The Ombudsman's final decision
Summary: Miss X complained the Council placed her child on a reduced timetable in mainstream education since September 2020. Miss X also complained the Council failed to complete the annual review of her child’s Education Health and Care Plan in the statutory timescales. We found fault with the Council failing to keep Miss X’s child’s reduced timetable under review and for delays in reviewing the Education Health and Care Plan outside the statutory timescales. The Council agreed to apologise to Miss X and pay her £1,050 for her child’s potential lost education and £500 for the avoidable distress and frustration caused.
The complaint
Miss X complained the Council placed her child on a reduced timetable of 7 and a half-hours each week in mainstream education since September 2020. Miss X says her child was on a waiting list for specialist provision since February 2021.
Miss X says the Council held an annual review meeting of her child’s Education Health and Care (EHC) Plan on 3 November 2022, but took until 2 May 2023 to issue the final EHC Plan.
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) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) 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) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
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)
What I have and have not investigated I have investigated Miss X’s complaint about the Council’s failure to provide suitable education from 12 July 2022 to 2 May 2023.
I have not investigated issues about the education provided to Miss X’s child before 12 July 2022. This is because Miss X only complained to the Ombudsman about the suitability of her child’s education on 12 July 2023. Miss X had not raised this issue with the Council before, so the Ombudsman asked the Council to address this complaint first. The Ombudsman cannot investigate matters brought to our attention about issues more than 12 months prior without good reason. There is no good reason Miss X could not have complained about the suitability of her child’s education sooner.
Miss X prior complaints all related to the failure of the Council to adhere to the statutory timescales in reviewing her child’s EHC Plan; we have investigated this complaint further back than July 2022.
I have not investigated issues about the suitability of Miss X’s child’s education since 3 May 2023. This is because the Council issued a Final EHC Plan for her child on 3 May 2023. Miss X gained an appeal right to the Special Education Needs and Disability (SEND) Tribunal. Miss X used her right to appeal to the SEND Tribunal on 9 May 2023 to appeal Sections B, F and I of the EHC Plan.
Since Miss X has used her appeal rights to the SEND Tribunal, the Ombudsman cannot investigate Miss X’s complaint. By law, the Ombudsman cannot consider matters which have been subject to appeal, or where the decision and consequence of the outcome of the appeal are inextricably related to the same matter. This restriction starts from the point at which Miss X gained her appeal right and ends at the conclusion of the appeal process, on 7 November 2023.
Miss X’s appeal to the tribunal was specifically about the suitability of both her child’s educational placement and the Section F provision. Since the outcome of Miss X’s appeal to the tribunal directly impacted on Miss X’s child’s access to education and how this should be provided, this matter is outside the jurisdiction of the Ombudsman.
I have also not investigated any matters since 7 November 2023. This is because the Council issued its Stage 2 complaint response on 15 November 2023, a week after the Tribunal’s decision. The Ombudsman must give a council opportunity to address a matter before investigating ourselves. The Council had limited to no opportunity to carry out the outcome of the Tribunal’s decision before it issued its Stage 2 complaint response. It would be disproportionate to investigate the period from 7 November 2023 to 15 November 2023 given the limits on the Ombudsman’s jurisdiction. Should Miss X wish to complain about the Council’s action, or inaction, since 7 November 2023, she may do so under a separate complaint to the Council first.
How I considered this complaint
I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Both Miss X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
Rules and regulations EHC Plans A child with special educational needs may have an EHC Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014) Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014) The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final 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. (s22 (3) & (4) SEND Regulations 2014) In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.
Education for children 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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)) We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Out of school, out of sight? published July 2022 We made six recommendations. Councils should: consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions; choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision; keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
What happened In September 2020, Miss X’s child, who I shall refer to as Y, started to receive a part-time timetable at a mainstream school. Y was receiving seven and a half hours of education each week.
The Council issued a Final EHC Plan for Y on 7 July 2021. This EHC Plan named a state funded mainstream primary school as Y’s educational placement in Section I. This EHC Plan also detailed the educational provision Y needed in Section F. The EHC Plan said the teachers at Y’s school should provide most of Y’s Section F provision.
From July 2021 to February 2022, the Council and Miss X liaised about the educational placement for Y. The Council suggested a particular Special Educational Needs (SEN) school, School 1, while Miss X wanted a different SEN school, School 2.
In February 2022, the Council held an annual review meeting for Y’s EHC Plan. The Council reviewed Y’s current situation and confirmed Y was receiving the support detailed in Section F of the EHC Plan including one-to-one teaching assistant support. The Council sent a letter to Miss X on 11 February 2022 confirming its decision to amend Y’s EHC Plan. The Council did not issue an amended EHC Plan following this notification.
On 14 October 2022, a Special Advisory Teacher visited Y in school to assess the current situation. The Special Advisory Teacher confirmed Y had access to provisions detailed in the EHC Plan. They also confirmed Y was on a reduced timetable.
The Special Advisory Teacher also spoke with Miss X and fed back her findings to the Council.
The Council continued to liaise with Miss X about school placements for Y. On 3 November 2022, the Council held an urgent annual review meeting for Y. Later in November 2022, Miss X said she now wanted a place at School 1 for Y and for this to be named on Y’s EHC Plan. The Council told Miss X there was now a waiting list for School 1 and offered a place at a different school, School 3. Miss X declined School 3.
On 28 November 2022, the Council spoke with Miss X about Y’s current education. Miss X confirmed she was happy with the reduced timetable and level of support provided for Y while she waited on a placement for School 1.
On 10 February 2023, Miss X raised a formal complaint with the Council. Miss X said she had been trying to contact the Council’s SEN team since November 2022 about completion of Y’s EHC Plan annual review. Miss X reiterated her request for the Council to name School 1 on the EHC Plan.
The Council issued a complaint response on 20 March 2023 and apologised for the difficulties in contacting its SEN team. The Council said it had offered a place at a different school, School 3, but agreed to keep Y on a waiting list for School 2. The Council also issued a notification letter to amend Y’s EHC Plan on this date following on from the 3 November 2022 annual review meeting.
Miss X raised a new complaint with the Council on 29 March 2023. Miss X complained the Council had failed to issue a Final EHC Plan despite the annual review in November 2022.
On 21 April 2023, the Council sent Miss X its Stage 1 complaint response. The Council apologised for failing to issue a notification letter following the annual review meeting on 3 November 2022. The Council also accepted it had failed to adhere to the statutory timescales for reviewing Y’s EHC Plan. The Council said it would produce the Final EHC Plan by 28 April 2023.
On 3 May 2023, the Council issued a Final EHC Plan for Y naming Y’s current mainstream school as the educational setting in Section I.
Miss X appealed the EHC Plan to the SEND Tribunal on 9 May 2023. Miss X appealed Sections B, F and I. Specifically, Miss X appealed the school setting and the environment and expertise in which the Section F was provided for Y. When Miss X lodged her appeal with the SEND Tribunal she complained about Y being on a reduced timetable and the suitability of this school setting.
On 12 July 2023, Miss X complained to the Ombudsman about Y being on a reduced timetable since September 2020. We asked the Council to investigate Miss X’s complaint.
The Council issued a Stage 1 complaint response on 27 September 2023. The Council said it upheld Miss X’s complaint about it failing to keep Y’s reduced timetable under review. The Council promised to contact the school to discuss what action it could take to increase Y’s education while Y remained on the waiting list for School 1.
Miss X sought consideration of her complaint at Stage 2 of the Council’s complaints process.
On 7 November 2023, the SEND Tribunal issued a Consent Notice to conclude the appeal without a hearing since the Council agreed to amend Section I of Y’s EHC Plan.
On 15 November 2023, the Council issued its Stage 2 complaint response. The Council said it upheld Miss X’s complaint that it failed to provide full-time education for Y and maintained its response from the Stage 1 complaint response. The Council said following the Tribunal’s decision, it would arrange to name a new school in Y’s EHC Plan and arrange contact with this school for Y’s transition.
The Council issued a revised Final EHC Plan for Y on 11 December 2023 naming an SEN school for Y in Section I.
Analysis – EHC Plan reviews The Council issued a Final EHC Plan for Y on 7 July 2021. The Council should have completed an annual review of this EHC Plan by 7 July 2022. The annual review is completed when the Council holds an annual review meeting and issues a notification to maintain, cease or amend an EHC Plan.
The Council held an annual review meeting for Y in February 2022 and issued a notification to amend Y’s EHC Plan. The Council acted correctly and within the appropriate timescales for completing this annual review meeting at this time. However, the Council did not issue an amended Final EHC Plan following this notification; this was fault.
As a result of failing to complete the annual review process, the Council held an urgent annual review meeting for Y on 3 November 2022. The Council held this meeting 17 and a half weeks after the deadline to complete the full annual review process by 7 July 2022.
Following this second annual review, the Council issued the notification to amend letter on 20 March 2023. The Council delayed in issuing this notification to amend letter, this was fault.
The Council had 12-weeks to issue an amended Final EHC Plan following the annual review meeting on 3 November 2022. This allowed the Council up to 1 February 2023 to issue the Final EHC Plan. The Council failed to issue the Final EHC Plan until 3 May 2023. This caused a further 12 and a half week delay outside the statutory timescales.
Since 7 July 2021, the Council has delayed for 30 weeks outside the statutory timescales in reviewing Y’s EHC Plan. This delay is fault causing Miss X uncertainty and frustration and preventing her exercising her right to appeal to the SEND Tribunal. The council should apologise to Miss X and pay her £500 in recognition of the avoidable distress and frustration caused through its fault causing delays of nearly seven months.
The Council has already committed to addressing the issues with its Special Educational Needs and Disability services. It’s priority action plan produced in December 2023 outlined how it would improve timeliness of its annual review process. The Council has shown it has already taken steps to completing this goal through recruitment of additional personnel and additional investment in the service. As the Council is aware of the issues and is taking suitable steps to address, I do not consider further service improvement recommendations are needed.
Analysis – EHC Plan provision The Council has a duty to provide any provision detailed in Section F of a child’s EHC Plan. The Council had a duty to provide all Section F provision from the 12 July 2021 EHC Plan through to 3 May 2023 when it produced Y’s new EHC Plan.
As explained in paragraph 9, I am not investigating issues about provision of Y’s education before July 2022. Since July 2022, the Council has provided evidence it has put in place the provision detailed in Section F of Y’s EHC Plan through Y’s mainstream school. This is supported by the notes from the annual reviews and the Special Advisory Teacher. Y’s school also provided one to one teaching assistance as support for Y to help facilitate providing the Section F provision.
Since Y’s school, on behalf of the Council, provided Y with the Section F provision detailed in the July 2021 EHC Plan through to 3 May 2023, I do not find fault with the Council.
Analysis – Providing education A council has a duty to arrange suitable education for a child. While suitable education is usually considered full-time, this is not always the case for all children. In September 2020, Y’s education was reduced to a part-time timetable. As explained in paragraph 9, I am not investigating issues about provision of Y’s education before July 2022 so will not investigate the decision to introduce this reduced timetable for Y.
The Council had a duty to keep Y’s reduced timetable under review with the view to increasing this as Y’s capacity increased. The Council should have ensured that Y’s access to education was suitable to Y’s ability and aptitude with the view to increasing Y’s education over time. The Council also had a duty to plan how to integrate Y back into full-time education.
The Council has shown it kept Y’s reduced timetable under review before July 2022 with the last notes in February 2022 as part of the annual review meeting. Similarly, the Council has shown its plan to try to move Y to an SEN school through trying to arrange for Y to attend School 1 up to July 2022.
As of July 2022, the Council had a plan to find a suitable school placement for Y. The Council had decided a particular school while Miss X wanted a different school causing difficulties in arranging transition to a suitable placement. The Council had also kept Y’s reduced timetable under review. I do not find fault with the Council’s plans for Y in July 2022.
By October 2022, the Council had arranged for a Special Advisory Teacher to assess Y’s education, including the reduced timetable. The Council considered the reduced timetable as part of the urgent annual review and spoke with Miss X about the reduced timetable. Miss X confirmed her acceptance of the reduced timetable in its current format until a suitable school placement could be found.
The Council kept Y’s reduced timetable under review in the Autumn term of the academic year 2022/2023 and confirmed the suitability of this timetable with Miss X. I do not find fault with the Council.
It was only in November 2022 that Miss X accepted a place at School 1 for Y. However, School 1 had no available places by this date so the Council could not move Y to this school. The Council offered a different school but Miss X asked to placed on the waiting list for School 1 instead. I cannot find the Council at fault for this.
While the Council continued to offer a place at School 3 for Y in the spring term of 2022/2023, the Council did not keep Y’s reduced timetable under review. The Council did not review the suitability of Y’s education at any point during the spring term of 2022/2023 or before production of the Final EHC Plan on 3 May 2023. This was fault. The Council has also accepted this fault within its complaint responses to Miss X.
The failure to keep Y’s reduced timetable under review meant Y may not have been receiving suitable education for their needs. This meant Y could have lost out on suitable educational provision for one term and two weeks caused by the fault of the Council.
Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
Given the circumstances of Y’s complaint, any potential loss of educational provision is minimal. This is because Miss X confirmed she considered the reduced timetable suitable in November 2022 and Y continued to receive this education from January 2023 to 3 May 2023. However, Y has still missed the opportunity for having this education increased. I consider an award of £900 per term suitable for Y’s potential lost education, totalling £1,050 for the one term and two weeks of fault by the Council.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Apologise to Miss X for the delays in reviewing her child’s EHC Plan and failure to complete suitable reviews of her child’s part-time educational timetable.
Pay Miss X £500 for the avoidable distress and frustration caused through its delays which also delayed her right to appeal to the SEND Tribunal.
Pay Miss X £1,050 for the Council’s failure to keep her child’s part-time educational timetable under and the potential lost education this caused.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman