Summary: We find the Council at fault for delays in the education, health and care plan review process, delays implementing alternative educational provision, poor complaint handling, and poor communication. This caused Miss X distress and frustration, and denied her appeal right. The Council will apologise and make a payment.

The complaint

1. Miss X complained about the way the Council handed her child Y’s education. Specifically, she complained the Council:
1. delayed completing the review of Y’s education, health and care (EHC) plan;
2. failed to issue an amended final EHC plan;
3. failed to deliver the special educational provision in Y’s EHC plan;
4. communicated poorly with her; and,
5. handled her complaint poorly.
2. Miss X said it has been stressful and overwhelming. She said it caused unnecessary and avoidable distress, frustration, and cost her time and trouble. She also lost appeal rights. Miss X said it caused Y frustration, missed socialisation with peers, and isolation. She also said Y was impacted by the loss of educational provision and learning.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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(1), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. Miss X complained about events from April 2023 onwards, when her child Y did not return to school after the school holiday.
10. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. In this case, Miss X asked the Council to review Y’s education, health and care (EHC) plan in May 2023, and complained to the Council in June 2023.
11. The Council issued its final stage complaint response in May 2024, and met with Miss X later that month. Miss X then brought her complaint to the Ombudsman in June 2024.
12. As I have found below, the Council delayed dealing with Miss X’s complaint. I find that Miss X did not delay bringing her complaint to us. I therefore find there are good reasons to exercise our discretion and look back to events from April 2023.
13. I have investigated up to June 2024 when Y started at a new school and Miss X complained to us.
14. Miss X complained the Council failed to deliver the special educational provision in Y’s EHC plan (part c of the complaint).
15. Usually we cannot investigate lack of EHC plan provision if the reason a child is out of school is linked to a disagreement with the kind of school or named school in the EHC plan. The parent has the right to appeal the school or type of school named in the plan. The Tribunal will decide which is the best school/type of school for the child.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. We would not usually look at the period while any changes to the EHC plan are finalised, so long as the council follows the statutory timescales to make those amendments.
17. In this case, as I set out below, the Council did not follow the statutory timescales. The Council delayed issuing the EHC plan by nine months (September to July). Miss X did not have an appeal right until the EHC plan was issued, therefore we can investigate provision during that time, which was the academic year 2023-24.

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How I considered this complaint

18. I considered the information and documents provided by Miss X and the Council. Miss 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.
19. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, health and care plans

20. A child or young person with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
21. The council has a duty to make sure the child or young person receives the special educational provision set out in the child’s EHC plan. (Section 42 Children and Families Act)
22. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision for every pupil with an EHC plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and,
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

23. 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 issue its decision to amend, maintain or discontinue the EHC plan within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
24. Where the council proposes to amend an EHC plan, it must send the parent an amendment notice within four weeks of the review meeting. It must then issue the final amended plan within 12 weeks of the review meeting.
25. There is a right of appeal to the SEND Tribunal against, amongst other things, a council’s:

• description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan; and,
• amendment to these elements of an EHC plan.

Alternative provision

26. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
27. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

The Council’s complaints procedure

28. The Council’s complaints procedure says it aims to send a stage one complaint response within ten working days. If this is not possible, it says it will update the complainant within ten working days with an estimated time for a response.
29. If a complainant asks for stage two and the Council decides there is no reason for a stage two, it will explain this to the complainant within ten working days.
30. If the Council accepts a request for stage two, the procedure says it will normally respond within 30 working days. If this is not possible, the Council will advise the complainant of the likely response time.

What happened

31. In November 2022, the SEND Tribunal decided that Miss X’s child Y’s education, health and care (EHC) plan should name School A.
32. The Council issued an EHC plan naming School A. This plan said a “highly-tailored plan should be put in place to support [Y]’s reintegration to education”. The plan also said Y would get some occupational therapy.
33. In January 2023, Y started at School A.
34. In April, Y did not go back to School A after the school holidays. In May, Miss X asked the Council to review Y’s EHC plan. Miss X said School A was not suitable for Y. School A said it could meet Y’s needs.
35. In June, Miss X complained to the Council. School A told the Council it could meet Y’s needs.
36. A few weeks later, there was a review meeting of Y’s EHC plan. At the review, School A said it was not suitable for Y. The Council decided to amend Y’s EHC plan but still name School A.
37. In July, August and September, Miss X chased the Council for the review paperwork.
38. In mid-September, the Council apologised for the delay responding to Miss X’s complaint. It sent Miss X the amendment notice.
39. In October, Miss X chased the Council again for a complaint response. The Council apologised for the delay.
40. In November, the Council sent its complaint response. It apologised for the delay responding to Miss X’s complaint and the delay in the EHC plan process, including the delay sending the amendment notice.
41. Miss X asked the Council to consider her complaint at stage two of the process.
42. A few days later, the Council apologised that Miss X had had to chase for a response about the Council’s consultations with other schools. It said it was still waiting for some responses.
43. In December, the Council said it would not complete a stage two complaint response. It said the SEND Tribunal had decided School A was appropriate for Y. But the Council said it was exploring the possibility of other settings.
44. In January and February 2024, Miss X chased the Council about its consultations with other educational settings. The Council apologised for the delay responding to Miss X.
45. In March, the Council decided School A was not appropriate for Y. It said the plan was for Y to return to education at another school. The Council said it would put provision in place in the interim.
46. In May, the Council sent its stage two complaint response. It accepted that its stage one response was not fair or thorough, and it did not respond to all parts of Miss X’s complaint. It said there were unnecessary delays responding. It found missed opportunities to resolve Miss X’s concerns more quickly.
47. The Council apologised for its complaint handling, including the confusion about whether or not it would complete a stage two response. It offered Miss X £200 for her time and trouble. Miss X did not accept this offer.
48. The Council then met with Miss X. The Council said it was concerned about the lack of provision since Y came off School A’s roll in April. It apologised for how long it had taken to get tuition in place, and apologised for the lack of education.
49. Miss X then complained to the Ombudsman.
50. In July, the Council issued Y’s EHC plan. This plan said Y would attend School B.

Analysis

Annual review delay

51. Miss X complained the Council delayed completing the annual review of Y’s education, health and care (EHC) plan (part a of the complaint).
52. The Council should have issued the amendment notice within four weeks of the review meeting. This would have been at the end of July. The Council sent the amendment notice in September, seven weeks late.
53. This is fault. I find this fault caused Miss X unnecessary and avoidable distress and frustration, and denied her right to appeal. This is injustice.
54. The Council has apologised for the delay but not for the injustice caused by the delay.

Delay issuing the education, health and care plan

55. Miss X complained the Council failed to issue an amended final EHC plan (part b of the complaint).
56. The Council should have issued Y’s final amended EHC plan within 12 weeks of the review meeting. This would have been at the end of September. The Council issued the EHC plan in July 2024, nine months late.
57. This is fault. I find this fault caused Miss X unnecessary and avoidable distress and frustration, and denied her right to appeal the plan. This is injustice.
58. The Council has apologised for the delay but not for the injustice caused by the delay.

Delivering provision

59. Miss X complained the Council failed to deliver the special educational provision in Y’s EHC plan (part c of the complaint).
60. April 2023 to April 2024:
61. Between April 2023 and April 2024, Y was on School A’s roll but not attending school.
62. I am satisfied there was contact between the Council and School A. Up until the review of Y’s EHC plan in late June 2023, School A said it could meet Y’s needs. At the review, the school said it was not suitable for Y. The Council did not agree with the school.
63. The Council said its section 19 duties were not triggered while Y was on School A’s roll (April 2023 to April 2024). The Council said this was because Y was able to attend the school, supported by alternative provision which the school had arranged. The Council said this provision was to ease Y’s transition into School A.
64. Miss X said the school organised provision from September 2023, but between May and July 2023 the school only provided one work pack for Y. I find this shows the school provided an education for Y in the summer term of 2023.
65. The Council said that after the review in June 2023, it satisfied itself that School A was still suitable for Y. It said it considered that the school said it could not meet Y’s needs at the review. However, the Council decided that with some amendments to Y’s EHC plan, School A was still suitable for Y.
66. Miss X agreed that the school provided alternative provision from September 2023. The Council decided that this alternative provision was suitable education available to Y which was reasonably practicable for Y to access. For this reason, it decided its section 19 duties were not triggered.
67. I have considered the way the Council decided its section 19 duties were not triggered from April 2023 to April 2024. I have considered the provision put in place by the school (either school provision or alternative provision) during that time. I have also considered that the provision was to encourage Y’s transition into School A.
68. On balance, the Council does not appear to be at fault. It made relevant enquiries of the school and decided Y had access to a suitable education, along with additional support to support their return to full-time education, and access to additional provision set out in their EHC plan. I therefore find the Council was entitled to decide its section 19 duties were not triggered.
69. April 2024 to June 2024:
70. The Council accepts that it had a section 19 duty to provide Y with alternative provision between April 2024 and June 2024. In this time, the Council kept some provision which the school had put in place, and added tuition which started at the end of May.
71. In a meeting with Miss X in May 2024, the Council apologised for how long it had taken to get tuition in place. It also apologised for the lack of education. The Council told the Ombudsman the delay was in part due to the school holidays.
72. I find fault with the delay implementing alternative provision for Y. The Council’s duty was triggered at the end of March. The additional alternative provision started at the end of May. This is a delay of two months. However, two weeks of this were school holidays during which time we would not expect a council to provide alternative provision.
73. This is therefore a delay of one and a half months (or approximately half a term).
74. Y was not out of school because of exclusion or illness. But it was not reasonably possible for Y to take advantage of the place at School A. This is the reason the Council’s section 19 duties were triggered.
75. This means there was no set timeframe for the Council to arrange provision. However, we expect alternative provision to be arranged as soon as reasonably practicable. I do not consider a delay of one and half months is as soon as reasonably practicable.
76. This is fault. I find this fault caused Y injustice because they missed out on provision. I am satisfied the Council has apologised for this injustice.
77. Y’s EHC plan said they would receive occupational therapy. The Council had a duty to provide this provision.
78. There is no evidence the Council considered whether it needed to provide Y’s occupational therapy between April and June 2024. This is fault. However, given that the EHC plan did not set out the frequency or times of the occupational therapy visits, and it said the occupational therapy work was to be done in school, I find the injustice here is uncertainty to Miss X, not missed provision.

Communication

79. Miss X complained the Council communicated poorly with her (part d of the complaint).
80. Miss X had to chase the Council for updates on various issues such as its consultations with schools, funding for other possible education options, and panel dates. The evidence I have seen shows the Council did not always respond in a timely fashion.
81. I find the Council at fault for its poor communication. I find this fault caused Miss X injustice in that it caused unnecessary frustration and distress.

Complaint handling

82. Miss X complained the Council handled her complaint poorly (part e of the complaint).
83. Miss X complained in mid-June 2023. The Council should have sent its stage one complaint response within ten working days, which would have been the end of June. Miss X chased the Council numerous times for a response. The Council sent its response in November, four months late. This is fault.
84. In November, Miss X asked the Council to consider her complaint at stage two. A few weeks later, the Council said it would not send a stage two response. However, in early 2024 the Council changed its mind. It sent a stage two response in May.
85. There was confusion about whether the Council would send a stage two complaint response. This is fault.
86. The stage two response found that its stage one response was not fair or thorough, and that it failed to respond to all parts of Miss X’s complaint. I agree. This is fault.
87. I find these faults caused Miss X injustice because they caused unnecessary frustration and cost Miss X time and trouble. I am satisfied the Council has apologised for the injustice caused.

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Action

88. Within four weeks of this decision, the Council has agreed to apologise to Miss X in writing for:
• the unnecessary and avoidable distress and frustration, and delayed appeal rights, caused by the delays in the EHC process after the review (parts a and b of the complaint);
• the uncertainty caused by failing to consider whether or not it should provide occupational therapy between April and June 2024 (part c of the complaint); and,
• the unnecessary and avoidable distress and frustration caused by its poor communication (part d of the complaint).
89. 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 its apology.
90. Within four weeks of this decision, the Council has agreed to make a payment of £1150 to Miss X. This is made up as follows
• £400 to remedy the distress, frustration, and lost appeal rights caused by the delay in the EHC plan process (parts a and b of the complaint). Our guidance on remedies sets out a maximum payment of £500 for distress. In this case, I have taken into account the length of delay, the efforts Miss X went to in chasing the Council, and that she wanted to appeal the plan because she felt School A could not meet Y’s needs. I find that a higher-level payment of £400 is appropriate and proportionate for the level of injustice caused;
• £450 to remedy Y’s missed provision (part c of the complaint). In arriving at this figure, I considered Y’s age, school career, needs, vulnerability, and the provision that was already in place. Our guidance on remedies sets out a range of £900 to £2400 per term of missed provision. I consider a low range payment of £900 per term is appropriate and proportionate. Y missed out on half a term of provision. Half of £900 is £450; and,
• £300 to remedy the frustration and distress caused by its poor communication (part d of the complaint) and Miss X’s time, trouble and frustration caused by poor complaint handling (part e of the complaint). I consider £300 is appropriate and proportionate to the level of injustice caused.
• £400 plus £450 plus £300 is a total of £1150.
91. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman