Summary: Mrs X complained about how the Council handled her child’s education, health and care plan, and their education when they could not attend school. She said it caused stress and anxiety, and she had to pay for her child’s education. We find the Council at fault and this caused injustice. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained about the way the Council handled her child’s education and special educational needs. Specifically, she complained:
1. her child’s education, health and care plan is not fit for purpose;
2. the review of her child’s plan was not completed;
3. the Council failed to tell her she had a right to appeal the plan; and,
4. the Council failed to provide her child with education when they became unable to attend school.
2. Mrs X said the missed education had an impact on her child, and it impacted their mental health. She said it caused her child and the family stress and anxiety. She said she paid for some of her child’s education, which had a financial impact.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. 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

9. As I have said above, we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter. In this case, Mrs X complained that her child’s education, health and care plan is not fit for purpose (part a of the complaint).
10. Mrs X has the right to appeal to the SEND Tribunal about the content of her child’s education, health and care plan. I consider it would be reasonable to expect Mrs X to use this right and appeal the plan if she is unhappy with it.
11. For this reason, I have not investigated part a of this complaint.
12. I have investigated parts b, c and d. I have considered the Council’s actions up to November 2024, when the Council sent its second complaint response.

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How I considered this complaint

13. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
14. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

15. A child or young person 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.
16. The council has a duty to make sure the child or young person receives the special educational provision set out in an EHC plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
17. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. If there is a change in the child’s or young person’s circumstances that mean the plan is not working, we expect councils to arrange an emergency review as soon as possible.
18. At a review, where the council proposes to amend an EHC plan, councils must issue the final amended EHC plan within 12 weeks of the review meeting.
19. When a council issues an amended EHC plan, it must inform the child’s parents or the young person of their right to appeal the plan at the Tribunal.

What happened

20. Mrs X’s child, B, has an education, health and care (EHC) plan. In early 2023, B’s EHC plan said B should go to a special school. B attended that school but did not go back there in September 2023.
21. In September, Mrs X started paying for some online provision for B.
22. In November, there was an emergency review of B’s EHC plan. The school said it could not meet B’s needs and would end B’s placement in December. It was agreed that B would get education otherwise than at school.
23. In early 2024, Mrs X complained. The Council accepted it had delayed issuing B’s EHC plan after the review.
24. In July, the Council issued B’s amended EHC plan.
25. The Council later sent another complaint response. It said the delays issuing B’s EHC plan were not acceptable. It said this caused Mrs X frustration and anxiety. It apologised. The Council said that by not issuing the final EHC plan and the accompanying letter, it had denied Mrs X her appeal rights. It offered Mrs X £300 because of the delays.
26. The Council told Mrs X it had been expecting the school to support B until the placement ended in December.

Analysis

Review

27. Mrs X complained the review of her child’s education, health and care (EHC) plan was not completed (part b of the complaint).
28. The review was held in early November 2023. The Council should have issued the amended EHC plan 12 weeks after this, which would have been February 2024. The Council issued the plan in July 2024. This is a delay of five months and is fault.
29. I find this fault caused Mrs X injustice because it delayed her right to appeal the plan, and it caused unnecessary and avoidable frustration and distress.
30. In its complaint responses the Council recognised it was at fault and apologised. I am satisfied with the Council’s apology. However, I am not satisfied that the £300 the Council offered remedies the injustice caused here.
31. Mrs X tells me she did not accept the Council’s offer. In paragraph 46 below, I set out what we consider an appropriate and proportionate financial remedy.
32. The Council has an improvement plan on its website and an action plan with the Ombudsman to improve its special educational needs (SEN) processes. For this reason, I do not consider any additional service improvements are necessary.

Appeal rights

33. Mrs X complained the Council failed to tell her she had a right to appeal the EHC plan (part c of the complaint). Mrs X said that when the Council issued the EHC plan in July 2024, it did not tell her she had a right to appeal the plan.
34. I have seen the covering letter the Council sent Mrs X with the EHC plan in July 2024. This told her she had the right to appeal the plan. For this reason, I do not find the Council at fault.
35. However, I can understand why Mrs X believed the Council had failed to tell her about her appeal rights. This is because in its complaint response, the Council said:

“By not issuing you the amended final EHC plan and the accompanying letter, we have denied you your right to appeal the decision to SEND Tribunal.”

36. This is misleading as it implies the Council did not issue the accompanying letter which meant the Council therefore denied Mrs X her right to appeal. But this was not the case. The Council delayed issuing the plan, as I have found above. However, when the Council issued the plan, it also told Mrs X of her appeal rights. Mrs X did not have any appeal rights before the plan was issued. So there is no fault here.

Alternative provision

37. Mrs X complained the Council failed to provide her child with education when they became unable to attend school (part d of the complaint).
38. B was not able to attend school from September 2023 onwards. I have investigated one term: the winter term from September to December 2023. This is because I am satisfied with the Council’s actions from January 2024 onwards.
39. The school was not able to provide B’s provision as set out in their EHC plan because B could not attend. The Council therefore had a duty to provide the provision.
40. The Council told the Ombudsman it was hoping B’s school would do more to re-engage B or arrange alternative provision. The Council recognised it should have acted more quickly when it was told B would not be able to attend school. It accepted that relying on the school to send work home for B was not enough.
41. The Council said it regrets it did not look more into detail at the alternative provision the school was providing during this term. The Council said it was aware B was not attending school but it did not confirm that suitable alternative provision was being provided. It said it should have looked into this more carefully. I agree.
42. I find that when B stopped attending school, the Council did not satisfy itself that the placement was available for B and could meet their needs. The Council had a duty to provide B’s EHC plan provision when the school could not. The Council accepts it did not provide this.
43. I therefore find the Council at fault. This caused injustice because B would have missed a term of full provision if Mrs X had not paid for some provision during this term at her own expense. Also, I find it caused Mrs X unnecessary and avoidable distress and frustration.

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Action

44. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the unnecessary and avoidable distress caused by failing to provide B with educational provision during the winter term of September to December 2023.
45. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making this apology.
46. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £2500. This is made up as follows:
• £500 to remedy the unnecessary distress and frustration, and the denied appeal rights, caused by the delay issuing B’s EHC plan. I have considered our guidance on remedies and I find £100 per month of delay is appropriate and proportionate for the level of injustice caused. £100 per month multiplied by five months is £500; and,
• £2000 to remedy the provision B missed and the unnecessary and avoidable frustration caused by failing to provide B’s provision during the winter term. Our guidance on remedies suggests a payment of between £900 and £2400 per term for missed educational provision. I have considered what would have happened but for the fault, what would have happened but for Mrs X’s ability to pay for some provision, B’s special educational needs and vulnerability, the Council’s lack of action, and Mrs X’s frustration and distress. I find a payment of £2000 for that term is appropriate and proportionate to remedy the level of injustice caused;
• £500 plus £2000 is £2500.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice. The Council has agreed to take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman