The Ombudsman's final decision
Summary: Miss X complains the Council has not properly dealt with Y’s special educational needs. The Council has not completed annual reviews properly, has not communicated with Miss X and did not respond to her complaint. Y has lost special educational provision, missed educational opportunities and suffered avoidable distress. The Council has agreed to, in addition to its proposed remedy, pay Y £2,400 for the loss of educational provision.
The complaint
The complainant, whom I shall refer to as Miss X, complains that the Council has not properly dealt with Y’s Special Educational Needs (SEN) because it has failed to: communicate with her since November 2021; arrange and hold annual reviews to Y’s EHCP as required; consider whether/how his SEN have changed since November 2021; and deal with her complaint about this.
Miss X says Y has lost educational opportunities, missed SEN provision and suffered avoidable distress.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
How I considered this complaint
I spoke to Miss X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
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.
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) 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.
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.
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) 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.
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.
If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.
What happened?
This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
In November 2021 Y was attending an educational course and had an EHC Plan.
In August 2023 the Council began to arrange an annual review of Y’s EHC Plan with the educational provider. There were delays as a result of staff being unable to attend the annual review.
Analysis The Council accepts that it is at fault because: It did not respond to Miss X’s request for information in April 2022; Y should have received an Annual Review of his EHC Plan in 2022; It was unable to consider whether Y’s pathway and options once he had completed his course; and It was unaware that Y had started a subsequent college course; and It did not respond to her complaint.
This is fault by the Council. Y should have received an annual review of his EHC Plan which would have enabled the Council to know his future educational pathways and ensure that provision was made for him. Y did not receive any special educational needs provision at his subsequent college course. On the balance of probabilities this contributed to him being unable to continue his placement there. Y missed special educational provision which contributed to lost educational provision through loss of his college course and he suffered avoidable distress.
I have considered the Ombudsman’s Guidance on Remedies, which states, “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. The figure should be based on the impact on the child and take account of 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.
Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
Lost or delayed right of appeal to tribunal.
In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT. The level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child or young person.”
What the Council says it has done To remedy the faults identified, the Council proposes to: Make a decision following Y’s annual review based on the current information no later than 23.02.2024; If the decision is to amend his EHC Plan, the Council will send a draft amended EHC Plan (Notice of Amendment) to Y and Miss X no later than 23.02.2024, with the final amended EHC Plan being issued within 8 weeks of the draft (19.04.2024); The Council will reconsult with Y’s College. Y will also be provided with the opportunity to express a preference for a different placement (should he wish to) and the Council will consult with any other settings identified; Apologise to Miss X and make a payment of £250 for the time and trouble Miss X experienced in the Council not considering her complaint in April 2023 appropriately; and Apologise to Y and Miss X and make a payment of £250 for any distress caused by the failure of the Council to ensure his EHC Plan was reviewed at least every 12 months.
The Council says, “its SEN departments are currently on an improvement journey, overseen by the DfE Commissioner. As part of this improvement journey, the Council has established working groups to review, improve and embed policies, procedures and good practice across the service in line with its legal obligations. Through these groups, the Council has produced Standard Operating Procedures and we enclose the Annual Review procedure which was implemented from October 2023. The Council is confident that the faults identified in this complaint will be prevented from happening again due to the improved procedures and practices across the SEND teams.”
I do not agree that the Council’s proposals are an appropriate personal remedy in respect of Miss X and Y.
I have seen the practitioner guidance and action plans for the Council’s services in relation to annual reviews of EHC Plans. I consider this is an appropriate partial remedy in respect of service improvements.
Agreed action
To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action, in addition to its proposed action above in paragraph 24, within 4 weeks of this decision: Pay Y £2,400 for the loss of two terms educational provision.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault by the Council, which caused injustice to Miss X and Y. I have now completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman