Summary: Ms F complained about the Council’s handling of the Education, Health and Care plan process for her son (X) since 2018 and his education. We found fault by the Council for failing to adhere to the statutory process and timescales, ensure X received the education he was entitled to, and how it communicated with Ms F. We did not investigate parts of the complaint as these were late. The Council should apologise and make payment to acknowledge the injustice it caused.

The complaint

1. The complainant, Ms F, complained about the Council’s handling of the Education, Health and Care (EHC) plan process for her son since 2018. She said it:

• failed to complete annual reviews before November 2022;
• completed an annual review in November 2022 but failed to follow the statutory process to include her and issue the final amended EHC plan with the required timescales;
• alleged to have shared X’s final amended EHC plan in July 2023 but there is no evidence she or X’s school received it. When she received a copy of the plan in March 2024 she found it not fit for purpose and believe it was made up;
• failed to arrange an annual review within required timescales in 2023, and when it held an emergency review in early 2024 it caused delays in the EHC plan process and failed to properly assess X’s needs;
• communicated poorly with her during the process.

2. Ms F also said the Council failed to act when X had suspensions from his school in late 2023 and it caused delays to put alternative provision in place when he was permanently excluded from his school in early 2024. She said the provision it put in place was not full time and she wrongly had to accompany X.
3. Ms F said, as a result, she and X experienced distress and uncertainty, and she had time and trouble to get the Council to address her concerns. In addition, X had a loss of education and Ms F had to take time off work to support X in receiving his alternative provision.

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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. 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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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)

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What I have and have not investigated

9. Ms F’s complaint relates to the Council’s handling of her son’s education since 2018. This is more than 12 months before she brought her concerns to our attention. Part of her complaint is therefore late.
10. I have found it appropriate to exercise my discretion to investigate Ms F’s concerns from November 2022 when an emergency annual review took place. This is because she complained to the Council in Summer 2023 and has continued to raise her concerns since.
11. I have therefore not investigated her concerns about matters prior to November 2022. I have also not investigated Ms F’s concerns about;
• events which took place after her 2024 complaint to the Council, as this was not part of her initial complaint to the Council;
• any disagreement about the contents or suitability of X’s November 2024 EHC plan as such concerns carries appeal rights to the SEND Tribunal; or
• the council decision to refuse an EHC needs reassessment for X as this decision could be appealed to the SEND Tribunal.

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How I considered this complaint

12. I considered evidence provided by Ms F and the Council as well as relevant law, policy and guidance.
13. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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 found

Education, Health and Care plans

15. 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. 

Reviewing EHC plans

16. 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) 
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
18. 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.

Reassessments of EHC Plans

19. 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.
20. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
21. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Appeal rights

22. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• description of a child or young person’s SEN, 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.

23. 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)

Council’s complaints policy

24. The Council’s policy sets out how it will consider complaints. It has a two-stage process and aims to respond to:
• stage one complaints within 10 working days; and
• stage two complaints within 28 working days.

What happened

25. In 2018 Ms F and her sone (X) lived in another council’s area. X had an EHC plan which set out his special educational needs and the support he should receive in his school. The family moved to the Council’s area in late 2018 and X started a new school.
26. In late 2022 an annual review of X’s EHC plan was held. Ms F and the Council attended. It was agreed amendments were needed for his EHC plan, partly as X was transitioning to a secondary school (School Y) in September 2023.
27. X started School Y in September 2023 but struggled in the school and environment. He had temporary exclusions due to behavioural issues in the Autumn. Amendments to X’s timetables and a behaviour improvement plan were put in place, but the school did not seek support for the Council.
28. In early 2024 an incident occurred with X, which resulted in School Y permanently excluding him. The Council was informed.
29. An emergency annual review was held in February 2024, which showed X had largely attended school and the adaptions it had made. Ms F asked for the Council to provide alternative provision for X and to complete a reassessment of his needs.
30. Ms F said she also found out X’s final amended EHC plan following the November 2022 annual review was not shared with School Y or herself. The Council said it was finalised in July 2023.
31. The Council started arranging tutoring and arranged for X to receive 1:1 tutoring two hours per day five days a week. This was in a community setting and the Council told Ms F she had to be present due to safeguarding concerns raised by the tuition provider.
32. Ms F asked the Council to provide 2:1 tutoring as she would have to work and could not always be there with X. However, the Council did not agree. The 1:1 tutoring started in March 2024. It also consulted with schools in an attempt to secure a placement.

Ms F’s complaint

33. In March 2024 Ms F complained to the Council about how it had handled X’s education and EHC plan process since she moved into its area in 2018. This included:
• its handling of the EHC plan process before the annual review in November 2022. She said no annual reviews had taken place and no new EHC plan was issued;
• delays to finalise X’s final amended EHC plan since November 2022. She said the plan was not shared with her or School Y, she had not been involved in the process, and she did not believe the plan was made at the time and was a copy of X’s initial EHC plan. She also disagreed about some content and accuracy of the plan;
• it had failed to act when X had exclusions from School Y and it caused delay in providing alternative provision when he was permanently excluded;
• it failed to provide X with full-time alternative provision and wrongly required her to be present when he needed 2:1 support which impacted her work. She also said X could not engage fully with the two hours made available per day;
• it was again failing to adhere to the statutory process and timescales for the EHC plan process following the February 2024 emergency annual review. This included the review was late and she did not receive the paperwork or the draft EHC plan as required;
• it had failed to respond to her requests and concerns, and continued to communicate poorly with her; and
• she again requested for X to be reassessed as she believed his special educational needs had changed and no assessment had taken place since 2017.
34. The Council provided its initial complaint response in April 2024. Ms F remained dissatisfied and asked it to escalate her complaint.
35. In June 2024 Ms F chased the Council as it had not provided its final response. It said it would provide this in a week.
36. Three weeks later, the Council provided its final complaint response. The Council upheld most of Ms F’s complaint. It said it had:
• no evidence it had communicated with Ms F or reviewed X’s EHC plan as required before November 2022 including when the plan was transferred from the previous council;
• held the annual review in November 2022, but accepted it had not informed Ms F about the process and statutory timescales had not been adhered to. It said its record showed draft and final EHC plans were issued in Summer 2023 but there was no evidence this was shared with Ms F;
• held X’s annual review in February 2024, but accepted this was not within the 12 months required and the draft plan was issued late. However, any concerns about the content of the plan would be for the SEND Tribunal to consider; and
• arranged alternative provision for X in March 2023, but accepted this exceeded the six-day deadline by four weeks and X had a loss of education as a result. It explained its standard offer of alternative provision is two hours per day as the tuition is more intense than a classroom setting, but it accepted it had no evidence this was explained to her.
37. The Council apologised for its failings and the injustice these caused. It considered the Ombudsman’s Guidance on Remedies and proposed a payment of £1,900 to acknowledge the avoidable distress, loss of education, and loss of appeal rights.
38. The Council also set out several service improvement it intended to make as a result of the complaint. This included:
• reviewing its process to identify children or young people whose annual review are due to minimise the risk of anyone being overlooked;
• ensuring proper records are kept on its system to ensure audit trails of communication;
• issue reminders to staff around the importance of adhering to the EHC plan process and keeping records in a timely manner;
• ensure clear communication with parents regarding alternative provision and reasons for reduced hours of education; and
• develop a policy regarding children being accompanied to alternative provision, and ensure parents are informed of the process.
39. Ms F was not fully satisfied with the Council’s response and asked the Ombudsman to consider her complaint. She said this was partly because there were ongoing issues regarding X’s school placement for the 2024/2025 academic year, X’s final amended EHC plan had not yet been issued, and her reassessment request of X had been refused.
40. X started his new school placement in October 2024 and the Council issued his Final amended EHC plan in November 2024.

Analysis and findings

41. The Council has accepted fault on most part of Ms F’s complaint and apologised. It has proposed remedies to acknowledge the injustice this caused, and service improvements to address its failings.
42. I have considered the Council’s handling of X’s education and Ms F’s complaints. I agree with its findings of fault for:
• causing delays in the statutory EHC plan process for X following the annual reviews in November 2022 and February 2024. This included failing to conduct, or be able to show evidence of, annual reviews every 12 months, issuing paperwork and involving Ms F in the process, and issuing draft and final EHC plans within required timescales;
• failing to properly communicate, and keep records of actions or communication; and
• failing to provide X with alternative provision within six days of his permanent exclusion and properly informing Ms F why two hours of provision was in its view considered a full-time education.
43. I have considered other points of Ms F’s complaint or matters which has come to my attention.

The Council’s Summer 2023 final amended EHC plan

44. The evidence shows X’s school did not receive this plan and Ms F said she did also not receive it. The Council was unable to show the plan was shared and I have not seen evidence when it was created.
45. I found the Council therefore failed to complete the EHC plan process since the annual review in November 2022 until X’s final amended EHC plan was issued in November 2024. This is because X’s school did not have the plan, X did not benefit from the content which should have been amended, and Ms F was not properly involved in the process and could not dispute its content.
46. The Council was therefore at fault for causing significant delays to complete the EHC plan process for X for 24 months, which resulted in a loss of opportunity for X to receive an education he could better engage with. Ms F experienced distress, uncertainty and a loss of appeal rights.

Alternative provision

47. While the Council accepted fault for its delay in arranging X’s alternative provision and how it explained a full-time education to Ms F, I have considered the two-hours of daily 1:1 tuition it put in place for X and whether this amounted to a full-time education. Including whether the Council should have done more when X had temporary exclusions.
48. The evidence shows X was attending school in the Autumn term of 2023 and the school did not seek support from the Council. It was therefore not fault by the Council for not becoming more involved or providing alternative provision around the time he had temporary exclusions.
49. I accept the Council’s view 1:1 tuition, or small group session, is more intense and therefore amounts to more education compared to class-based learning. The 10 hours of provision per week available to X can be considered a full-time education, but this will always depend on individual circumstances and what a child or young person is able to engage with.
50. I found the Council had considered X’s needs and the 10 hours of provision was acceptable. While this is unlikely to be a full-time education, it was what the Council found X was likely to be able to engage at the time. I also noted it agreed to changes in the start time to improve X’s ability to engage. I have therefore not found fault in the amount of provision it initially made available to X.
51. However, I found the Council at fault for:
• failing to properly consider Ms F’s request for 2:1 provision. This is because she consistently said she was unable and unwilling to continue to attend and it was the tuition company which set the requirement due to its safeguarding concerns. As I have seen no good reason why the 2:1 tuition should be refused, this should have been put in place from the outset; and
• failing to keep X’s alternative provision under review and consider other support or changes which may have been appropriate to put in place. This may have included provision other than tuition or a different type of setting to increase his ability to engage with the provision.
52. I cannot say how much provision X could have engaged with, or whether 2:1 provision would have improved his ability to engage. However, I am satisfied the Council’s faults caused a missed opportunity for X to receive more, or more suitable alternative provision. I am also satisfied Ms F experienced frustration and spent time to support X’s attendance for the tuition sessions.

Complaints handling

53. The evidence shows the Council took longer than set out in its policy to respond to Ms F’s complaints at stage one and significantly longer at its stage two.
54. While I acknowledge the Council was working on X’s EHC plan at the time, this should not delay the complaints process. This was therefore fault, which caused a delay of around two months. I am satisfied this caused Ms F some additional distress and uncertainty.

Injustice

55. I have considered the Council’s apology and proposed remedies to be well considered and in line with our Guidance on Remedies. However, I am not satisfied these are enough when also considering my additional findings above.
56. In addition to its proposed £1,900 payment for the distress, uncertainty, loss of appeal rights, and a loss of education for X, the Council should:
• pay Ms F £150 to acknowledge the distress and uncertainty its delayed complaints handling caused her; and
• pay Ms F a further symbolic payment of £400 to acknowledge the distress and frustration she had to attend X’s tuition sessions when 2:1 tuition should have been in place.
57. I found the Council’s service improvement recommendations to be well considered and appropriate. I have therefore only made recommendations for my additional findings and for it to provide an update on the progress of its actions.

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Action

58. To remedy the injustice the Council caused to Ms F and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms F to acknowledge the injustice its faults caused her and 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.

2. pay Ms F a £1,900 to acknowledge the the distress, uncertainty, loss of appeal rights, and a loss of education for X as proposed in the Council’s complaints response;
3. pay Ms F a further symbolic payment of £400 to acknowledge the distress and frustration she experienced to be required to attend X’s tuition sessions; and
4. pay Ms F £150 to acknowledge the frustration, time and trouble she had to pursue her complaint as a result of the Council’s delayed complaints handling;

In total the Council should pay Ms F £2,450.

59. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4.  
5. share with the Ombudsman an update on its proposed service improvements relating to reviewing its process to ensure annual reviews are actioned, appropriate record keeping is maintained, staff training on the statutory process from Education, Health and Care plans, managing expectations of parents around full-time alternative provision, and a new policy for children being accompanied to alternative provision; and
6. remind its complaints handling staff to adhere to the timescales set out in the Council’s Corporate Complaints Policy, and in circumstances where responses are delayed, complainants should be informed and new reasonable timescales should be provided.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault by the Council causing an injustice to X and Ms F. The Council should apologise and make payment to acknowledge the impact its fault had on them.

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Investigator's decision on behalf of the Ombudsman