Summary: Miss B complained about the education service provided to her son, C, who has special educational needs. We upheld the complaint, finding some fault by the Council when it delayed arranging a review of C’s Education, Health and Care Plan and in issuing a final plan following the review. This caused injustice as avoidable distress to Miss B and C. The Council has accepted these findings and at the end of this statement we explain what action it has agreed to take to remedy that injustice.

The complaint

1. Miss B complained to us about the Council’s education service. Her son, C, has special educational needs. Miss B complained the Council:

• failed to ensure C had an education placement, or any other education provision in place for the 2024-25 academic year. She said this followed delays in it consulting prospective placements;
• issued C with Education, Health and Care (EHC) plans containing errors;
• failed to engage in proposed mediation.

2. Miss B said as a result C did not receive any education during the 2024-25 academic year. This had a negative impact on his mental health and wellbeing. Miss B said C’s absence from education also caused her distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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. 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)
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 Tribunal in this decision statement.
7. 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)
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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How I considered this complaint

9. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
10. I gave Miss B and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence they provided, before finalising the decision statement.

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What I found

Relevant legal and administrative considerations

11. A child or young person with special educational needs may have an EHC Plan. This sets out the child’s needs and the arrangements needed to meet them.
12. The EHC Plan has sections, including:

• Section B: this describes the child or young person’s special educational needs.  
• Section F: sets out the special educational provision the child or young person will receive. 
• Section G: sets out any health provision the child or young person needs because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section I: this names the education setting a child or young person will attend; or it can name the type of educational placement a child or young person will attend.  

13. 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).
14. A council must arrange to review the EHC Plan at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and any educational placement. A review meeting must then take place. The process only completes 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) 
15. Where the council proposes amending an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and details of the proposed amendments (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Councils must then issue the final amended EHC Plan within a further eight weeks (SEN Code paragraph 9.196).
16. There is a right of appeal to a Tribunal if a parent or young person disagrees with some of the content of a Plan, including Sections B, F and I.
17. Councils must arrange for a child’s parents or the young person to receive information about mediation. This is an informal way to resolve disputes that form the subject of an appeal to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal.
18. A child’s parents or the young person do not have to consider mediation if their disagreement is only about the placement named in section I. Or, if their dispute is about the council not naming any placement in section I.
19. Section 19 of the Education Act 1996 places a duty on LAs to make suitable alternative education for children of compulsory school age who cannot attend school because of illness, exclusion or for any other reason. Compulsory school age ends on the last Friday in June which falls in the academic year in which a child turns 16.

The key facts

20. Miss B complained previously to this office in 2024. In October 2024 we issued a decision which considered the education service provided to C between November 2022, when it first gave him an EHC Plan, and May 2024 when it issued an updated Plan.
21. We found the Council at fault for how it had managed C’s Plan between these dates. We also found it had delayed in offering C alternative provision when, because of his needs, he could no longer attend school. And we found it had delayed in consulting potential post-16 placements.
22. We considered these faults had caused injustice to Miss B and C. We found C had lost education provision and the faults had caused Miss B distress. The Council agreed a series of actions to address this injustice.
23. Given the findings of this previous investigation, I have only investigated events from May 2024, when C received an updated EHC Plan. At the time, C remained in Year 11 of his education, enrolled at a mainstream school, but receiving home tuition.
24. In section I of the updated Plan, the Council said C would attend a further education institution from September 2024. However, it did not name a specific setting.
25. Before it made that decision I noted the Council had:

• in March 2024, consulted a further education college preferred by Miss B and C. However, the college said it could not meet C’s needs.
• in April 2024, consulted a second further education college, which said it could not meet C’s needs.
• in May 2024, consulted three other further education providers, all of whom said they could meet C’s needs. Miss B, and C, declined each of these as unsuitable.

26. In June 2024, following issue of the amended Plan, Miss B asked the Council to provide C with education comprising therapy and a personal assistant. The Council declined, giving reasons. It also explained why it did not support C having further home tuition. It reminded Miss B of her right to appeal the content of the EHC Plan.
27. In July 2024 Miss B approached a mediation service, which contacted the Council in turn. It said Miss B wanted mediation to focus on Section I of the Plan. The Council said that it did not think mediation would result in agreement and so advised the mediator to issue a certificate. The mediator went on to do this before the end of the month.
28. Despite this however, there were later communications where the mediator said Miss B also wanted to discuss C having therapy. The Council interpreted this as a request for provision that would be in Section G of the Plan (health provision). So, it said such a need was not one that it could agree.
29. Miss B complained to the Council at the end of October 2024. She said the Council had failed to ensure C had an EHC Plan in time to begin an education placement in September 2024. She also said a review of C’s Plan was now overdue. And she complained the Council had not taken part in mediation, to ensure C received therapy.
30. In its reply the Council defended the service offered to C since January 2024. It recognised however, it was late in reviewing C’s EHC Plan and said it had arranged this for November. It agreed it would consult again C’s preferred further education college. It had also begun working with C though its “Services for Young People” (SFYP). An officer had discussed work experience opportunities for C, which he declined. It said it would consider supporting further such opportunities.
31. The review of C’s EHC Plan took place in November 2024. The Council kept no record of any discussion. But it sent out proposed amendments to the Plan within four weeks, which envisaged C receiving education in a further education setting. Miss B commented on those before the end of November asking for further amendments. In particular she wanted Section B of the Plan to reflect C’s past experience of education. And later, she asked the Council to amend the Plan to reflect C’s need for therapeutic support.
32. In December 2024, the Council offered support from its advisory teaching team for C and I noted emails in January 2025 where it discussed this further. It also offered to put C in touch with an officer to pursue work experience.
33. I noted Miss B continued to question the support provided to C by the Council and the content of his EHC Plan. She said SFYP did not listen to C’s wishes and questioned comments made to him.
34. The Council agreed to treat Miss B’s concerns as a continuation of the complaint. In its final response, sent at the end of January 2025, it again defended its approach towards providing post-16 education for C. It explained that Miss B could have appealed the EHC Plan issued in May 2024 if unhappy with the content.
35. The Council issued a final amended EHC Plan in February 2025. It then amended this in March 2025, naming the preferred further education placement in Section I from September 2025.

My findings

The scope of my investigation

36. I considered the scope of my investigation limited for two reasons.
37. First, I could not reinvestigate matters previously investigated by this office. I understood Miss B’s grievance the Council did not consult further education institutions sooner and did not issue an updated EHC Plan to C until May 2024. However, we considered these matters during our earlier investigation. We found the Council at fault and that its fault had caused Miss B and C an injustice. We recommended action the Council should take to remedy that injustice, which it agreed and provided.
38. I noted we did not specifically consider the adequacy of the consultation, nor any suggestions made by the Council about which post-16 institution or setting C might attend. However, I could not investigate those matters because Miss B and C had the right of appeal to a Tribunal, if unhappy with the content of the Plan issued by the Council in May 2024.
39. I understood Miss B’s dissatisfaction the May 2024 Plan did not name a specific education institution. Nor did it set out any alternative provision C might receive, outside an education setting. But the law allowed the Council to issue the Plan without naming a specific setting in Section I, as it had found no setting agreeable to both it and C. So, it was for C and / or Mrs B to appeal if they wanted the Plan to name a specific setting or education other than at school.
40. I noted here the Council gave reasons for why it did not support C receiving continued education away from an institutional setting, given his specific needs. I took no view on whether it was correct to take that stance. But considered this dispute of a kind the Tribunal could resolve.
41. So, I considered it outside our jurisdiction, or beyond our powers to investigate, any complaint that went to the content of the May 2024 EHC Plan.
42. I noted Miss B’s further unhappiness the Council would not engage more with the mediator she approached in July 2024. But I could take no view on its actions here either. The Council gave its reasons to the mediator for why it thought mediation would not succeed. That was its right to do so and expect Miss B to proceed to appeal if she wanted to pursue amendment to Section I of the Plan.
43. I did not know if the Council was correct to consider Miss B’s request for mediation to consider any need C had for therapy, as a health need. Therapeutic provision may appear in Section F or Section G of a Plan, depending on the specific need. But in any event, it was again something Miss B could have pursued via an appeal, knowing the Council’s view on mediation.

Findings on matters I could investigate

44. I considered the only matters I could investigate therefore were events from October 2024 to February 2025. The former date was when the Council should have begun a review of C’s EHC Plan. The latter date was when we accepted Miss B’s complaint for investigation.
45. The Council did not review C’s Plan until November 2024, so it was around a month late. Given also, the Council’s knowledge that C was not in any education from September 2024, it could have brought the review forward. I also found the Council kept no clear record of what the review discussed. For these reasons, I found it at fault for the administrative arrangements around the review of C’s Plan.
46. Having held the review meeting late, the Council issued proposed amendments quickly, within the four weeks Government expects. However, the Council was then further at fault for it took more than eight weeks to issue a final amended plan. I considered some of this delay, of around four weeks, probably resulted from the ongoing communication it had with Miss B and trying to resolve her concern about the content of the Plan. But if it could not resolve matters to mutual satisfaction in that time it should have issued the Plan anyway. Miss B could then take up any grievance with the content of Section B, F or I of the Plan as an appeal.
47. The injustice caused to Miss B and C by these delays was that of uncertainty, in not fully knowing the Council’s intentions for C’s education moving forward. And that of frustrating any appeal rights Miss B or C might have wanted to use, if unhappy with the content of the amended Plan. We consider both of these, a form of distress.
48. The Council accepted a recommendation I put forward in my draft decision to remedy that injustice. It agreed to make a symbolic payment, split between Miss B and C, to recognise their distress,
49. I did not consider C’s injustice extended to a further loss of provision. First, I reiterate Miss B and C should have used their right of appeal in May 2024 if they wanted specific provision for C for the 2024-25 academic year.
50. That said, I accepted the November 2024 review opened a new chapter in C’s case. I considered therefore if the Council should have offered more provision to C around the time of the November review or in the months immediately following. I noted that while the Council offered some support, this was not equivalent to a full-time education. Nor was it therefore in line with the content of his EHC Plan.
51. However, against this I balanced that C was no longer of compulsory school age. Also, that C had rejected some of the support on offer via the Council’s SFYP. Further, that when the Council sought to involve specialist teaching to give advice, emails showed Miss B delayed its involvement while C sought support from his GP.
52. I made no criticism of the reasons or motivations of C or Miss B which therefore limited C’s engagement with the Council. But I considered all the above relevant, because on balance I was not persuaded that whatever provision the Council offered C over those five months he could have participated with it. Because I did not consider it realistic that he would have received full time education or equivalent in that time, I could not ask the Council to make a symbolic payment to reflect such a loss of provision.

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Agreed Action

53. To remedy the injustice identified in paragraph 47 the Council agreed that within 20 working days of this decision it would:
1. apologise to Miss B and C, accepting the findings of this investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology agreed;
2. make a symbolic payment of £500 to Miss B and C to be split equally between them in recognition of their distress.
54. The Council will provide us with evidence when it has complied with these actions.

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Decision

55. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss B and C. The Council agreed action that I considered would remedy that injustice. So, I could complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman