The Ombudsman's final decision
Summary: Mr K complains about the lack of annual reviews of his son’s Education, Health and Care Plan. And that the Council did not ensure the provision was in place in a period after his son’s placement broke down. We uphold the complaint. The Council has agreed to our recommended remedy for missed provision for the year before Mr K complained to the Ombudsman.
The complaint
My summary of this complaint is that Mr K complains: the Council did not update his son X’s Education, Health and Care (EHC) Plan for several years, despite him being educated at home; the Council did not ensure X received the provision set out in the plan when he was being educated at home; in October 2022, he and his wife (Mrs K) began to seek an annual review. They contacted X’s SEND caseworker, but did not receive a satisfactory response; they ended up carrying their own review, with the aid of the multidisciplinary team. But the Council sought to undermine this review.
Mr K says the effect of these issues are: the Council delayed giving them a chance to appeal; X has missed provision that would have been added to the EHC Plan if they had had reviews; the uncertainty has meant they have not been able to recruit new teaching assistants, as the purchase order has not been extended due to the lack of review. So they cannot guarantee twelve months’ employment to a potential new employee.
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 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) 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) 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) 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.
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 Mr K complained to the Ombudsman in October 2023, which means any issues from before October 2022 are late (see paragraph 4). I have not investigated earlier events as Mr K could have complained about them earlier and there is not enough reason to accept those parts for investigation now. In arriving at that view I note Mr and Mrs K were aware of the Ombudsman, as they have made several earlier complaints to us.
Where a parent has appealed to the SEND Tribunal against the content of an EHC Plan, the Ombudsman has no jurisdiction. This begins from the date the appeal right arises until the appeal process is completed. This includes any complaint about issues related to education out of school.
In this complaint the Council had not issued the EHC Plan. But Mr K appealed to the SEND Tribunal in July. Once the Tribunal issued an order, at the end of September, it gave permission for the appeal to proceed. This validated Mr K’s application for an appeal. So I have used the latter date as the date from which the Ombudsman has no discretion and cannot investigate the complaint.
This leaves the period from October 2022 to the end of September 2023, which is the period I have considered.
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Mr K; made enquiries of the Council and considered its response; spoken to Mr K; considered the decision of the SEND Tribunal; sent my draft decision to Mr K and the Council and considered their responses.
What I found
Legal and administrative background 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 Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN) . The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code) which contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
An 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 SEND Tribunal or the council can do this.
Councils are the lead agency for carrying out assessments for EHC Plans and have the non-delegable statutory duty to secure special educational provision in an EHC Plan. (Children and Families Act 2014, Section 42) Reviewing EHC Plans A council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. 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) What happened
Background
X was born in 2012. He has an autism spectrum condition and since 2015 he has had an EHC Plan. He has a brother who also has special educational needs. Mr K and Mrs K have their own disabilities.
X started school in 2016, but changed school in 2018. In early 2019 that placement broke down. Since then X has been educated at home.
After X’s placement broke down, an educational psychologist carried out an assessment and recommended a package of home schooling. In November 2019 the Council agreed a package of education for X at home. The Council provided Mr K with a personal budget to purchase the educational provision.
The Council says it reviewed X’s EHC Plan in 2020 but it was not updated, due to COVID-19 and a restructure of its SEND team.
In March 2021 the Council carried out a review of X’s EHC Plan. In May the Council’s SEND manager emailed Mr K and his wife to advise the Council would be amending his EHC Plan to reflect changes in his educational package.
The Councils says in November 2021 it discussed X’s annual review with his parents at a decision-making panel. Mr and Mrs K suggested amendments. It says it has no record of a decision following this review.
The 2023 review Mr K says they asked the Council’s officer for a review in October 2022 and chased this in November. The Council says it has no record of this contact.
In November an educational psychologist carried out an assessment. Mr K says this was paid from the personal budget for X’s education out of school. The psychologist produced her report in December 2022 In April 2023 Mr and Mrs K decided to carry out their own review of X’s EHC Plan. Mr K says they decided to do this after the Council reviewed X’s brother’s EHC Plan, but not X’s. Mr and Mrs K involved an officer from the Council’s Children and Families Team. They also invited the Council’s (new) SEND Keyworker. That officer advised she could not attend the meeting, but advised she would like to book a meeting to carry out an annual review of X’s EHC Plan. She suggested some dates. Mr K says the Keyworker had agreed that they carry out the review.
The record of Mr and Mrs K’s ‘review’ of X’s EHC Plan notes: Mr K was clear he wanted a placement for X, but there were few schools that could meet X’s specific needs; the last review of X’s EHC Plan was in 2018; contrary to what the Council said, Mr and Mrs K were not “home-schooling” X by choice.
In May the Council advised Mr K it was intending to carry out a review of X’s EHC Plan. It noted X’s old Keyworker had left the Council’s service. So it asked them to bring along to the review meeting details of the education out of school package the Council had agreed.
Mr and Mrs K sent the Council a copy of the review they had completed. In July, X’s new Keyworker contacted Mr and Mrs K offering new dates for a review.
Later in July, Mr and Mrs K appealed to the SEND Tribunal.
Mr and Mrs K complained. The Council’s August response, at the first stage of its complaint procedure, noted an ongoing appeal. It accepted the Council had not reviewed X’s EHC Plan since it was issued and “…this clearly needs to be resolved as soon as possible”. It also: offered Mr and Mrs K dates for a EHC Plan review meeting; noted a transition to a new SEND Keyworker and advised it would seek to ensure continuity during the process; accepted that payment of some of their personal budget invoices were “…not as timely as they could have been, largely due to staff changes”. It noted action it had taken to resolve this issue.
The review meeting of X’s EHC Plan took place at the end of August. The Council advised Mr and Mrs K they wanted to commission an assessment from its own Educational Psychologist. Mr and Mrs K noted the earlier educational psychologist assessment, from the end of 2022, so questioned whether a new assessment was needed.
In September, Mr and Mrs K escalated their complaint. The Council’s October response, at the second stage of its complaints procedure, said it would not look at issues related to the contents of X’s EHC Plan. That was because of their right of appeal and because the Council was due to issue the final Plan.
At the end of September a SEND Tribunal Judge admitted and registered Mr and Mrs K’s appeal, on the grounds it was “fair and just” to do so. This was despite the Council not having then issued an amended EHC Plan following an annual review. The Judge said: “I construe from the [Council’s] failure to respond to the parent that they had effectively decided not to amend the EHCP…”.
After further internal discussion about the need for new assessments, in October the Council issued a draft EHC Plan. It finalised the Plan in November 2023.
Mr K’s complaint to the Ombudsman Mr K first complained to the Ombudsman in October 2023. I made enquiries. The Council’s response noted the following.
It had not amended X’s EHC Plan to reflect his change of status to education other than in school. So the provision in X’s substantive plan did not accurately reflect the provision he needed.
Any provision in an EHC Plan was only guaranteed until the next annual review. It was always possible that a review could be called within twelve months. So it was not possible to guarantee a twelve-month contract for a teaching assistant.
The reasons for the delay in the review were due to X’s Keyworker leaving the service. And also that the Keyworker was actively attempting to arrange an Annual Review from April 2023.
The Tribunal hearing The appeal to the SEND Tribunal continued. The appeal hearing was in May 2024. It noted: that, by the time of the hearing, the Council and Mr and Mrs K had agreed on a placement for X starting from September 2024; it had been asked to decide whether X needed special educational provision beyond the normal school day; the findings of educational psychologists from November 2021, December 2022 (which noted X had learning needs across his day) and May 2024; other evidence from a clinical psychologist, occupational therapist, speech and language therapist and both independent and Council social workers; noted points of agreement between the December 2022 and May 2024 educational psychologist reports.
The SEND Tribunal’s decision says it gave the most weight to the evidence of the psychologist who had carried out the December 2022 assessment.
The Tribunal concluded X needed an extended hours curriculum. It said X should have an educational package delivered from 7 am to 10 pm, for seven days a week, delivered for at least 50 weeks per year. These were needs above those that were in the November 2023 EHC Plan.
Was there fault by the Council?
The Council should have reviewed X’s EHC Plan at least annually. In the period I have investigated, it delayed reviewing the Plan. Mr K says they asked for a review in October 2022 and chased it in November 2022.
The Council says it has no records of Mr and Mrs K’s contact. But despite this, I uphold this part of the complaint. I do not need to investigate further the issue of Mr K’s contacts as the Council should have reviewed the Plan without needing contact from X’s parents.
The Tribunal registered the appeal at the end of September 2023. That means any matters from then are outside the Ombudsman’s jurisdiction. We have no choice and cannot investigate any matters from that date.
But the period I have investigated – between October 2022 and the end of September 2023 – are a year when the Council had not updated X’s EHC Plan.
Did the fault cause an injustice?
Looking at the Tribunal’s decision, my decision is I can say, on the balance of probabilities, the Council’s delayed review meant X missed out on education he would have otherwise received. I can say this because the SEND Tribunal decided X should have extra provision. And also that the educational psychologist report Mr and Mrs K commissioned in December 2022 showed X’s needs were consistent then with how they were at the time of the appeal hearing.
The Council has accepted it had not updated X’s Plan to reflect the fact he was being educated out of school. That exacerbates the injustice.
At the start of the statement, I explain why I have limited the period I have considered. But even if I had investigated further back, it is unlikely I could recommend a further remedy regarding X's missed provision. That is because the further back we go from the Tribunal’s decision, the more uncertainty there is about what X’s needs were in those earlier periods.
Mr and Mrs K will have suffered their own injustice in the stress, frustration and uncertainty the faults will have caused them. These injustices demand their own symbolic remedy.
I note the Council’s contention it could never guarantee X’s EHC Plan would remain unchanged for 12 months (see paragraph 37). But the faults I have identified have likely exacerbated the uncertainty around this.
Agreed action
I recommended that, within one month of my final decision, the Council make the following remedies.
An apology for the faults I have identified.
A payment of £7200 for X’s missed educational provision. In arriving at that figure I have considered the Ombudsman’s Guidance on Remedies . Our tariff is based on term-time amounts. But the Tribunal has recommended extra provision for 50 weeks a year. So that is reflected in the amount I have recommended. This payment is intended for Mr and Mrs K to use as they see fit, for X’s educational benefit.
A payment to Mr and Mrs K of £500 each to reflect the avoidable stress, frustration and uncertainty they will have likely experienced.
The Council has agreed to these recommendations. It should provide us with evidence it has complied with the above actions.
In response to a recent decision by the Ombudsman, the Council set out an action plan to demonstrate how it planned to meet statutory timescales for annual reviews going forward. Given that recent plan, I have not made any recommendations here about service improvements the Council should make.
Final decision
I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman