Summary: Ms C complained about the Council’s handling of the Education, Health, and Care plan process for her son (X) and his education when he stopped attending school. We found the Council at fault for failing to adhere to the statutory timescales, a delay in providing alternative provision for X, some poor communication, and failing to provide her with her appeal rights. In addition to the Council’s apology, it will make payment to Ms C to acknowledge the injustice this caused her and X.

The complaint

1. The complainant, Ms C, complained about the Council’s handling of her son’s (X) education. She said it:
• failed to complete X’s Education, Health, and Care (EHC) plan within statutory timescales following annual reviews in November 2023 and May 2024. She said as a result he has been unable to receive the education and SEN provision he was entitled to;
• caused delay in providing X with educational provision when he was unable to attend school from January 2024, including his special educational needs provision. She also said when it did put provision in place this was not full-time;
• wrongly refused to complete an EHC needs reassessments for X when she requested it; and
• failed to respond to some of her requests and communication.
2. Ms C said, as a result, she and X experienced distress, and X had a loss of education.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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.
7. 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

8. I have investigated Ms C’s complaints about the Council’s handling of X’s education from November 2023, when an annual review of his EHC plan took place, until July 2024 when it provided its final complaint response.
9. I have not investigated Ms C’s complaints relating to:
• her EHC needs reassessment request for X in Spring 2023, as a final amended EHC plan was issued in July 2023 which carried appeal rights; and
• her concerns about the Council’s handling of X’s education after July 2024. This is because the Council had issued its final complaint response, and new issues were occurring which had not been part of its initial investigation. Ms C has since brought a new complaint to the Council regarding this part of her complaint.

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How I considered this complaint

10. As part of my investigation, I have:
• considered Ms C’s complaint and the Council’s responses;
• discussed the complaint with Ms C and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law and guidance to the complaint.
11. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

Education, Health, and Care (EHC) plans

13. A child or young person with special educational needs may have an 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.

Reassessments

14. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• 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 tribunal.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

Annual reviews

15. 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.
16. 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)
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
18. 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.
19. There is a right of appeal to the Tribunal against:
• 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.

Alternative Provision

20. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. 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’)

What happened

24. Ms C’s son, X, is of compulsory school age and has been diagnosed with health conditions which impacts his ability to receive an education. He has an EHC plan which sets out his special educational needs and the support he should receive.
25. In July 2023 the Council issued a final amended EHC plan for X which listed the school he should attend.
26. X attended his allocated School from September 2023.
27. In November 2023 an annual review of X’s EHC plan was held. This shows the new school placement was working well and X felt supported. However, due to some unrelated health issues, he was not fully attending. Ms C made requests for some changes to the provision and asked for X to be reassessed.
28. In early 2024 X’s attendance at school reduced and he stopped attending fully in February 2024. This was partly due to new health issues. Ms C asked the Council to provide X with an education.
29. The Council says X’s school tried to work with X and Ms C to provide some education for X in line with is Emotionally Based School Avoidance Guidance. The school offered Ms C a visit and to send staff members to X’s home until the end of the Spring term.
30. Ms C asked the Council for an emergency annual review in March 2024. She said:
• X was not attending education despite the school’s efforts due to reasons which was different to the needs set out in his EHC plan. She said tuition should be provided;
• X needed a reassessment of his needs as he had not had a comprehensive assessment for several years, including by an educational psychologist;
• no updated final amended EHC plan had been completed for X since the November 2023 annual review. This also impacted X’s school consultations for September 2024 which was yet to take place.
31. Three weeks later, when Ms C had not received a response, she complained to the Council.
32. The Council accepted it had caused delays and apologised. This included:
• delays in responding to her requests and communication. It explained there were pressures on its service, its allocated officer was unexpectedly absent, and it struggled to reallocate X’s case due to staff shortages;
• delays in amending X’s EHC plan following the annual review. It explained it had a backlog but would amend the plan within the next few weeks. It also confirmed it would use X’s existing EHC plan to consult schools for September 2024; and
• it had asked the school to provide tuition for X, but there had been a delay due to the Easter break.
33. However, the Council did not agree a reassessment of X’s needs were necessary as he had been assessed by professionals less than two years ago.
34. The Council spoke met with Ms C in May 2024 and arranged an emergency annual review of X’s EHC plan. The review found the Council should find a suitable school placement for X. In the meantime, it should arrange online learning for X, social group learning opportunities to reduce isolation, tuition, and consider a mentor for X. It found X could not manage a full-time education at the time so provision should be a small number of hours initially and gradually increase.
35. In June 2024 the Council shared a further complaint response with Ms C. It said it was considering her comments and intended to share a draft amended EHC plan soon, but tuition for X had started. It again explained its reasons for the delays caused and apologised. It did not find a reassessment of X was necessary as he had been assessed within the last two years and it was aware he was awaiting health assessments.
36. In July 2024 the Council sent a further response to Ms C. At this time, it agreed X should be reassessed and explained this would take six weeks. It said it would provide the agreed provision, but any further requests or amendments to provision would be on hold until the assessment had taken place.
37. Ms C and the Council has continued to be in communication since. This has included a mediation meeting and a draft amended EHC plan being issued in August 2024. X’s final amended EHC plan was issued in October 2024.

Analysis and findings

Delay in the EHC plan process for X and Ms C’s reassessment requests

38. The Council agreed it caused delays in the EHC plan process for X following the annual review in November 2023. While I acknowledge this was partly due to staff shortages, staff absences, and a delay in receiving the review paperwork from the school, it was the Council’s responsibility to adhere to the statutory timescales for the process.
39. The evidence shows the Council did not issue Ms C with a final amended EHC plan for X until October 2024, which was eight months later than required. During this period, the Council agreed to complete an emergency review for X where it again agreed to amend his EHC plan. It subsequently also agreed to complete an EHC needs reassessment of X, which was started in Autumn 2024.
40. The Council’s delays in completing the EHC plan process for X following its annual reviews and its reassessment was fault.
41. It was also at fault for failing to issue Ms C with decisions setting out her appeal rights in late 2023 and Spring 2024 regarding its refusal to conduct a reassessment for X. I also note the reasons for its refusals were flawed as it said this was because X had been assessed by professionals within the last two years, which is neither law nor guidance.
42. I found the Council’s faults caused Ms C distress and a loss of opportunity to exercise her appeal rights. In addition to its apology, I have therefore found a symbolic payment is appropriate. I cannot say whether the Council’s delays caused X an injustice. This is because I cannot say what provision would have been in X’s EHC plan but for the faults.

X’s education and alternative provision

43. The evidence shows X attendance reduced in January 2024, and he stopped attending fully a month later. Ms C informed the Council. At that time, I would expect the Council to properly consider its alternative provision duty towards X and decide whether to put in place educational provision.
44. The Council initially asked to school to work with Ms C in an attempt to get X to re-engage with his school or receive support at home, which the school made efforts to do. I found, up to the Easter half term, the Council acted appropriately an in line with its Emotionally Based School Avoidance Guidance. While I understand the attempts to re-engage X and provide him with some education did not succeed, it was not fault by the Council for allowing this to be tried for a short period.
45. However, following the Easter half term, alternative provision should have been put in place for X. This is because it was clear to the school and the Council at the time that the attempts and suggestions, which had been offered, did not result in X being able to engage with the education available to him. This was therefore fault, which caused X a loss of educational provision.
46. Following Ms C’s complaint, the Council has introduced a new process to identify children who are out of education sooner. This is to ensure such delays do not happen again. I have therefore not recommended any service improvements on this point.
47. The Council put in place some tuition for X from early June 2024 and started consulting with schools. It considered how much out of school provision X should receive based on his difficulties in engaging with his education and found this should be gradually increased. I acknowledge Ms C feels the amount of tuition provided was not enough and X could not engage with parts of the provision as it was online. However, I found the provision the Council initially put in place for X was appropriately considered between June to July 2024. It also refunded Ms C the cost for some equipment and online learning for X. His lack of full-time education for this period was therefore not due to fault by the Council.
48. I understand Ms C believes the Council was wrong not to amend the provision offered to X in Summer 2024 following her requests. However, as a reassessment was agreed and arrangements for this was being made, it was not fault by the Council to put any changes to provision on hold until the reassessment has been completed.
49. Ms C has complained to the Council about its provision of an education for X from July 2024 onwards. This is a new matter and relates to provision after it agreed to reassess X. This has therefore not been considered in my investigation.

Council’s communication with Ms C

50. The Council accepted its communication and responses to Ms C’s requests were poor at times due to its staff shortages and absences. However, once an officer was allocated to X’s case it worked with her to consider her requests and put educational provision in place for X.
51. I agree there was some fault in the Council’s communication due to the lack of timely responses and action between the annual review in November 2023 and May 2024. This caused Ms C some further distress and uncertainty.

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Agreed action

52. To remedy the injustice the Council caused to Ms C and X, the Council should, within one month of the final decision:
1. pay Ms C £300 to acknowledge the distress and uncertainty the Council’s faults caused her, including her delayed opportunity to exercise her appeal rights to the SEND tribunal;
2. pay Ms C £1,200, to use as she sees fit for the benefit of X, to acknowledge the loss of education X experienced as a result of its delay in providing him with alternative educational provision;

In total the Council should pay Ms C F £1,500.

53. Within three months of the final decision the Council should also:
1.  
2.  
3. remind its SEND staff of the Council’s duty to ensure it issues decisions which always sets out appeal rights to parents and young people. This includes when requests for Education, Health, and Care needs assessment or reassessments are received, and a decision has been made.
4. review the current staffing levels within its special educational needs team and how it allocates cases. This is to ensure it has sufficient staff available to respond to and action Education, Health, and Care plan assessments and annual reviews within the statutory timescales, including when existing staff leaves or are unexpectedly absent.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation with a finding of some fault by the Council which caused Ms C and X an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman