Summary: Mx X complained the Council failed to ensure their child Y received appropriate education and specialist provision in line with their Education, Health and Care Plan. The Council was at fault for the delay in finalising the Education, Health and Care Plan, in arranging provision following the annual review, and in making a refund to Mx X. This caused Mx X frustration and uncertainty and meant Y missed out on education provision. The Council has agreed to apologise and make payments to Mx X and Y.

The complaint

1. Mx X complained the Council has failed to ensure their child Y received appropriate education and specialist provision in line with their Education, Health and Care Plan. Mx X says this has caused them distress and frustration and Y’s education and welfare has suffered.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. 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)
6. 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

7. I spoke to Mx X about the complaint and considered information they provided.
8. I considered the Council’s response to my enquiries and the relevant law and guidance.
9. I gave Mx X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Education, Health and Care plans

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the tribunal or the council can do this.
11. 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).

Annual reviews

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. 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)
14. 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.
15. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

18. This section sets out the key events in this case and is not intended to be a detailed chronology.
19. Y attended a special school and had an EHC Plan which named the school. In July 2023 the Council arranged an EHC Plan emergency review meeting as the school said it could not deliver Y’s provision as Y was not attending. The Council and Y’s parents discussed other provision which could be arranged for Y. This included two hours of tutoring a day. Mx X suggested equine therapy and an additional young leader activity run by a charity.
20. In early August 2023 the Council wrote to Mx X to notify them it was intending to amend Y’s EHC Plan.
21. In late September 2023 Mx X complained to the Council about the lack of support provided by its SEN service and that the family had privately funded equine therapy to support Y which they wanted the Council to continue funding.
22. In October 2023, following further communication with Mx X the Special Educational Needs (SEN) Officer submitted a request for an education otherwise than at school (EOTAS) package. The Council agreed to fund the package but did not agree to pay for the equine therapy. Mx X considered this a crucial part of the package and asked the Council to reconsider. The Council emailed the tuition provider to confirm it had approved 10 hours of tuition a week for Y.
23. In late October 2023 the Council issued Y’s draft EHC Plan. In early November the SEN officer made a referral for work experience for Y.
24. The Council responded to Mx X’s complaint in early November 2023. It said EOTAS was a parental request following the annual review. It said this would consist of 10 hours of tuition, gym membership and work experience. It said it was still considering the request for equine therapy. It acknowledged Y had missed periods of education, but it considered the school a suitable educational provision to meet Y’s needs. It said it was developing a bespoke educational programme prior to further consultations for future education options. It accepted delay and fault in not issuing the amended final EHC Plan in line with the statutory timescales and apologised for this. Mx X says EOTAS was not parental choice but was because there were no other options available locally.
25. Y’s tuition started in early December 2023.
26. In late December 2023 Mx X asked to go to the next stage of the Council’s complaints procedures. Mx X raised concerns about the delay in tutoring starting and that this did not include science, the delay in re-writing the EHC Plan, that Y was not referred to the medical needs panel (who look to support those who cannot attend school for health reasons) which Mx x said they had requested when the EHC Plan assessment process started and the Council had not funded equine therapy.
27. In January 2024 the Council agreed Y should receive a package of education otherwise than at school (EOTAS).
28. In February 2024 the Council approved the request for equine therapy and later that month Y started work experience.
29. The Council responded to Mx X at stage two of its complaints procedure later that month. It apologised that the tutoring had started late. It said:
• it had made a referral to the tutoring company promptly, but the company negotiated start times with the family which delayed its start.
• science would be included as part of the tutoring.
• there was a missed opportunity to refer Y to its medical needs panel which offered 12 weeks of support for those on a school roll but not attending. As Y was no longer on a school roll this could no longer be accessed.
• the EHC Plan would be amended to reflect the EOTAS provision.
• it agreed to fund and backdate the equine therapy.
30. Mx X provided the Council with feedback on the draft EHC Plan in March 2024. They requested increased hours of provision for Y. The Council responded that earlier in the year the parents had said that 10 hours of tuition plus equine therapy and work experience was too much for Y so it considered 25 hours would be a stretch at this time. The Council responded to the points raised and finalised the Plan in April 2024 providing Mx X with a right of appeal to the SEND tribunal.
31. Mx X has yet to receive a refund for the equine therapy Y received.

Findings

32. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council held an emergency review meeting in July 2023 due to Y’s poor attendance at school. It issued a letter advising Mx X it intended to amend Y’s plan, within the four weeks expected by the law. The Council should have then issued Y’s final amended EHC Plan within eight weeks, so by September 2023. It did not issue the final Plan until April 2024. This delay of seven months was fault. This caused Mx X frustration and uncertainty over Y’s provision.
33. From April 2024 Mx X had a right to appeal to Tribunal if they were not satisfied with the content of the Plan or the decision for Y to receive EOTAS. It was open to them to use that right.
34. In February 2024, in response to Mx X’s complaint, the Council agreed to fund and backdate Y’s equine therapy. The Council, to date, has yet to provide Mx X with the refund. This delay is fault and has added to Mx X’s frustration.
35. The Council, in its complaint response also accepted it was at fault for not considering referring Y to its medical needs panel when Y was missing school. This added to Mx X’s frustration and caused uncertainty over whether Y could have received additional support sooner.
36. From early December 2023 the Council arranged EOTAS for Y in line with what was set out in the final amended EHC Plan. However, Y received no education or specialist provision between September 2023 and December 2023, when the EOTAS started. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In deciding on a figure, we consider factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Lost or delayed right of appeal to tribunal
37. I have taken account of these factors and consider a payment of £1500 would be appropriate.
38. In another complaint we investigated in late 2023, we found a similar delay in completing annual reviews. We asked the Council to issue a reminder to staff to adhere to the timescales for annual reviews, which it did earlier this year. Given the timescale overlaps with the timescale for this complaint I do not consider further action is required at this time.

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Agreed action

39. Within one month of the final decision the Council has agreed to:
1. Apologise to Mx X and pay them £250 to acknowledge the frustration and uncertainty caused by the faults identified.
2. Apologise to Y and pay them £1,500 in recognition of the missed provision between September and December 2023 and the uncertainty caused by the failure to refer them to the medical needs panel.
3. Refund Mx X the payments made for Equine Therapy to support Y.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman