Summary: We have completed our investigation. The Council was at fault. The Council has apologised and offered a financial remedy to Mr X. To remedy the injustice suffered, the Council should increase the offer of the financial payment to Mr X, to be in line with our Guidance on Remedies.

The complaint

1. Mr X complains the Council failed to review his child, Y’s, Education, Health and Care (EHC) Plan in line with statutory timeframes. Amongst the delay reported, he says it failed to notify him and his wife of their right to appeal to the SEND Tribunal.
2. Mr X complains about the Council failing to provide Y with the provision that is outlined in Section F of the plan and for failing to provide alternative provision when Y could not attend school.
3. Mr X complains about delay in providing respite care for Y, and the quality of the respite care provided.
4. Mr X says Y’s educational needs have not been met by the Council for many years. He says the situation has impacted the whole family. Mr X and his wife cannot work now due to having to be at home to take care of Y during the day. This has resulted in a decline in their mental health and emotional wellbeing. Mr X says this has had an impact on their younger child, as they have struggled to cope. Mr X has lost faith in the system and says he feels like the Council do not care.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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)

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What I have and have not investigated

11. I have investigated the delay in reviewing Y’s EHC Plan and the delay in issuing an amendment notice to Mr X.
12. I have investigated how the Council delivered education provision to Y from the date the amendment notice was issued to Mr X (following the EHC Plan review meeting) to the date the new final EHC Plan was issued in February 2024. This is because before, and after this time, Mr X had the option of lodging an appeal with the SEND Tribunal about the contents of the plan.
13. I have not investigated the complaint about the lack of respite care from children’s services. This is because this is a separate complaint, within a different category, and will be investigated as such.

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How I considered this complaint

14. I considered the complaint and information provided by Mr X and the Council.
15. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
16. Mr X and the Council had the opportunity to comment on my draft decision. I considered comments from Mr X and the Council before making a final decision.

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What I found

Law and guidance

17. 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. 
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 law says 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. (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.
21. 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)
22. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
23. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
24. 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)  

What happened

25. Mr X’s child, Y, has numerous health and care needs including diagnoses of autism spectrum disorder and attention deficit disorder.
26. Y is of primary school age but has had several school placements already. This is of concern to Mr X. Y has had an EHC Plan in place for several years.
27. In June 2023 the annual review of the EHC Plan took place.
28. Y enrolled in a new school setting in September 2023. The plan was to introduce Y to the setting gradually, with Y attending in the afternoons for short periods.
29. A part time timetable was agreed, with the view to finding alternative education for the morning sessions.
30. In September 2023 Mr X still had not received a decision about what the Council intended to do, following the EHC Plan review. Mr X complained to the Council about this.
31. In mid-September the Council replied to Mr X, in line with its corporate complaints policy, within 20 days.
32. Mr X’s complaint was upheld. The Council admitted fault. The Council records show that it did intend to amend the EHC Plan. This was noted in August 2023 on Council case records. The Council apologised to Mr X for the delay and for the distress caused. It outlined how it would work with Mr X to move forward. Timeframes for Mr X receiving the amended plan were proposed by the Council.
33. The following day Mr X received the first draft of the amended plan, with an invitation for him and his wife to make comments. Mr X never received an amendment notice.
34. Mr X disagreed with the contents of the plan however he says he felt unsure about what to tell the Council. He was concerned that saying he disagreed with the contents would create more delay.
35. Mr X said he knew his right to appeal to the SEND Tribunal about the contents of the plan would not be live until the Council issued the final amended plan.
36. At the end of September Mr X wrote to the Council. He informed the Council that Y was not able to attend school on a full-time basis and requested alternative provision.
37. In mid-October the Council replied to Mr X. It referred to a children’s social care assessment that was taking place and it said the school was looking into additional services to support Y. The school informed Mr X it had never said it was looking into additional services for Y.
38. Following Mr X and the Council deliberating the draft plan, the second draft EHC Plan was issued to Mr X in mid-October.
39. Towards the end of the month the Council said it would begin funding alternative provision for Y in the form of home tutoring sessions. It also said an educational psychologist and the SEND service would be carrying out a joint review of Y’s needs to provide further guidance to the Council. The Council planned to hold a meeting with parents and relevant professionals following the assessment.
40. Three weeks later the Council confirmed the tutoring was ready to start.
41. A review meeting with parents and professionals involved in Y’s care took place at the end of November 2023. The tutoring had not started. Y was still on a part time timetable.
42. The alternative education provider (Provider A) was asked by the Council to provide a written report outlining Y’s needs and its offer of provision.
43. Two weeks later Provider A submitted its report to the Council. In the meantime, the Council arranged for another headteacher to observe Y in school to assess Y’s needs.
44. The school and Provider A maintained contact with the Council and Mr X during the next few months. Mr X continued to raise concerns about the lack of alternative provision for Y and the EHC Plan still not being finalised.
45. In early January 2024 the Council took Y’s case to panel to decide upon staff to child (carer and tutor) ratio for providing alternative provision.
46. Mr X wrote to the Council again asking for his complaint to be escalated.
47. At the start of February 2024, the funding request for alternative education was still being considered by the Council. The final EHC Plan was issued.

My findings

48. Mr X lodged an appeal with the SEND Tribunal in April 2024. Matters relating to the content of the EHC Plan, and Y’s educational needs, past the date of the Final EHC Plan being issued are now matters to be considered by the Tribunal.

Delay

49. The Council was at fault for failing to review Y’s EHC Plan within the statutory timeframes. This included failure to issue an amendment notice to Mr X within four weeks of the review meeting and failure to issue the final plan within eight weeks of the review meeting.
50. In the stage two corporate complaints response this fault is admitted.
51. The final EHC Plan was issued almost 13 weeks later than it should have been. This delayed Mr X’s right to appeal to the SEND Tribunal and caused undue frustration and distress.
52. Mr X never received an amendment notice. Failure to issue a notice was fault by the Council. There was fault by the Council in its handling of Mr X’s complaint.
53. The Council had two opportunities to escalate Mr X’s complaint to stage two of its corporate complaint procedure. The stage two complaint response refers to two emails from Mr X in September 2023 and January 2024. The complaint process did not conclude until mid-April 2024.
54. The Council should have fulfilled stage two of its corporate complaints policy, according to its own guidance, within 20 working days, and where this was not possible, within a further 10 working days.
55. In stage two of the Council’s complaint response, it referred to an assessment of Y by a headteacher from another specialist school. It says this was carried out in December 2023. It appears this is inaccurate. Evidence suggests that this assessment was carried out in January 2024, approximately 4 weeks later.
56. The delay in fulfilling the complaint process and the inaccuracy of some information in the stage two response is fault by the Council. This fault caused Mr X further undue frustration and distress.

Educational Provision

57. In September 2023 Y started a new school. This marked a key transition in Y’s education.
58. There was confusion caused, mid-October 2023, by the Council, about its role in providing alternative provision for Y. It referred to provision being put in place by children’s social care and that school were looking to source additional support.
59. It is the Council’s responsibility to find alternative provision when a child is unable to attend school. Whilst the Council did not omit its responsibility overtly, referring to other services and their role in response to Mr X’s questions about alternative provision was unnecessary. It was unclear and caused confusion for Mr X.
60. Fault was admitted by the Council in recognition of loss of education between September 2023 and April 2024 and a financial remedy was offered to Mr X, with an apology.
61. A schedule of roughly 50% of what Y should have been offered, was provided during this time.
62. This impacted Y’s transition to the new school setting. It also impacted Mr and Mr X’s daily routine, and their ability to consider employment during normal office hours. Whilst this loss is unquantifiable, it is recognised as significant by Mr X.

Service Improvement

63. Multiple families in the Council area are experiencing similar issues to Mr X and his family.
64. We made 13 decisions about special educational needs complaints, in the last twelve months, where service improvements were recommended to the Council.
65. In March (complaint reference 23009810) , April (complaint reference 23010879) and May 2024 (complaint reference 23012418) we made recommendations about the Council maintaining oversight of the EHC Plan review process.
66. In May we asked the Council to provide us with a detailed action plan showing how it will ensure effective monitoring of the EHC Plan process with the aim to reducing delays experienced by families.
67. The Council provided us with an action plan. It has assigned specific targets to the SEND Service for the next 12 months. The targets focus on reducing delay, maintaining oversight, and ensuring the provision outlined in plans is delivered, with specific attention being paid to children who are out of school, and the use of appropriate part time timetables.
68. A period of implementation and evaluation must now take place. We will be monitoring the effectiveness of the Council’s action plan through complaint analysis over the next 12 months.
69. In July 2024 a review of the Council’s SEND services was published. The review was commissioned by the Council and carried out independently. Whilst the review focused on the EHC needs assessment, the theme of delay and lack of oversight was addressed.
70. Recognition was made of the large number of children and families who need support from the SEND services who are failed by the Council.
71. It is clear the Council are working to improve its SEND services.

Remedy

72. In February 2024 we made a recommendation to the Council to refer to our Guidance on Remedies when trying to put things right for families. It appears the Council tried to do so, with Mr X’s complaint.
73. The Council apologised to Mr X, acknowledging, in part, the fault it caused.
74. The Council offered Mr X a financial remedy payment of £1,700 in recognition of loss of educational provision, time and trouble, and delay in the EHC Plan review process. This consisted of:
• £1,200 for the loss of education,
• £200 for the delay in issuing the final EHC Plan, and
• £300 for the time and trouble caused to Mr X.
75. While the Council have made a considered effort to offer a financial remedy, in recognition of each point of fault, I do not consider this to be in line with our Guidance on Remedies.
76. Due to the amount of provision lost and the impact on Mr X’s appeal rights, because of delay, the Council should increase its offer of a financial remedy. This should take into consideration injustice suffered by Mr X and his family, caused by the loss of education and the delay in the EHC Plan review process.

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Agreed action

77. To remedy the injustice caused by the Council, to Mr X and Y, within four weeks of a final decision the Council has agreed to take the following action:
• Apologise to Mr X in line with our guidance on Making an Effective Apology. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings,
• Pay Mr X £1,500 to recognise the loss of education for Y from September 2023 – February 2024. I have recommended a payment towards the higher end of our scale because Y has numerous additional health and developmental needs that a lack of education may have exasperated,
• Pay Mr X £300 for delays identified in this case, and
• Pay Mr X £300 to recognise the time and trouble caused to Mr X and his family.
• In total, the Council should pay Mr X £2,100.
78. The Council should provide us with evidence it has complied with the above actions.
79. I am not making service improvement recommendations as part of this draft decision. This is because we have had assurance from the Council, and seen copy of the action plan it is working to fulfil, that address the key concerns raised by Mr X.
80. A period of implementation and evaluation will now take place by the Council. The Ombudsman will continue to monitor its effectiveness concerning EHC Plans, alternative provision and delay related matters.

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Final decision

I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused to Mr X and his family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman