Summary: Mr B is complaining on behalf of his nephew (Child X) who has special educational needs. The Council maintains an Education and Health Care Plan for Child X and Mr B says it has failed to properly review this over three years. Further, Mr B says the Council has failed to provide a suitable placement and education for Child X over this period. We have found the Council delayed in issuing an amended EHCP for Child X. The Council also failed to hold an annual review meeting to a satisfactory standard and has not communicated with Mr B appropriately. We have no jurisdiction to question the contents of Child X’s EHCP, the provision Mr B believes should be made available, or the educational placement identified. However, we do consider an injustice has been caused in this case and the Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mr B, is making a complaint on behalf of his young nephew (Child X) who has special educational needs (SEN). The Council maintains an Education and Health Care Plan (EHCP) for Child X. In summary, Mr B alleges the following:
1. The Council has failed to properly review Child X’s EHCP for the third time consecutively to ensure it meets his needs.
2. In the latest review of Child X’s EHCP, a Council officer was unprofessional in her conduct and failed to address the issues raised with seriousness.
3. The Council is failing to provide the necessary educational provision as stated in Child X’s EHCP, specifically one to one tuition.
4. The Council has failed to identify a suitable educational placement for Child X which is specialist and can meet his complex needs.
5. The Council has failed to effectively communicate and provide needed answers to the above issues and concerns.
2. Mr B says the impact on Child X has meant he has been placed in a wrong school and is not receiving the appropriate educational provision he is entitled to. He says this is negatively impacting on Child X’s welfare and educational development. As a desired outcome, Mr B wants the Council to properly manage the EHCP process and provide suitable education to Child X.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
6. 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.
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

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How I considered this complaint

8. I have read Mr B’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Mr B and the Council to comment on a draft of my decision. Each of their comments have been fully considered before a final decision was made.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

9. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”

10. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and health care plan (EHCP)

11. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
12. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at a delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
13. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
14. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
15. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.
16. The Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration restricts what we can investigate. It found that if someone has made an appeal to the SEND Tribunal, we cannot investigate any matter which is connected to the matters under appeal. This means that if a person disagrees with an EHCP annual review outcome, we cannot seek a remedy for a loss of education or any other consequences after the date the appeal was made.

EHCP annual review

17. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
18. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review).
19. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

Chronology of events

20. In November 2017, Child X was assessed for an EHCP on account of his SEN. In May 2018, the Council decided to maintain an EHCP for Child X.
21. In September 2018, the Council issued a final EHCP (version 1) for Child X. The EHCP identified a mainstream school for Child X to attend. Further provision included general one to one support by teaching staff and a greater focus on tailoring learning to Child X’s SEN.
22. In July 2019, the Council undertook an annual review of Child X’s EHCP. It issued an amendment notice with the proposed changes to the EHCP in October 2019. However, the Council did not issue a final amended EHCP (version 2) until October 2020, well over a year after the annual review meeting. The outcome of the annual review exercise was that Child X’s school should receive greater funding to support his SEN and provide more focussed support.
23. In July 2020, the Council undertook a further annual review of Child X’s EHCP. The Council declined to amend the mainstream placement identified in Child X’s EHCP because it considered his needs were being met. The Council issued a decision notice to Child X’s parents in September 2020 which notified them of their rights to appeal.
24. In July 2021, the Council carried out a further annual review meeting of Child X’s EHCP. It issued an amendment notice with the proposed changes to the EHCP in September 2021. It later that month issued the final amended EHCP (version 3). This made specific provision for Child X to attend a specialist school placement from September 2022.
25. Around this time, Mr B complained to the Council about the manner in which the latest EHCP annual review had been conducted. He also expressed he was dissatisfied with the contents of the amended EHCP (version 3) and that Child X was not receiving suitable one-to-one support at his current educational setting.
26. In November 2021, the Council carried out an emergency annual review of Child X’s EHCP in light of new professional reports. A draft amended EHCP was sent to Child X’s parents in December 2021 who confirmed they were happy with the proposed amendments. Later that month, the Council issued an amended final EHCP (version 4). This, again, named a specialist school for Child X to attend from September 2022.

My assessment

Time limitations

27. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. The Council has maintained an EHCP for Child X since 2017 and Mr B alleges the Council has not properly reviewed his EHCP between 2019 and 2021. He also says the Council has failed to provide specific one-to-one support to Child X since October 2020.
28. On the face of it, parts of Mr B’s complaint are late because he is complaining about issues which took place in 2019 and 2020. However, I consider I am able to ascertain all relevant information in order to reach a fair and meaningful decision in this case. The Ombudsman has also issued a number of public interest reports identifying serious failings by the Council in respect of maintaining EHCPs for children with SEN. I believe therefore there is a wider public interest element which means I should exercise my discretion and investigate issues which ordinarily would be out of time. I am therefore exercising my discretion and will investigate all issues irrespective of the passage of time.

Educational placement

29. An EHCP identifies where a child or young person will receive their education. In this case, the Council has issued four final EHCPs, three of which were amended versions following a review exercise. Each of the EHCPs issued by the Council has identified an educational placement for Child X to attend. Since the Council issued a final EHCP (version 1) in September 2019, Child X has attended a mainstream school setting. In September 2022, Child X’s latest EHCP identifies a specialist school for him to attend which Mr B agrees is correct approach for Child X receiving a suitable education. However, Mr B believes a specialist placement should have been identified much earlier by the Council and that Child X has been deprived of receiving a suitable education in the meantime.
30. By law, I cannot investigate where the subject matter of the complaint could be appealed to a statutory tribunal, unless it was, at the time, unreasonable for the complainant to exercise that right of appeal (see Paragraph 5). The naming of a school placement in an EHCP carries a right of appeal to the SEND Tribunal. Further, I cannot investigate whether Child X has received a suitable education at his mainstream school because this is inextricably linked to the question of the identified placement. If Child X’s parents disagreed that Child X should attend the mainstream school setting identified in the EHCPs, they should have appealed the decision to the SEND Tribunal. The evidence shows the Council did notify Child X’s parents of their right to appeal the decision and so I consider they could have reasonably appealed to the SEND Tribunal.
31. The naming of Child X’s school and the question of suitability is an appealable matter. I will not therefore investigate because the restriction I describe at Paragraph 5 (above) applies to the facts of this case.

EHCP annual reviews

32. As set out above, an EHCP should be reviewed on an annual basis to ensure the needs of the child or young person and the provision made available is up-to date and accurate. In summary, Mr B says the Council has failed to carry out a sufficient annual review of Child X’s EHCP for the past three years. However, I have reviewed the Council’s actions since it has maintained an EHCP for Child X. This shows the Council has carried out an annual review of Child X’s EHCP in July 2019, July 2020, July 2021 and November 2021. It is clear from the information I have assessed that Mr B is dissatisfied with the contents of the amended EHCPs and how decisions were reached by the Council to inform those amendments. Specifically, he has complained about the contents of the EHCPs and that the amendments do not consider all factors he considers to be relevant.
33. Importantly, when an EHCP is amended, the Council’s decision-making in relation to the contents of the EHCP can be appealed to the SEND Tribunal. The Council has properly informed Child X’s parents of their right of appeal and I have seen no evidence it would have been unreasonable for the right of appeal to have been exercised. I therefore have no legal jurisdiction to investigate the decisions reached by the Council in amending Child X’s EHCPs, or the contents or rationale of each amended EHCP. I will not therefore investigate because the restriction I describe at Paragraph 5 (above) applies to the facts of this case.
34. However, I can investigate a delay by the Council in carrying out an annual review of an EHCP and issuing an amended version. In particular, the Council carried out an annual review of Child X’s EHCP (version 1) in July 2019, but did not issue a final amended EHCP (version 2) until October 2020. The Code says that where a council decides to amend an EHCP, it must notify the parent of this decision within four weeks of the review meeting. There is however no statutory timeframe for how long the Council can take to do the amendments, the Code simply says this should happen ‘without delay’. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council has to issue the final plan within eight weeks of the amendment notice.
35. In this case, the Council issued an amendment notice to Child X’s parents in October 2019, yet delayed in issuing the final amended plan (version 2) until October 2020. This was a serious delay by the Council. I do therefore find fault by the Council which it has acknowledged during its discussions with me.

One to one provision

36. In addition, Mr B complains the Council has failed to provide specific provision to Child X in order to support his SEN, specifically one to one support by teaching staff. I have spoken to Mr B who believes Child X should be receiving approximately 25 hours of one-to-one support each week, which roughly equates to all learning hours typical of a child attending school. Importantly, the Council is only required by law to provide provision specifically identified in an EHCP. I have reviewed each of Child X’s EHCPs and while these do make provision for some general one to one support per week, these do not specify any provision related to Child X receiving a specific number of hours of one-to-one support. I discussed this particular issue with Mr B who accepted the EHCPs do not make provision for Child X to receive a specific number of hours of one-to-one support. In addition, Mr B has been unable to detail specifically what one to one support Child X is not receiving and in what areas.
37. In October 2020 however, the Council agreed to provide more funding to Child X’s school to support his SEN. Mr B believes additional school funding should translate to greater one to one support for Child X. However, additional school funding identified in an EHCP is only required to be used in order to meet identified needs and provision listed in the EHCP itself. As set out (above), each EHCP maintained by the Council for Child X do not specify that Child X should be receiving the majority or even a substantial portion of his learning through one-to-one support. In my view, Mr B’s complaint about one-to-one support is about a dispute with respect to what should be included in Child X’s EHCPs, as opposed to what actually is identified and must be provided. If Mr B or Child X’s parents disputed the contents of any of Child X’s EHCPs (including the subject of provision), they could have reasonably appealed this to the SEND Tribunal on multiple occasions. For these reasons, the restriction I describe at Paragraph 5 (above) applies and I have no jurisdiction to investigate a dispute about what should be included in Child X’s EHCP.
38. In addition, it should be noted that the law bars me from investigating what happens in schools. Any dispute therefore with respect to how Child X’s school has managed his funding from the Council is out of jurisdiction and the restriction I describe at Paragraph 4 (above) applies.
39. I do however accept that Child X’s EHCPs do make specific provision for Child X to receive some one-to-one general support, particularly in speech and language therapy. I requested evidence of this being provided to Child X. The evidence demonstrates there is support in place at the school and that Child X does receive some one-to-one teaching for periods of time and small group work within the mainstream setting. Moreover, Child X also receives weekly one-to-one sessions of speech and language therapy. The level of one-to-one support the Council has evidenced is entirely consistent with what specific provision is identified in Child X’s EHCPs. I have not identified any fault by the Council in this respect.

Communication and conduct

40. During the Council’s most recent EHCP annual review, Mr B says Council officers had not read Child X’s professional reports to inform an understanding of what provision he required. He also says the Council officers were unable to answer specific questions he had and were misguided as to their role in carrying out an annual review of Child X’s EHCP. The Council has accepted fault that the annual review meeting failed to be ran and managed to a satisfactory standard. It said Council officers lacked confidence to appropriately challenge expectations and explain the rationale for certain actions and decisions.
41. In addition, I believe there have been communication failings by the Council to sufficiently explain to Child X’s parents and Mr B what provision Child X should be receiving. Specifically, Mr B in his formal complaint correspondence to the Council set out clearly his concerns relating to one-to-one support he considered Child X should be receiving. The Council’s response to this issue was poor, vague and failed to respond to Mr B’s substantive points.
42. In addition, I held a meeting with Council officers to discuss the subject of Child X’s provision, annual reviews and Mr B’s expectations as to one-to-one support for Child X. My overall impression of that meeting was that the Council did not have a satisfactory understanding of what tailored support Child X should receive by way of EHCP provision. Further, the Council mistakenly accepted fault for provision failings in its formal correspondence and was required to clarify that it actually believed it had failed to secure a specialist school placement for Child X over the years. As I have explained, I have no jurisdiction to investigate or remedy any fault in this regard as the issue could have been reasonably appealed. However, I consider the Council’s misunderstandings in these areas have led to poor communication with Mr B generally. I am therefore finding fault by the Council and upholding this part of Mr B’s complaint.

Fault and injustice

43. For the reasons explained in this statement, I have identified the following fault by the Council:
1. The Council delayed by a year in issuing Child X’s final amended EHCP (version 2) as this should have been issued by no later than December 2019.
2. The Council failed to hold Child X’s EHCP review meeting to a satisfactory. It also did not communicate with Mr B in a reliable manner about Child X’s provision and in a manner consistent with good administrative practice.
44. In terms of injustice, I must assess whether any fault identified has caused the complainant’s (including Child X and Mr B) serious loss, harm or distress. Due to the delay by the Council in issuing a final amended EHCP (version 2), Child X did not receive additional school funding sooner. However, I have not been presented any evidence that Child X’s needs were not being met by his mainstream school placement. In addition, I have no legal jurisdiction to question the suitability of the mainstream school placement due to this being an appealable matter. Further, I cannot investigate what happens in schools, in particular whether the school was providing a suitable education through its curriculum and teaching content. I cannot therefore find that Child X has suffered serious loss, harm or distress by reason of the Council’s failings.
45. That said, I do believe all the failings identified in this statement have resulted in significant uncertainty and distress to Mr B and Child X’s parents. I am therefore recommending a number of remedies. With the consent of Mr B and the Council, I am recommending any personal remedy (including financial payment) be made available to Child X instead of Mr B and/or Child X’s parents who I believe have suffered an injustice in this case due to the fault identified.

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Agreed action

46. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions:
1. By no later than 20 June 2022:

• The Council will provide a written apology to Mr B and Child X’s parents which acknowledges the fault and injustice identified.

• The Council will pay Child X’s parents £700 which is to be spent on his educational development (e.g. equipment, learning materials and/or software). This payment will serve as acknowledgement of the distress and uncertainty caused by the Council’s failings.

2. By no later than 20 August 2022:

• The Council will review its handing of EHCP cases against the Code, in particular the statutory framework for reviewing an EHCP and issuing any final amended EHCP.
• The Council will review its formal complaint responses to Mr B and how it responds to specific concerns raised.
• The Council will provide evidence to the Ombudsman it has satisfied all the recommended actions. In doing so, the Council will provide evidence of any review and all measures adopted to improve its services.

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Final decision

47. I am partially upholding the complaint. The evidence shows the Council failed to issue a final amended EHCP for Child X in accordance with the Code. Further, it failed to properly hold an annual review meeting and communicate with Mr B over the provision Child X is entitled to receive. However, I have no legal jurisdiction to investigate the contents of Child X’s EHCPs, the suitability of his mainstream school placement or what provision should be made available. I do consider an injustice has been caused by the Council’s failings and it has agreed to my recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman