Summary: Mrs X complained the Council failed to complete the recommendations it identified as being necessary in October 2022, after it upheld her complaint that it had not provided her son L, with an education for over 12 months. Mrs X said L remained without any educational provision or an up-to-date Education, Health and Care Plan. The Council failed to implement some of its own recommendations, failed to ensure L received the specialist provision from October 2022 to June 2023 and failed to review L’s Education Health and Care Plan in line with the statutory guidance. The Council agreed to pay Mrs X £5,150 to recognise the distress caused and lack of education, and it will issue L’s amended plan within one month.

The complaint

1. Mrs X complained the Council failed to complete the recommendations it identified as being necessary in October 2022, after it upheld her complaint that it had not provided her son L, an education for over 12 months. Mrs X said that L remained without any educational provision or an up-to-date education, health and care plan. Mrs X says this caused L distress, and he continues to miss social and educational opportunities, and caused Mrs X frustration and distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.

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How I considered this complaint

5. I read the documents Mrs X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council provided in response to my enquiries.
7. I considered our Guidance on Remedies, which is available on our website.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Reviewing the EHC plan

13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
14. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the 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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

Securing provision

18. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
19. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that the provision is not in place at any time.

What happened

20. L lives at home with his family. L has a neurological and developmental disorder and a physical health condition. L has an EHC plan that sets out the specialist educational provision he needs. In 2021 L attended school A which was the named school in his plan. L should have completed his GCSE exams in the summer of 2023. In September 2023 L is due to transition to post-16 education.
21. In January 2022 the Council issued an amended final EHC plan following an annual review. The plan named school A.
22. In the Spring of 2022 Mrs X complained to the Council that school A could not meet L’s needs and so he was not attending and was not receiving the provision in his plan. Mrs X asked for an emergency review of L’s needs. Mrs X also said the Council had not contacted her or L despite it being aware that L had been out of education for a number of months.
23. The Council responded to Mrs X in June 2022 and said most of Mrs X’s complaint was a matter for school A. It upheld her complaint about its lack of contact, apologised and said it would provide a named caseworker.
24. Mrs X complained again to the Council. She said it had not reviewed L’s EHC plan in line with the guidance. She said the Council had not responded to her request for an emergency review of L’s EHC plan, and L was unable to attend the named school and needed a new named school.
25. The Council upheld Ms X’s complaint in October 2022. It said it had not reviewed L’s EHC plan to understand his needs. It said it would:
• assign a named case worker and contact Mrs X;
• complete an urgent review of L’s EHC plan;
• contact the medical education service about support for L;
• contact school A for a summary of the support it was offering L;
• pay Mrs X £600 per month for the period October 2021 until October 2022 that L had been out of education to acknowledge the distress caused to him (£7,200 in total) and £250 to acknowledge the time and trouble caused by the delay in dealing with the complaint.
26. The Council held an annual review meeting for L’s EHC plan in December 2022. School A did not attend on Mrs X’s request, as relationships had broken down. Mrs X requested changes to sections B, E and F of the plan. The Council said it told Mrs X it could not change those sections as there were no professional reports on which to base the changes. Mrs X said the Council did not tell her that and she understood the plan was being amended with her requested changes.
27. The Council arranged for school A to provide L with a laptop. The Council did not take any action to provide any educational provision for L, or to work with School A to ensure it provided the special educational provision outlined in L’s plan.
28. In March 2023 college B offered L a place from September 2023.
29. The Council wrote to Mrs X in March 2023 with the draft amended EHC plan. It made changes to section A. Mrs X responded to the Council and requested changes to the plan. She asked it to name college B from September 2023, when L would be old enough to attend.
30. The Council said that in May 2023 school A confirmed it could still meet L’s needs and there was an offer of full-time education available to L. In May the Council confirmed to Mrs X that L had a place at college B and it would name it in his EHC plan, but that it was still considering her requested amendments.

The Council’s response to my enquiries

31. The Council confirmed it had not completed the actions it identified as necessary in October 2022, other than assigning a named case worker and making the financial payment.
32. In response to my enquiries the Council stated it expected school A to work with Mrs X and L to ensure the provision was being offered. It said it could have taken action to address Mrs X concerns about school A’s offer of educational provision and to ensure school A was offering alternative provision.
33. The Council accepted that since the December 2022 annual review of L’s plan, it had issued a draft EHC plan but it had not issued the final plan and it was therefore out of timescales for issuing the amended final EHC plan. The Council accepted that was fault.
34. The Council said it would arrange an annual review as soon as possible but it could not update Sections B, E and F of the EHC plan as Mrs X requested without up-to-date educational input. The Council suggested it holds the annual review within 12 weeks of the start of term in September 2023 (by December 2023).
35. The Council offered to make a payment of £450 per month to recognise the months L has missed education and £250 for the time and trouble in making this complaint.

My findings

36. In October 2022 the Council stated it would take several actions as a result of Mrs X’s complaint. It did not complete most of those actions which was fault. It has caused L further injustice which I shall set out below. It has also caused Mrs X distress and the raised expectations the Council would act. The Council offered a financial payment of £250 to recognise the injustice caused to Mrs X, which is an appropriate remedy.
37. In October 2022 the Council said it would review L’s EHC plan. The guidance states the Council should have reviewed L’s EHC plan before the end of March 2023, as he should transition to post 16 education in September 2023. When the Council held the annual review meeting in December 2022 it should have told Mrs X of its decision to amend the plan and provided the proposed changes within 4 weeks. It should then have issued the final amended EHC plan within a further eight weeks (12 weeks in total), so by the beginning of March 2023. The Council did not issue the proposed changes within that timescale, and had not issued the final amended EHC plan at the date of this decision. That was a delay in excess of 14 weeks, was not in line with the guidance and was fault.
38. L does not have an up-to-date EHC plan that accurately identifies his needs and appropriate provision. That also caused L distress and uncertainty about his future provision. Mrs X was not provided with her appeal rights to the SEND tribunal, this was particularly important as Mrs X wanted changes to sections of the EHC plan which the Council would not agree.
39. The Council was responsible for ensuring L received the provision in his EHC plan. It said it was aware in April 2022 that L was not receiving the provision in line with his plan. School A said it could meet L’s needs, however without a relevant EHC plan L’s needs were unclear. The Council did not take any action to support L’s reintegration back to school A. The Council recognised in its October 2022 response to Mrs X, and in its response to my enquiries that it had not ensured L received the provision in his plan. That was fault.
40. The Council remedied the injustice caused to L by its fault, up to October 2022, with a financial payment. However, it did not take any action to ensure L received an education or the provision in his EHC plan for two terms between October 2022 and the date of this decision. That is further fault and meant L continued to miss out on his education, social opportunities, and the opportunity to sit his GCSE exams. The Council offered a financial payment of £450 per month to remedy that injustice. L did not receive any education or specialist provision between October 2022 and June 2023, in his GCSE year and therefore this amount was insufficient. I made an appropriate recommendation to remedy that injustice below.

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Agreed action

41. Within one month of this decision the Council will:
• write to Mrs X and L and apologise for the injustice caused by the faults identified above;
• pay Mrs X the symbolic amount it identified of £250 to recognise the distress caused by the Council failing to complete the actions it identified as necessary in October 2022;
• pay Mrs X a symbolic amount of £100 to recognise the distress caused to her by its failure to provide her appeal rights to the SEND tribunal;
• pay Mrs X £4,800 for the two terms L continued to be without an education or the provision in his plan between October 2022 and the date of this decision (this is calculated at £2,400 per term and is in line with our Guidance on Remedies). Mrs X should use this for L’s educational benefit as she sees fit; and
• issue the final amended EHC plan and Mrs X’s appeal rights to the SEND tribunal. The Council will continue to review L’s EHC plan as it has suggested in paragraph 34.
42. Within three months of this decision the Council will remind relevant staff:
• that it is the Council’s duty to ensure the specified special educational provision in an EHC plan for a child or young person is being provided, and it should investigate where a concern is raised that the provision is not in place; and
• to review EHC plans in line with the statutory guidance and adhere to the timescales set out within it.
43. The Council will provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. I found fault causing injustice, and the Council has agreed to my recommendations to remedy that injustice and to avoid the same fault occurring in the future.

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Investigator's decision on behalf of the Ombudsman