Summary: Mrs X complained about the Council’s delay and failure to provide full time education for her son. There was fault, as the Council delayed sending final Education, Health and Care Plans after annual review meetings. And, it did not provide full time alternative provision or Occupational Therapy until the Education, Health and Care Plan was completed. An apology, payment and finalising the Education, Health and Care Plan remedies the injustice to the family.

The complaint

1. The complainant, who I shall call Mrs X, complains there were delays finalising her child (Y’s) Education, Health and Care (EHC) Plan after annual reviews in May 2023 and June 2024.
2. Mrs X also complains the Council did not provide a suitable full-time education from September 2023 onwards when a school place was requested. And, the Council did not provide the provision in Section F of the EHC Plan, including Occupational Therapy (OT), from September 2023 onwards.
3. Mrs X says that Y has missed education and she has been put to considerable trouble due to the poor communication and lack of an updated EHC Plan.

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The Ombudsman’s role and powers

4. 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)
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(i), as amended)
6. 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

Annual review process

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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Mrs X complained about matters from July 2022 onwards. I do not intend to exercise discretion to investigate delay or failure to provide education before May 2023 when the annual review was started. This is over 3 years ago and so I have to consider whether to exercise discretion to investigate this far back. From the information I have, Mrs X made an official complaint to the Council in March 2023 and received a response. The Council upheld her complaints about the Council’s delay in sending a final EHC Plan after the July 2022 annual review and not naming a secondary school place for September 2023. If Mrs X was dissatisfied at this point, she could have continued to pursue her complaint then. I have considered her complaints about the delay in the annual review process from May 2023 until January 2025 when she complained to the Ombudsman.

Educational provision

9. The courts have established that if someone has appealed to the Tribunal, 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)
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. 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. 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
12. Mrs X has complained about educational provision from May 2023 onwards.
13. The information I have all suggests that before May 2023 Mrs X was home educating and she did not request an immediate school place. But, that Mrs X asked about a school place for September 2023, for the secondary school transition. Mrs X did send enquiry emails to a school but there is no evidence of emails to the Council saying that Mrs X wished to stop home educating before the annual review in May 2023.
14. The Council put in place some alternative provision from June 2023 onwards. I have investigated Mrs X’s complaints about the provision of education from June 2023 until 4 December 2023. I do not intend to investigate Mrs X’s complaints about the type of educational provision, number of hours per week or setting from December 2023 onwards. This is because Mrs X received an EHC Plan on 4 December 2023 and with it, the right to appeal to the SEND tribunal if she disagreed with the provision in the plan. Mrs X has complained that the alternative educational provision put in the place by the Council from December 2023 onwards was not full time. I consider that this complaint, along with the complaint about the personal budget for swimming are linked to the content of the EHC Plan and so I do not intend to investigate this, as it was reasonable for Mrs X to have appealed the Council’s decision. This would have resolved her concerns about the content and setting in the EHC Plan and so the educational provision made, including her request for Education Other Than At School (EOTAS).
15. I do consider that the OT therapy in the EHC Plan could have been in place from September 2023 until January 2025 and this can be separated from the matters which could have been appealed to the SEND tribunal. So, I have investigated the provision of OT therapy from September 2023 until January 2025.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

18. A child or young person with special educational needs may have an 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. 
19. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must tell the child’s parents or the young person of their right to appeal the decision to the tribunal.
21. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

2023 annual review

22. The annual review of the EHC Plan was on 30 May 2023. No letter was sent to Mrs X within 4 weeks to say whether the plan was to remain, cease or be amended. This was fault. The Council took over 12 weeks to send the final plan to Mrs X. The plan was sent on 4 December 2023 so it took 28 weeks, a delay of 16 weeks. This was fault. The Council has said the delay was as a result of the parent not agreeing to the draft EHC Plans, but the law is clear that the final plan should be sent in 12 weeks so this delay was fault. Mrs X was not told of her right to appeal to the SEND tribunal until 4 December 2023, although as she did not appeal this did not cause her an injustice.
23. The final EHC Plan did not name an educational placement. Section I was left empty.
24. There is an email from the Council to Mrs X on 30 May 2023. This says that ‘the Council will agree to seek to commission Alternative Provision in the form of a tuition package, with some Community support for 1 hour per week during term time and fund one hour per week term time Mindjam sessions.

Education from June 2023 until July 2024

25. Mrs X told the Council she wanted a school place from September 2023. Previously Y was home educated. There is evidence that Mrs X had visited schools before, but the email of May 2023 from the Council shows that it accepted that she was no longer wanted to home educate.
26. After the annual review, the SEN casework officer emailed Mrs X. She said ‘the Council would rewrite the EHC Plan and then consult with setting. In the meantime the Council would fund one hour per week Mindjam sessions, one hour community support and would commission tuition for Y.’
27. The Council has said it cannot provide any evidence that the provision in section F was delivered from September 2023, until Out of School provision was initiated in January 2024.
28. Mrs X says the Council has funded Mindjam sessions from June 2023 to the present day. Initially Mindjam were only able to offer 30 minutes per week (this was not the fault of the Council) but this was increased to one hour per week in July 2024.
29. The Council has funded a community support worker. This was for 2 hours per week from September 2023 and then for 6 hours per week from January 2024. The Council funded tuition, which started on 15 January 2024. Mrs X says due to a number of issues she stopped the tuition on 29 April 2024. Instead, Y attended a farm provision on 13 June 2024, which increased to 15 hours per week from January 2025.
30. The Council has said it cannot provide any evidence that the OT provision in Section F of the EHCP was provided from September 2023.

2024 annual review

31. Mrs X says at the annual review of 4 June 2024 Y was receiving 22 hours of provision a week. She asked for a personal budget for 1 hour of online art tuition, 1 hour of play therapy and 1 hour of OT. Mrs X says she asked for all of the provision to be written into the EHC Plan as an EOTAS package. Mrs X says she has not received a final plan after the 2024 review at the time of writing this report.
32. The Council has said that it accepts that no final EHC Plan has been sent after the June 2024 annual review. This was fault and has meant that Mrs X was not given a new right of appeal to the SEND tribunal.
33. Mrs X made an official complaint to the Council. The Council replied on 3 January 2025. The Council:
• The Council accepted it had failed to complete the annual review process within statutory timescales.
• The Council apologised for poor communication after Mrs X’s requests for increased provision went to panel. However, it said there was no evidence that panel failed to give full and considerate thought to the requests.
• The Council accepts that the OT provision in Section F of the EHC Plan had not been put in place and said it intended to provide OT by January 2025. But as the EHC Plan had no reference to swimming sessions these requests were declined.
• The Council intended to amend Y’s EHC Plan to show Education Other Than At School (EOTAS) and a personal budget by January 2025. And that tuition/alternative provision had been arranged.
• The Council apologised that it had not provided the responses to school consultations to Mrs X promptly and offered a payment of £250.

Conclusion

34. There has been fault by the Council. There has been poor communication and delay in providing final EHC Plans after annual reviews. However, Mrs X was able to appeal to the SEND tribunal to challenge the provision in December 2023 so I have not investigated complaints about the hours and type of provision from this date, as Mrs X could have challenged this at the SEND tribunal.
35. From June to December 2023, the Council put in place Mindjam and Community support. But the tuition did not start until January 2024 and the OT provision has not been made. (The EHC Plan refers to 18, 45 minutes sessions per year direct OT provision.) So, I consider a remedy for the loss of provision during this period is due. Our guidance on remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
36. As the Council had put in place some tuition, I consider a remedy of £1500 for June to December 2023 for failure to provide the full time education is appropriate. And a payment of £2000 for the lost OT provision from January 2024 until January 2025. The Council has already offered Mrs X £250 for her distress and inconvenience but I consider another £250 is in line with the Ombudsman’s remedy guidance, to make a total of £500.
37. I have not made service improvement recommendations as the Council has shared with us a recent SEND improvement plan (January 2025) and most of Mrs X’s complaint pre-dates this.

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Action

38. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mrs X. 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.
• Pay Mrs X £3750 (and the £250 offered in its original complaint response if it has not already done so).
39. Within two months of the date of the decision on this complaint the Council should (if has not already done so):
• Carry out an annual review meeting for the EHC Plan for 2025. (The final EHC Plan should be sent to Mrs X after the review meeting within the statutory timescales to ensure that she has a new right of appeal to the SEND tribunal.)
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I have completed my investigation and this complaint is upheld. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman