Summary: Miss X complained the Council failed to amend her son, Y’s Education, Health and Care plan, to provide an appropriate school placement, and to deliver the content of his plan since March 2022. There was fault in the Council’s actions. The Council agreed to pay Miss X £11,300 to recognise the four and a half terms of education and specialist provision Y has missed and to remedy the frustration and distress caused to her and Y.

The complaint

1. Miss X complained that since March 2022 the Council failed to:
• amend her son, Y’s, Education, Health and Care (EHC) plan;
• provide an appropriate school placement; and
• deliver the content of his plan.
2. Miss X said Y missed out on a year and a half of education and the content of his EHC plan and this has caused them both distress. Miss X wanted the Council to find Y an appropriate school placement, issue an amended EHC plan, and provide compensation for the education Y had missed.

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The Ombudsman’s role and powers

3. 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)
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. Miss X complained about matters that started in March 2022 which is more than 12 months ago. However, Miss X believed the Council was taking appropriate action. When she was aware the Council was not acting in relation to Y’s education or EHC plan, she complained to it within 12 months and brought her complaint to us when the Council would not consider it further. Therefore, I investigated events that occurred from March 2022 onwards.

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How I considered this complaint

9. I read the documents provided by Miss X and discussed the complaint with her on the telephone.
10. I considered the documents provided by the Council.
11. Miss 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

12. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. 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. 
14. 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 an EHC plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. 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)
16. 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)
17. 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)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Securing the provision

19. 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)

Principles of good administrative practice

20. The Ombudsman publishes a guidance document setting out the standards we expect from bodies in jurisdiction; “Principles of good administrative practice”. This includes operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld.

Guidance on Remedies

21. The Ombudsman publishes a guidance document setting out our approach to remedying injustice where we find fault. This is guidance for staff that is made available to the public for transparency. Councils may wish to take this into account when deciding on remedies during their internal complaints process.
22. The guidance details our approach to remedying fault which has resulted in a child not receiving the provision specified in their EHC plan. It suggests a symbolic payment per term of missed provision taking into account factors such as the age of the child, their special educational needs, and whether they have missed education during an important school year.

What happened

23. Y is of secondary school age. He has special educational needs (SEN) and social, emotional and mental health needs that mean he requires additional support with his education. In 2021 Y was at primary school and the Council issued an EHC plan for Y. It named the primary school Y was attending (school A) in the plan and said Y needed:
• Weekly writing tasks in a small group.
• 20 minutes per day precision teaching.
• 15 minutes one-to-one each day with a trusted adult in school.
• 30-40 minutes one-to-one pastoral support per week.
• 10 hours adult support per week for core lessons.
• Pre-teaching of specific vocabulary before a topic with addition support in developing core vocabulary.
• Two key people in school to build a trusting and secure relationship with (to prevent overreliance and reduce the intensity of one relationship).
• 60 minutes a week social communication programme.
• Minimum of 40 minutes a week structured small group work for social skills.
• 20 minutes per week one-to-one support with emotional literacy.
24. Y transitioned to secondary school in September 2021 and began attending school B, a mainstream secondary school.
25. Miss X says Y struggled to manage in secondary school within the first few weeks of year seven. Y stopped attending in February 2022 due to his SEN.
26. The Council said an interim review of Y’s plan was held in March 2022 and a change in placement was requested. The Council said it consulted two schools in April for a placement for Y, but they could not offer a place.
27. The Council said it decided in October 2022 that Y needed a specialist placement. It consulted two schools in November 2022 but they did not respond.
28. The Council said it suggested to school B a potential provider to deliver temporary alternative provision for Y in March 2023.
29. Miss X complained to the Council that Y had been out of school for a year and a half at the end of May 2023. Miss X said Y was only receiving one hour with a teaching assistant at home every week which was not in line with his EHC plan. The school confirmed Y was receiving one hour a week with a teaching assistant in his home.
30. The Council responded to Miss X’s complaint in June 2023 and upheld her complaints. It said:
• It had not secured a suitable permanent provision for Y since the annual review in March 2022.
• It had not liaised with Y’s school to ensure he received suitable interim provision.
• There had been several changes in case worker causing Miss X uncertainty.
• It apologised and said it did not offer compensation as an outcome of complaints.
31. Miss X remained dissatisfied and complained again to the Council. She said that Y should be compensated for the year and half education he had missed and the impact on his mental health. She said that one hour of tuition per week was not enough education.
32. The Council said it completed an annual review of Y’s plan at the beginning of July 2023.
33. The Council refused to consider Miss X’s complaint at stage two as it had upheld all three points, explained how the fault had occurred and apologised. It told Miss X it had discussed whether it would be appropriate to offer compensation and decided it would not be. It said further consideration would not provide a different outcome.
34. In October 2023 the Council told us that there was still no confirmed school placement for Y, he remained at home with one hour of tuition and an amended EHC plan had not been issued. The Council said the school had recently discussed potential options of alternative provision with Miss X. Miss X said that Y had not received any tuition since the end of the 2022/2023 school year and currently receives no education nor the provision set out in his EHC plan.
35. In response to a draft version of this decision the Council provided evidence it had issued an amendment notice, and draft amended EHC plan to Miss X for her comments on 22 November 2023.

My findings

Education, Health and Care plan

36. The Council reviewed Y’s plan in March 2022. As Y was already attending a secondary school, and no longer the named primary school on his plan, the Council should have provided an amended plan for Miss X’s comments and issued the amended plan within eight weeks and by the end of April 2022 in line with the statutory guidance. The Council did not do so and that was fault.
37. The Council reviewed Y’s plan again in July 2023. It should have issued an amended plan within eight weeks and by the end of September 2023. The Council did not do so which was a delay of eight weeks and the time of this decision and was fault.
38. Overall that was a delay of 18 months and means that Y was without an EHC plan that accurately reflected his needs, and the school or type of school he should attend. It has also delayed Miss X’s appeal rights to the SEND tribunal if she disagrees with the content of the EHC plan.

Consultation

39. The Council stated it could not name a school as it had not found one with a place that could meet Y’s needs. It only consulted with two schools in April and two schools in November 2022. The consultations were insufficient and were delayed. The Council should have acted more quickly to consult with a larger range of schools after the initial two consultations were negative. It did not do so which resulted in drift and delay and that was fault. The Council could also have named a type of school in Y’s EHC plan to prevent further delay and to provide Miss X her right of appeal to the SEND tribunal.

Provision

40. The law says it is the Council’s responsibility to ensure that the provision in a child’s EHC plan is secured for them. The Council should have acted to ensure there was alternative provision available for Y while it identified a permanent placement from March 2022. The Council has already identified that it did not speak with school B to ensure Y received suitable provision after the March 2022 review and has apologised to Miss X. It has also confirmed that in October 2023 Y remains without suitable provision.
41. In the absence of an updated plan, Y’s EHC plan from 2021 remains in place. It clearly sets out significant support, none of which could have been provided by a one-hour session with a teaching assistant at home. Y has missed 19 months (four and a half terms) of education, social opportunities, and the provision in his EHC plan. This has also caused both Y and Miss X distress and frustration.

Complaint response

42. The Council told Miss X that it did not offer financial compensation as a result of complaints. This is not in line with our principles of good administrative practice or our Guidance on Remedies. The Council has failed to remedy the months of missed education it identified Y had experienced. We have already identified this fault in a previous Ombudsman investigation and made recommendations for the Council to improve its service in remedying lost education for a child. I have made recommendations below to remedy the injustice caused to Y and to improve the Council’s service.

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Agreed action

43. Within one month the Council will:
• Write to Miss X and Y and apologise for the distress, frustration and Y’s missed provision caused to them by the faults identified above;
• Pay Miss X £10,800 to recognise the four and a half terms of Y’s missed educational and EHC provision between March 2022 and November 2023. This is calculated at £2,400 per month and is in line with our guidance on remedies. Miss X should use this for Y’s educational benefit as she sees fit;
• Pay Miss X £500 to recognise the frustration and distress caused to her by the Council’s delay in issuing Y’s amended EHC plan and not consulting with sufficient schools to identify a place for Y;
• Issue an amended final EHC plan for Y and provide Miss X with her appeal right to the SEND Tribunal about the content of the plan; and
• Work with school B to identify and provide suitable alternative provision for Y until it provides an appropriate school placement.
44. Within three months the Council will;
• Remind relevant staff that it must issue a final amended EHC plan within eight weeks of a review, in line with the statutory guidance.
• Review how it consults schools where a change of placement is required to ensure it makes sufficient and timely consultations. The Council will produce an action plan with timescales for any improvements it identifies.
• Present this investigation, and the Council’s complaints policy not to provide a financial payment to remedy lost education or provision, at a relevant scrutiny committee meeting for discussion. The Council will provide the minutes from that meeting to us within one month of the meeting occurring.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault happening in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman