The Ombudsman's final decision
Summary: Miss B complained that the Council, in respect of her daughter C, delayed in producing an amended Education, Health and Care Plan following an Annual Review, finding an alternative placement for her or putting in place alternative education when she was unable to attend school. We found fault with the Council’s actions. It has agreed to pay Miss B £2000 for the benefit of C and £400 for herself and to improve its procedures for the future.
The complaint
Miss B complained that West Berkshire Council (the Council) failed to provide her daughter, C, with a suitable education since January 2023 and the school named on her Education, Health and Care (EHC) Plan since May 2022 has said it can no longer meet her needs. It also delayed in producing an amended EHC Plan following the early annual review in November 2022. Miss B says her daughter has missed out on education and is isolated.
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) 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.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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)
What I have and have not investigated I have investigated the period from November 2022, when the annual review was held until November 2023 when the final EHC Plan was issued and Miss B’s right of appeal arose. She subsequently appealed the content of the EHC Plan to the SEND tribunal.
How I considered this complaint
I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Special educational needs 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.
Reviewing EHC Plans 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) 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.
Alternative provision of education Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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)) What happened Miss B’s daughter C has multiple health conditions, including autistic spectrum disorder, visual and mobility impairments. She had her first EHC Plan in May 2022 and was attending a mainstream school. In September 2022 she started to struggle to attend school managing only half-days. Her attendance dropped to 31%.
The school held an annual review on 29 November 2022 and concluded it could not meet her needs. It sent the paperwork to the Council on 12 December 2022.
C stopped attending school entirely in January 2023 and Miss B informed the Council of this. In February 2023 the Council referred C to the medical tuition service to arrange some tuition. On 21 February 2023 the service agreed to provide a package of tuition as long as a forward plan was developed regarding reintegration into school. The tuition started on 20 March 2023, involving three hourly sessions a week of maths English and science.
C attended all the tuition sessions. She completed the reintegration visits in April but only two out of six in May. The medical tuition service ended the sessions on 19 May 2023 in order for C to continue with the reintegration plan. The school agreed to send a programme of work home for C and arranged for Mencap to do some support work with her. C did not attend the planned sessions in school. The Council says it was not aware of this.
In June 2023 the Council consulted with nine schools. Only one offered a place but Miss B said this was unsuitable due to the stairs.
In mid-July 2023 Miss B asked the Council to provide some education for C.
She then made a complaint via her MP, about the delay in amending the EHC Plan, the failure to find an alternative placement or provide alternative education.
The Council sent a proposed amended EHC Plan in early September 2023 and consulted with another five schools, receiving only one response - a rejection. Following comments from Miss B, the Council sent a further proposed amended version in mid-October 2023 and consulted with three more schools. Again, it received just one response, a rejection.
The Council issued the final amended EHC Plan on 10 November 2023. Naming C’s current school. Miss B has appealed against it. The Council sent a brief stage one complaint response on 13 November 2023 apologising for the delay in issuing the final EHC plan.
Since then, C developed an additional medical condition which necessitated a hospital stay. The Council said the school since January 2024 has sent fully adapted work for C and provided two days a week of inclusion opportunities via a third party. Miss B disputes it has all been fully adapted. Since March 2024 it has funded a personal assistant to support C at home and C was at a therapeutic placement from mid-April 2024 until 17 May 2024.
Analysis Delay following the annual review The Council received the annual review paperwork in mid December 2022 it should have notified Miss B within four weeks (by mid-January 2023) of its intentions with regard to the EHC Plan.
It did not send a Notice of Amendment until September 2023 and only issued the final amended EHC Plan in November 2023, ten months later. This was fault which caused C to miss out on education and delayed Miss B’s opportunity to appeal against the final plan and secure an alternative placement.
Alternative provision I have not found fault with the Council’s response in January 2023 to C not attending school: it made a referral to the medical tuition service, which was approved in February 2023 and the sessions started in March 2023, along with a reintegration plan.
However, once the reintegration plan failed to progress and the tuition stopped, C was left without any education from June until November 2023, when the final EHC Plan was issued. This was fault which caused C to miss out on approximately a term of education (accounting for the school holidays) and caused Miss B significant distress and inconvenience.
Complaint-handling The Council took four months to send a short complaint response, acknowledging the delay but offering no remedy for the missed education and delayed EHC Plan. This was fault which meant Miss B had to complain to us.
Agreed action
In recognition of the injustice caused to C and Miss B I recommended the Council, within one month of the date of my final decision: apologises to Miss B and C, and pays Miss B £2,400, of which £2,000 is for the benefit of C and £400 for Miss B’s time and trouble in pursuing the complaint along with the impact on her of C being out of education.
I also recommended the Council should, within three months: review its EHC Plan processes to ensure actions are taken within the statutory timescales following annual reviews; review its processes to ensure action is taken more promptly when is child is out of education; and provide evidence of steps taken within its complaint processes to ensure symbolic payments are considered as a resolution to prevent people having to complain to us (as recommended in a previous decision against the Council ).
The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.
Final decision
I consider this is a proportionate way of putting right the injustice caused to Miss B and C and I have completed my investigation on this basis.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman