Summary: We upheld a complaint about a failure to ensure Z received the special educational provision in her Education, Health and Care (EHC) Plan and a delay in completing Z’s annual review. The Council has already apologised, offered payments to reflect the lost provision, avoidable frustration, uncertainty and delay in appeal rights. This is an appropriate remedy.

The complaint

1. Ms X, a representative, complained for Ms Y about Ms Y’s child, Z. She complained the Council:
1. Delayed issuing Z’s (first) final Education, Health and Care Plan.
2. Failed to ensure educational provision was in place during Year 6 (staring September 2022)
3. Failed to fund special educational provision in Year 7 (starting September 2023) meaning Z’s school placement broke down leaving her out of education for the school year.
4. Failed to complete the urgent annual review that was called in the autumn term of 2023.
2. This caused a loss of two years of education for Z and meant Ms Y had to pay for educational provision.

Back to top

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 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. 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)
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).

Back to top

What I have and have not investigated

8. There was a right of appeal to the SEND Tribunal against the school placement named in Section I of Z’s August 2023 EHC Plan. We usually expect parents to use appeal rights where they are unhappy with a school placement named in an EHC Plan and we would not investigate unless we consider it unreasonable to use appeal rights. In Z’s case, there was an urgent annual review meeting held by her school in the Autumn term after she stopped attending school. It was not reasonable for Ms Y to appeal the placement given she was likely expecting the Council to amend the educational placement on the EHC Plan.
9. The period I have investigated is August 2023 to August 2024. Complaints about things which happened before August 2023 are late and there is no good reason for me to investigate. So I have not investigated complaints (a) and (b). I have investigated complaints (c) and (d) because they are in time.

Back to top

How I considered this complaint

10. I considered the complaint to us, the Council’s responses to the complaint and documents set out in this draft statement.
11. Ms 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

Relevant law and guidance

12. 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 council can do this.
13. The EHC Plan is set out in sections which include:
• Section B: Special educational needs (SEN).
• Section F: The special educational provision (SEP) needed by the child or the young person.
• Section I: The name and/or type of educational placement.
• Section J: Personal budget.
14. If a council decides it would be inappropriate for special educational provision to be delivered in any school, it can agree for it to be delivered somewhere else. This is called Education Otherwise than in a School (EOTAS.) (Children and Families Act 2014, Section 61.) The council must arrange and pay for EOTAS. Section I of the Plan is blank where the council has agreed EOTAS.
15. 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 2014). 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)
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
17. 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.
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 the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. 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.
20. The parent must have at least 15 days to comment and make representations on proposed changes including requesting a particular school (SEN Code paragraph 9.195)
21. If the council decide to continue with the amendments, it must issue the final amended EHC Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196)
22. A personal budget (PB) is money a council has identified to deliver provision in an EHC Plan (SEN Code paragraph 9.95).
23. A parent has the right to request a PB during an annual review. (SEN Code paragraph 9.98).
24. The SEP in an EHC Plan can include provision funded from the school’s budget share and more specialist provision funded from the council’s high needs funding. This latter funding is used for PBs. (SEN Code paragraph 9.112)

What happened

25. Z has SEN including emotionally based school avoidance and a communication disorder relating to anxiety. Z was due to transfer to secondary school in September 2023. Her EHC Plan of August 2023 named a mainstream secondary school as her educational placement. The Plan said Y was currently unable to attend on-site provision due to anxiety.
26. Z attended secondary school briefly at the start of the school year in September 2023. Ms X said in her complaint to the Council that Ms Y made a senior officer were aware of Z’s non-attendance at the time and this was due to the failure to secure the SEP in the EHC Plan. The Council accepted this in its complaint response (see paragraph 29)
27. Z’s school called an urgent annual review meeting in November 2023. The Council accepted in its complaint response (see paragraph 29) that it did not complete the annual review after receiving the records from school.
28. In or around May 2024, Ms Y sent the Council a ‘costed provision map.’ This was a request for a personal budget (PB) for an EOTAS package for Z. The map is a spreadsheet with a breakdown of the costs of Y’s proposed education package and included equipment, educational products and horse therapy. The proposed cost was just under £9000 a year.
29. Ms X complained to the Council in May raising the same issues as in her complaint to us. The Council’s stage one response in June said:
• There was a meeting in January 2024. The agreement was school would implement alternative provision for Z. Due to “the lack of availability of key personnel” the Council could not say whether this happened or not, but an email suggests the SEND service believed school was providing alternative provision
• The Council recognised it should have overseen what was being offered to Z while she was not able to attend school
• The Council acted swiftly once made aware Z was not able to access school and an EOTAS package was provided
• The Council had offered home tuition through the outreach service, however, Ms Y did not think this would benefit Z as she was “triggered by anything related to academic work or school”
• The Council has four weeks to issue a decision notice from the date of an annual review. The Council was sorry it failed to provide to do this by 19 December 2023. It was due to staff shortages. The Council was recruiting additional annual review officers and had recruited an annual review manager
• Z’s EHC co-ordinator had gone through her EOTAS request and had asked Ms Y to clarify a few points before presenting the case to the Council’s funding panel.
• The Council offered a payment of £2100 to reflect the educational provision Z had missed.
30. Ms Y was unhappy with the amount offered. She wanted the Council to repay the cost of the private educational package she had arranged (£3400 for horse therapy and education between October 2023 and the end of June 2024) as well as making the payment for missed educational provision it had already offered in the complaint response. The Council offered Ms Y an increased payment of £4500 in relation to missed educational provision plus £1300 to recognise the distress caused by lack of due process.
31. The Council issued an amendment notice in July 2024 (a draft EHC Plan with the changes it was proposing to make.)
32. Ms X complained to us in August.
33. At the end of August, the Council emailed Ms Y saying it had agreed most of the provision on the costed provision map (apart from two relatively minor items)
34. The Council told us Ms Y received the first payment for Z’s EOTAS package in September 2024. Emails from Ms Y indicate she had received the first payment. The Council issued Y’s final amended EHC Plan in November.

Findings

Failure to fund special educational provision in Year 7 meaning Z’s school placement broke down leaving her out of education for the school year.

35. The Council has a duty to secure all the special educational provision on Y’s EHC Plan. On the basis of the evidence set out in the last section, the Council has accepted it was aware Y was not attending school from November 2023 and that it did not make sufficient checks or co-ordinate with school to ensure provision was secured. The Council had a duty to ensure Y was receiving all the SEP in Section F of her EHC Plan. The Council has accepted in its complaint responses that it failed in this duty. This was fault causing a loss of educational provision.
36. Ms Y seeks reimbursement of the cost of the educational package she arranged privately for Z in Year 7 as well as the payment the Council has already agreed to reflect lost provision. We would not recommend both payments as this would be double recovery (remedying the same loss twice). The payment the Council has already agreed to make (£4500) is in line with our guidance on remedies for missed educational provision and the payment of £1300 is higher we would usually recommend to reflect distress caused by the failure to follow legal processes causing a delay in rights of appeal. My provisional view is the payment already offered by the Council is an appropriate financial remedy to reflect the injustice.

Failure to complete the urgent annual review that was called

37. There is no legal right to an early or urgent annual review, however, once a council has agreed one, we expect it to complete the annual review in line with the timescales in the SEND Code of Practice. The Council failed to complete the annual review process which was fault as follows:
• The amendment notice wasn’t issued until July 2024, when it was due in December 2023: a delay of five months.
• An amended final EHC Plan should have been issued within eight weeks of the amendment notice so by February 2024. It wasn’t issued until November: a delay of eight months.
38. The delay is fault causing avoidable uncertainty, frustration and a delay in appeal rights. The payment of £1300 already offered is appropriate to reflect injustice.

Back to top

Final decision

39. We upheld a complaint about a failure to ensure Z received the special educational provision in her Education, Health and Care (EHC) Plan and a delay in completing Z’s annual review. The Council has already apologised, offered payments to reflect the lost provision, avoidable frustration, uncertainty and delay in appeal rights. This is an appropriate remedy.
40. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman