Summary: Miss X complained about how the Council managed her child, Y’s, education and their Education, Health and Care (EHC) Plan. The Council was at fault. It delayed Y’s EHC needs reassessment, did not complete one of Y’s annual reviews, initially did not consider its section 19 duty, did not provide all Y’s Section F provision and delayed issuing Y’s EHC Plan. This caused Miss X an injustice and Y was not provided all the educational provision they were entitled to. The Council will apologise and pay £6,300 to acknowledge Y’s missed education and provision and a symbolic payment of £800 to Miss X. The Council has already put in place actions to improve its service.

The complaint

1. Miss X complained the Council:
1. failed to provide her child, Y with suitable education since March 2022 and insufficient tuition and did not secure all their Section F provision;
2. delayed completing Y’s Education, Health and Care (EHC) needs reassessment;
3. delayed completing one of Y’s annual reviews;
4. delayed amending Y’s EHC Plan;
5. did not discuss or put in place a new school placement for Y;
6. communicated poorly; and
7. delayed providing complaint responses.
2. Miss X said it caused her distress which affected her mental health and Y was not provided education to which they were entitled.

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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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
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 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)
8. 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)
9. 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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What I have and have not investigated

10. As explained in paragraph 4 above we cannot investigate late complaints unless we decide there are good reasons. Miss X complained to the Ombudsman in early October 2024 about events starting in March 2022. Part of the complaint is late and there are no good reasons to exercise discretion to investigate events going back to March 2022.
11. In relation to the Council’s section 19 duty, point 1a) above, I have investigated between January 2023 when the Council was aware Y was not attending school and late July 2023 when it put in place tuition for Y.
12. In relation to Y’s section F provision, point 1a) above, I have investigated between January 2023 when the Council was aware Y was not attending school and July 2024.
13. In relation to the annual review, point 1c) above, I have investigated between January 2023 and December 2023 when a decision letter was issued and Miss X had appeal rights to the special educational needs and disabilities (SEND) tribunal.
14. In relation to complaints handling, point 1g) above, I have investigated between April 2023 when Miss X first complained to the Council and late September 2024 when the Council issued its stage 2 response. In relation to the communication point 1f) above I have considered between January 2023 and September 2024. I have also considered the delay in amending Y’s Education, Health and Care (EHC) Plan, point 1d) above and the reassessment delays, point 1b) above and the remedy offered by the Council.

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How I considered this complaint

15. I considered:
• the information Miss X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

17. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. Section F sets out the educational provision needed by the child or young person and section I sets out the name and/or type of school.

Appeal rights to the SEND tribunal

18. There is a right of appeal to the special educational needs and disabilities (SEND) tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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.
19. The courts have established that if someone has appealed to the SEND tribunal or reasonably could have done so, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. If the parent or young person does not appeal but should have, then the period we cannot investigate ends when the Council makes another appealable decision.

Maintaining the EHC Plan

21. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of 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).

Section 19 duty

22. Council’s 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
24. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022. We made recommendations which included that councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Reviewing EHC Plans

25. 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 complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
26. Council’s can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted within the statutory timescales.
27. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).
28. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. The Council should issue an amended plan within eight weeks of its notice to the parties that it proposes to amend the plan.

Reassessments of EHC Plans

29. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
30. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Council complaints procedure

31. The Council’s complaints procedure is as follows:
• at stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days; and
• if the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

32. Y has special educational needs that affect the way they communicate and manage social situations.
33. Y’s first Education, Health and Care (EHC) Plan was issued in Spring 2020 and section I named a type of setting as specialist maintained provision. The Council issued Y’s final amended EHC Plan in Summer 2020 which named a specialist maintained provision school, School 1 to start in September 2020. The key parts of section F in this Plan included:
• access to a play intervention for 30 minutes a week to develop a trusting relationship with a key adult;
• structured phonics literacy programme with a key adult for 10 minutes daily; and
• anxiety support with a key adult for 30 minutes weekly.

Background

34. In December 2021 the Council agreed to carry out Y’s EHC needs reassessment. Y stopped attending School 1 in March 2022. Miss X, Y’s mother said Y did not attend School 1 because Y either would not go to school or not get out of school transport and not enter the school building and they would return Y home to her.
35. In Summer 2022 the Council issued Y’s draft EHC Plan as part of Y’s needs reassessment process. Miss X said the Council did not complete the reassessment.
36. In early December 2022 School 1 held Y’s annual review. A discussion was held around Y’s poor attendance at School 1 because of their severe anxiety. It was recommended that Y’s EHC Plan was amended and a new educational placement was explored for Y, closer to their home. In mid-January 2023 the Council received the paperwork from Y’s annual review. The Council said in mid-January 2023 it was first aware Y was not attending school.

Mid-January 2023 onwards

37. After the Council received Y’s annual review paperwork in mid-January 2023 it did not send Miss X a decision letter on whether it would cease, maintain or amend Y’s EHC Plan. The Council did not complete the annual review process. The Council said it was an oversight.
38. Between mid-January 2023 and the end of the academic year in late July 2023 Miss X and the Council said Y did not receive any education. In response to my enquiries the Council said it could not give an acceptable explanation for this, it said no casework was completed and it failed to consider its section 19 responsibilities between January and July 2023 and it said Y did not receive their section F provision in this period.
39. In March 2023 Miss X contacted the Council asking for an update on Y’s change of placement request following the last annual review. The Council did not respond.
40. In late April 2023 Miss X made a stage 1 complaint to the Council. She said Y had not attended school for a year. She said three new schools were being considered for Y but the Council had not given her an update on a school placement. Miss X said she and School 1 chased the Council several times for a stage 1 response but did not receive a response.
41. In early May 2023 Miss X contacted the Council for an update. In mid-May 2023 the Council contacted Miss X and apologised for the delay in drafting Y’s EHC Plan following the reassessment, confirmed Miss X’s choice of schools and said Y’s EHC Plan would be drafted as soon as possible.
42. In late June 2023 the Council issued Y’s draft EHC Plan and emailed it to Miss X as part of Y’s needs reassessment process and apologised again for the delay. Miss X agreed with Y’s draft Plan. The same day the Council contacted three special schools. By late June 2023 all the schools contacted said they could not provide suitable provision for Y. The Council spoke to Miss X about school transport options for Y.
43. In late July 2023 the Council spoke to Miss X about alternative provision. The Council made a referral to its own tuition service for those pupils out of school because of exclusion or otherwise and arranged Y to receive home tuition starting in September 2023.
44. Y started to receive two sessions of home tuition, HT1, a week with a one-to-one tutor. During the Autumn 2023 term this was increased to three sessions a week and Y was offered 31 sessions and attended 21 sessions which lasted on average between 30-45 minutes per session. In response to my enquiries the Council said between September 2023 and July 2024 Y received as much home tuition as Y could manage, which was kept under review and amended as needed.
45. In early November 2023 Miss X contacted the Council asking for an update on Y’s school placements. Council officers discussed this and Y’s reassessment but did not respond to Miss X.
46. In late November 2023 Y’s annual review was held. It noted Y was on roll at School 1 but was not attending and was receiving home tutoring with HT1. The review said Y had 86% attendance in Term 1 and 50% attendance in Term 2 when the tutoring increased from two sessions to three. The annual review recommended to maintain Y’s EHC Plan and explained Y was still waiting for a new educational placement.
47. In late December 2023 the Council issued Miss X with a decision letter to maintain Y’s EHC Plan. It also gave Miss X her appeal rights to the SEND tribunal which she did not exercise.
48. In January 2024 Y continued to receive HT1 provision and was offered 10 sessions between early January 2024 and February 2024. In early February 2024 the Council issued Y’s final amended EHC Plan. At the same time it sent Miss X its decision letter and gave her appeal rights to the SEND tribunal which she did not exercise. The Council said the delay in issuing this Plan was because of difficulties finding Y a suitable school place. The Plan did not name an educational placement it just named a special school setting. Section F included the following key provisions for Y:
• specific work on friendships and social interaction skills to include 30-40 minutes per week in a small group setting and 2-3 times per week for social interaction intervention by a key adult.
• support Y to increase ability to focus, 30 minutes daily; and
• emotional literacy programme to develop emotional understanding and regulation skills, 45-60 minutes weekly.
49. In response to my enquiries the Council said the social interaction provisions in the final amended Plan were not secured through the HT1 provision. It said no further alternative arrangements were put in place to support Y’s communication and social interaction between February 2024 and July 2024. The Council and Miss X also said Y did not receive any HT1 provision for six weeks when Y’s tutor was on sick leave for half a term between February and late March 2024.
50. In late April 2024 the Council responded to Miss X’s stage 1 complaint. The Council:
• apologised for the 12-month delay in responding to her complaint and offered £300 to acknowledge the frustration and uncertainty caused;
• accepted there had been a 21-month delay in completing Y’s EHC needs reassessment. It acknowledged the delay was significant and was unacceptable because it delayed Miss X’s right of appeal to the SEND tribunal. The Council offered £500 to acknowledge the avoidable distress and inconvenience;
• said it was aware in mid-January 2023 Y was not attending School 1 when it received Y’s annual review paperwork. It apologised to Miss X for the delay in arranging Y’s interim home tuition, which started in late July 2023. The Council offered a remedy of £1,800 (£300 per month) between mid-January 2023 and late July 2023 for Y’s missed educational provision;
• said it issued Y’s final amended EHC Plan in early February 2024 stating a special school in section I. It said it had not secured an appropriate special school for Y as it had not found one that could meet need and had space; and
• said HT1 would continue until an appropriate school was found for Y and it would continue to monitor Y’s HT1 provision and review Y’s academic progress.
51. In early May 2024 Miss X escalated her complaint to stage 2 of the Council’s complaints process. She also raised new concerns about the time taken to respond to her stage 1 complaint, Y’s educational level regressing, only receiving two hours of tuition a week and Y missing 12 hours of education because the tutor was on sick leave and an alternative tutor was not provided.
52. In early July 2024 the Council issued an amended final EHC Plan for Y which named a special school, School 2 from September 2024 onwards. The decision letter also gave Miss X her appeal rights to the SEND tribunal which she did not exercise. Y started to attend School 2 in September 2024.
53. In late September 2024 the Council sent its stage 2 response to Miss X. It said:
• it apologised for the delay in responding to Miss X’s stage 1 complaint which was because of a backlog of SEN complaints. It said it was continuing to address the backlog with the SEN team in line with actions recommended by the Ombudsman;
• the number of hours received by one-to-one tuition did not equate to hours received in the classroom and it offered 10-12 hours per week but the tuition provider would carry out an assessment and provide the amount of provision appropriate for Y which was reviewed regularly and increased when necessary; and
• it was satisfied with the stage 1 complaint and the remedy offered which was in line with the Ombudsman remedy guidelines.
54. Miss X remained unhappy and complained to us.

My findings

55. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.

Reassessment delays

56. The Council made a decision in late 2021 to complete Y’s reassessment. The Council should have completed the review within 14 weeks of its decision and by March 2022. The Council did not issue Miss X with a decision letter until after Y’s annual review in December 2023 which decided to maintain Y’s EHC Plan. This was a delay of 21 months and was fault. The Council has already accepted in its complaint responses the delay caused Miss X distress and delayed her right of appeal to the SEND tribunal and offered Miss X £500. This was a suitable remedy for the injustice caused.

Delay in issuing Y’s EHC Plan

57. The Council held Y’s annual review in December 2022 but did not issue a decision notice on whether it would maintain, amend or discontinue Y’s EHC Plan or update Miss X. This was fault and caused Miss X frustration, distress and uncertainty.
58. Y’s next annual review was held in late November 2023. The Council sent a decision letter to maintain Y’s EHC Plan in December 2023 which was within four weeks of the annual review and in line with the statutory timescales and so there was no fault in its action. Miss X was given her appeal rights to the SEND tribunal but did not exercise them. In line with paragraph 7 above Miss X could have appealed to the SEND tribunal about Y’s educational placement from December 2023. I therefore have not investigated this matter further because it would have been reasonable for Miss X to have used her right of appeal on this matter.

Section 19 and section F provision January 2023-July 2023

59. The Council was aware in mid-January 2023 Y was not attending School 1 and was not receiving any education and Y was not provided their section F provision which continued until late July 2023. The Council did not consider its section 19 duty in this period. The Council said it could not give an acceptable explanation for this and it said no casework was completed in this period. The Council’s failure to ensure Y received an education and its failure to ensure Y received their special education provision was fault and meant Y did not receive education to which they were entitled. It caused Miss X uncertainty about what would have been provided if the Council had considered its section 19 duty. The Council offered a remedy of £1,800. Given Y did not receive any education or section F provision it is considered the remedy offered was too low and the Council has agreed to a new action set out below. The Council met its section 19 duty in late July 2023 when it organised Y to receive home tuition from September 2023.

Section F provision September 2023 – early February 2024

60. From September 2023 the Council put in place home tuition, HT1 when Y could not attend School 1 which was appropriate. The Council records show Y started with two sessions a week which was increased to three sessions a week and was regularly monitored and amended to reflect Y’s needs. Y’s section F provision was also provided in this period and the Council acted in line with our guidance on alternative provision as set out above in the relevant law and guidance section and section 42 of the legislation and was not at fault.

Section F provision early February 2024 to July 2024

61. In early February 2024 the Council issued Y’s amended EHC Plan which included new section F provision including specific work on friendships and social interaction skills. Y was still receiving HT1 provision at this time with one-to-one provision with their tutor. Y did not interact with peers and was not provided with friendship and social interaction skills which was fault and meant Y was not provided this provision between early February 2024 and July 2024. Y also missed six weeks of education and section F provision when their tutor was ill. Alternative provision was not put in place which was fault and meant Y was not provided education to which they were entitled.

Communication and complaints handling

62. In the period between January 2023 and September 2024 there were times when the Council did not respond to Miss X’s update requests, this was fault and caused Miss X frustration and avoidable time and trouble.
63. The Council delayed by 11 and a half months responding to Miss X’s stage 1 complaint and delayed by 3 and a half months responding to her stage 2 complaint. The Council has already apologised for its poor complaints handling and offered Miss X £300 for her frustration and avoidable time and trouble. This was an appropriate remedy for the injustice caused.

Service Improvements

64. The Ombudsman has already made service recommendations to this Council on similar cases including producing an action plan on meeting EHC statutory timescales, reviewing its EHC Plan annual review procedure and delays, reminding staff about effective communication, reviewing its section 19 and section 42 policies and duties, reviewing its reassessment staff guidance and reflecting on complaint handling delays. These service improvements have been made during and since the events in this investigation. On this basis no further recommendations were needed.

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Action

65. Within one month of the final decision the Council will:
1. if it has not already done so apologise and pay Miss X a symbolic payment of £500 to acknowledge her distress and delayed right of appeal to the SEND tribunal when it delayed Y’s needs reassessment process and for Miss X’s frustration, distress and uncertainty when it did not complete Y’s annual review process;
2. if it has not already done so pay Miss X a symbolic payment of £300 to acknowledge her frustration and avoidable time and trouble for the delayed complaints handling and apologise for Miss X’s frustration and avoidable time and trouble because of its poor communication; and
3. apologise and pay Miss X £6,300 to acknowledge her uncertainty, education and provision Y did not receive between mid-January 2023 and July 2023, and Y’s lost section F provision between early February 2024 and July 2024. This remedy was calculated in line with the Ombudsman’s guidance on remedies and considered Y’s circumstances at the time.
66. The Council will provide us with evidence it has complied with the above actions.

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Decision

67. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused. The Council has already taken actions to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman