. She missed the opportunity to make representations and this has contributed to her feeling the Council has not listened to her.
71. The Council compounded this distress in repeatedly rejecting Mrs B’s requests for a review. I have not called this fault, because as I explained above, I am not persuaded the Council was under a duty to review C’s EHC Plan before September 2024. But it should have recognised its failure to consult on the amended EHC Plan and its failure to offer a meeting that would flow from that.
72. I have not recommended a meeting at this stage given that, in any event, a review of C’s EHC Plan is now due. That review will have to consider why C has not begun college and consider how their education should now advance. It should also consider any steps Mrs B has taken to try to ensure C maintains access to some learning, while being without any personal budget.

The complaint C has not been in full-time education

73. I explained above why I did not investigate events before March 2023.
74. From March 2023 the Council knew C was not in school, and further, not receiving a full-time education. While I have not seen it has a record of how much home tuition C received, the suggestion from its June 2023 records is that it knew it fell short of a full-time provision.
75. I considered if, once it learnt this information, the Council should have done more to ensure C could access full-time education. This would be under the Section 19 duty. The Council could have considered arranging further provision itself or worked with C’s school, to see if it should provide more. There is no record of the Council’s consideration on this point.
76. However, I considered if there was, the Council would not have made more provision under Section 19. And that it would not have been at fault for adopting such a position. I reached this view after considering the following:

• the medical opinion which suggested C could not engage with full-time education from 2022;
• that C therefore needed home tuition against a background of limited academic demands;
• that this was what was in place therefore in March 2023;
• and that later, C received an EOTAS package which consisted of only four hours a week tuition as requested by Mrs B.

77. All this led me to conclude that C could not cope with the demands of a full-time education between March and July 2023.

The complaint about communications

78. I explained above that I found fault in the Council’s failure to consult Mrs B and C before amending her EHC Plan in June 2024.
79. Mrs B said before this date the Council failed to respond to several emails she sent. She also pointed towards C having a high turnover of caseworkers.
80. I could not find evidence the Council had failed to respond to emails as Mrs B said. However, if that was because the Council lost, or failed to save emails she sent, I would not find such evidence on the Council records. I noted Mrs B chased the Council at times following drift in its communications. First, in November 2023 when complaining about a lack of progress on issuing C’s final EHC Plan. Second, in April 2024 when pursuing a college placement for C from September.
81. While on both occasions the Council reacted and responded, I could understand Mrs B’s frustration she had to chase these matters. While the Council also agreed the turnover of caseworkers in C’s case was high and regrettable.
82. I therefore considered there was some additional fault here. However, I did not find this added to the distress already identified arising from the delay in issuing the EHC Plan and the Council’s failure to consult on the amendment to C’s EHC Plan.

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Agreed action

83. The Council accepts the findings set out above. To remedy the injustice caused to Mrs B it has agreed that within 20 working days of a decision on this complaint it will:
1. apologise to Mrs B accepting the findings of this investigation;
2. make a symbolic payment to Mrs B of £600 in recognition of the distress caused by its actions;
3. pay Mrs B any amounts outstanding for any home tuition and / or exam costs for which she has not received payment for the period September 2023 to July 2024. With its letter of apology, the Council should make clear what it understands Mrs B has requested and if it requires any further evidence of costs.
84. I recommended these actions after consulting the Ombudsman’s published guidance on remedies (see Guidance on remedies - Local Government and Social Care Ombudsman). The apology given by the Council should follow the advice set out in section 3.2 of that guidance. The amount of the distress payment reflects the two separable causes of distress set out above.
85. The Council has also agreed action to try and prevent a repeat of the fault identified in this case. Within two months of a decision on this case it will issue advice to its SEN caseworkers that:
1. where it changes its mind and agrees to undertake an education, health and care needs assessment having previously refused with no appeal being made; they should work on the basis they have a maximum 14 weeks to complete that assessment;
2. when it amends an EHC Plan, even for a minor amendment, it must consult the parent or young person in line with advice contained in the Government’s statutory Code of Practice.
86. The Council will provide us with evidence when it has complied with the above actions.

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Final decision

87. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs B. The Council agreed action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman