Summary: Mrs X complained about the Council not delivering specialist services outlined in her daughter’s Education, Health and Care Plan since June 2021. We found fault because the Council failed to deliver suitable education. Mrs X has suffered avoidable frustration and distress in getting the issues resolved and her daughter missed some of the education she should have received. To remedy the injustice caused by these faults, the Council has agreed to apologise, make a payment to Mrs X and provide guidance to relevant officers.

The complaint

1. Mrs X complains the Council has failed to provide her daughter, Y, with specialist services included in her Education, Health and Care Plan (EHCP), on a full-time basis, since June 2021. She also complains about how the Council has handled her complaints about the matter.
2. Mrs X says this has caused distress, frustration and that her daughter has missed out on provision she is due. She also says this has impacted the mental health of Y and the family as a whole.

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What I have and have not investigated

3. Paragraph seven (below) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to the summer of 2021. The issues Mrs X complains of linked to EHCP provision began at this time and it is reasonable to include this period in my investigation.
4. I have also exercised discretion to investigate the period of time after Mrs X was advised of her EHCP appeal rights. The Council said at the same time that it would seek a new school for Y, so Mrs X chose not to exercise her right to appeal. I find this reasonable given the circumstances.

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The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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)
10. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
11. 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

12. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

14. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person.  
15. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
16. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Appeal rights

17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. 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 EHCP has been issued.

Timescales and process for EHCP assessment

18. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

Alternative provision

General section 19 duty

19. 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. [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 (S19) or alternative education provision.

Inability to attend due to health needs

20. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
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’)

Focus report

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.
25. We made six recommendations. 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;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

26. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

Part-time timetables

27. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.

What happened

28. I have set out below a summary of the key events. This is not meant to show everything that happened.

EHCP annual review mid-July 2021

29. Mrs X has a daughter, Y, who has an EHCP which was first finalised in July 2020. Y’s EHCP named an independent special school. Y has SEN and multiple diagnoses.
30. At the end of November 2020, Y started at the school named in the EHCP (the school).
31. Mrs X says that by February 2021, Y had begun to find attending the school increasingly difficult for a variety of reasons.
32. In the middle of June 2021, Y took two overdoses on consecutive days. Both of these required a hospital visit.
33. Following this, Mrs X says the school placed Y on a part-time, half-day timetable. The school advised the Council of this towards the end of June 2021.
34. In mid-July 2021, an annual review of Y’s EHCP was held. The school agreed to create a package of alternative education outside of what it could offer which the Council would need to agree on. Mental health professionals questioned the suitability of the existing school, so the Council agreed to look for a new placement.
35. In mid-August 2021, the Council then sent its decision letter to Mrs X completing the annual review. In this letter:
1. it advised it was not able to accept the recommendations within the annual review report and considered that no changes were required to the EHCP;
2. it said this was because the proposed package of alternative provision (AP) was not Ofsted registered and that the school would be able to suggest other alternative provisions;
3. it also said that in reviewing the paperwork, it did not consider there was a significant change in the need or provision so would not be updating the EHCP or completing a reassessment. The Council advised Mrs X of her appeal rights;
4. in the same letter, the Council agreed to seek a new school place for Y.
36. Mrs X chose not to exercise her appeal rights as the Council agreed to look for a new school.

Alternative provision

37. After the Council had sent the annual review decision letter, Mrs X sent it an email. She asked what the process was for naming a new school and what was happening with plans for AP as school was re-starting in two weeks’ time at the beginning of September 2021.
38. Early in September, mental health professionals and the school asked the Council what was happening about AP for Y.
39. By the middle of September, Mr X had registered a complaint with the Council about the lack of progress.
40. In mid-October 2021, the Council agreed a 12-week package of AP to last until January 2022, whilst it tried to find Y a new school.
41. The agreed AP package was three days per week at an AP provider with the remaining two days per week covered by tutoring at home.
42. When she began attending the AP provider, Y struggled to engage with how it was set up, as this had changed since she had previously attended there. Records show she attended from mid-October to mid-late November 2021. Y did not attend the provision again before it officially ended in January 2022 as she felt unable to do so.
43. Records also note the AP provider instead offered to deliver provision at home when Y stopped attending. Mrs X says this was not the case, but that Y would not have viewed this as a suitable alternative regardless.
44. The two days of tutoring proposed as part of the AP package never began.
45. The Council became aware Y was not attending the AP provider when the school advised this at the end of the first week in December 2021. Shortly after this and still in December 2021, the Council held a review meeting with Mr and Mrs X to discuss the plan going forward.
46. In mid-December 2021, tutoring to start in January 2022 was agreed. The plan in place delivered one hour per day, with a view to increasing this to two hours per day as and when Y felt ready.
47. By the beginning of January 2022, the Council had still been unable to organise a new school for Y. Mrs X says she and Y made exploratory visits to two settings around the same time. Nothing further came of either of these visits.
48. Tutoring began as agreed. Mrs X told me two tutors had originally been organised for Y but when this arrangement did not work, it was stepped down to a single tutor. Tutoring hours later increased to up to 2.5 hours per day dependent on whether Y felt she was able to access that amount. Tutoring continued throughout 2022.
49. In the first half of June 2022, discussions were held as to whether Y should receive Education Other Than at School (EOTAS) as the named provision in the EHCP.
50. At the beginning of November 2022, the Council received medical evidence that Y would be unable to access another specialist school.
51. In the middle of November 2022, the Council agreed for Y to receive an EOTAS package which would run until September 2023. This would cover her time until what would have been the end of Year 11.
52. Mrs X received the first direct payment for this at the end of February 2023.

School consultations

53. At the EHCP annual review meeting in July 2021 and in its decision letter in August 2021, the Council said it would seek to find Y a new school placement.
54. After the Council had sent the annual review decision in August, Mrs X sent it an email to ask what the process was for naming a new school as school was re-starting in two weeks’ time.
55. After a further chase email from Mrs X, the Council sent a response in August 2021 asking her to research her own schools from a list it provided. It advised the school still had a responsibility to meet Y’s needs.
56. The Council sent consultation letters to two schools in September 2021, five schools in November 2021, and a further three schools in February 2022.
57. By March 2022, none of those consulted had offered a placement for Y.

EHCP assessment and annual review 2022

58. At the beginning of March 2022, the Council decided to re-assess Y’s needs.
59. Following this, the Council issued a first-draft amended EHCP at the end of May 2022. This was issued the day after Mrs X had complained to it about delays and voiced her concerns statutory timescales would be breached if it was not issued soon. After the first draft EHCP was issued, Mrs X queried its contents.
60. Y’s annual review was carried out at the beginning of July 2022. Around the same time, the Council sent a letter to Mrs X to apologise for the delay in sending the draft EHCP. It said it would recommission the assessment of Y’s needs.
61. Mrs X made contact with the Council throughout the summer. At the end of September 2022, Mrs X requested a meeting to discuss the draft EHCP which had been sent in May.
62. Second and third draft EHCPs were issued in early-October and again in early-November 2022.
63. Y’s latest final EHCP since July 2020 was eventually issued in June 2023.

Complaint handling

64. Mr and Mrs X registered various complaints with the Council throughout the time period I am investigating.
65. Mr X complained to the Council early in September 2021. The Council took 24 working days to respond instead of its published 10-day response time or if this was not possible, 20 days.
66. Mrs X made repeated complaints to the Council throughout 2022 about delays in issuing EHCP paperwork and its failure to deliver section F provision to Y.
67. Although Mrs X did not always use the word ‘complaint’ in her letters, it was clear she was unhappy. Mrs X addressed and emailed the letters directly to a senior officer at the Council.
68. The first of these was late in May 2022. The Council responded 29 working days later.
69. Whilst waiting for the response to complaint number one made in May, Mrs X registered a second and third complaint.
70. In an email sent to Mrs X in August 2022, the Council confirmed it had not responded to the second complaint. It said it had overlooked this and would deal with it straight away.
71. Regarding the third complaint, the Council said it would register it and respond within 10 working days. It responded three working days later.

Analysis

Context and failure to deliver specified provision

72. Section F of Y’s EHCP lists various aspects of provision. The plan in place at the time (from July 2020) was designed to be delivered in a special school environment where Y would be taught in small groups or classes with additional in-class support. The plan was designed to provide opportunities for individual, paired and small group support to develop Y’s skills.
73. The Council had a duty (see paragraph 16 above) to ensure Y’s section F provision was delivered as far as it was possible to do so outside of a school setting.
74. The Council also had a duty under S19 of the Education Act 1996 (the Act) to ensure Y received a suitable alternative education if she was not attending her specified placement.
75. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health.
76. It is apparent that Y’s health did not permit her to access a full-time curriculum or all the provision made available to her. This is discussed further below.

EHCP annual review mid-July 2021

77. Mrs X has confirmed to me that she did not exercise her right to appeal on the basis the Council had agreed to seek a new school placement. I am satisfied this is reasonable given the circumstances presented.
78. As part of my enquiries, I asked the Council what its rationale was for the contradiction of saying there were no changes needed but at the same time agreeing to seek a new school placement.
79. In response, the Council said it acknowledged the letter was poorly written and that the ‘no reassessment’ section should have been removed from the letter template. It also confirmed the EHCP should have been amended to reflect the changes in need.
80. If the EHCP had been amended as the Council advised it should, this would have given Mrs X a definitive view on the Council’s stance. It would also have helped her to decide whether she wished to use her appeal rights if she did not agree with the contents or school named. I cannot say whether Mrs X would have decided to appeal the contents of the EHCP if it had been changed. However, by not amending it when it should and instead saying it would find a new school, the Council confused matters and denied Mrs X the opportunity to appeal a definite decision.
81. These errors are all fault. They would have caused Mrs X avoidable confusion, delay and frustration. I have made a recommendation below to remedy the injustice caused.

Alternative provision up to October 2021

82. It was clear from events before and comments made at the 2021 annual review that Mrs X felt Y would not be able to go back to the school. By September 2021, the Council had been fully aware of this since mid-July 2021. By August 2021, it had also decided the AP the school had proposed was not suitable.
83. When it became clear that Y was going to be unable to attend school due to mental health difficulties, the Council should have considered whether it had a duty under S19 of the Act. Statutory Guidance Ensuring a good education for children who cannot attend school because of health needs says councils can expect schools to provide support to pupils absent for short periods but should be ready to take responsibility for any child whose illness will prevent them from attending school for 15 or more days and ‘where suitable education is not otherwise being arranged’.
84. The Council should therefore have been ready to take responsibility for providing S19 education itself. Failure to do so was fault.
85. In the first half of September 2021, despite chases from mental health professionals, the school and a complaint registered by Mr X, nothing had happened.
86. Having viewed the evidence on file, I am satisfied the Council was too slow to explain what it viewed as suitable AP or organise it for Y. Its actions were reactive rather than proactive and the situation had been allowed to drift. It was not until the middle of October 2021 that the Council then agreed to the 12-week package of AP.
87. The Council appears not to have understood that under S19 of the Act the duty to deliver suitable education lay with it and not the school. This is fault. It would have led to avoidable delay and frustration for Mrs X. It also led to a period of five weeks and two days (from the beginning of September until the middle of October 2021) where Y had no AP organised and was therefore not receiving any education at all, including any section F provision. I have made a recommendation below to remedy the injustice caused.

Alternative provision from mid-October 2021 until January 2022

88. I am satisfied, in the circumstances of this complaint, the Council made reasonable efforts to deliver a suitable education by agreeing to the 12-week placement at the AP provider whilst it tried to source an alternative school for Y. The Council is not at fault in this regard.
89. Mrs X complains that section F provision was not fully delivered during the time Y did attend the AP provider. I am satisfied, in the circumstances of this complaint, that provision designed to be delivered in a secondary special school could not necessarily be mirrored in an AP setting, as much of it required group or peer work. I am also satisfied that due to the short amount of time Y was able to attend the on-site provision due to health reasons, it is unlikely all the section F provision could have been successfully implemented. As such, I find no fault in the Council’s actions here relating to the delivery of section F provision. The evidence is that provision was available, but the nature of Y’s condition prevented her from accessing this. This was not fault by the Council.
90. I am also satisfied that on the balance of probabilities, it would have been difficult for the Council to deliver section F provision to Y when she felt unable to attend the AP already in place for the remainder of the agreed 12 weeks and therefore find no fault in the Council’s actions here.
91. The two days per week tutoring agreed as part of the 12-week AP package never began. I am unable to say whether Y would have successfully accessed this if it had been put in place given her difficulties in engaging at the time. However, as it was never organised, this denied Y the opportunity to attempt to make the most of the provision that should have been in place.
92. The Council has provided no evidence as to what efforts it made to source this or explained any delay in doing so. The lack of tutoring being delivered during this time is fault. It would have deepened Mrs X’s frustration and meant that Y was unable to receive education on the two days per week she was not attending the AP provider. I have made a recommendation below to remedy the injustice caused by this fault.
93. As a result of the review meeting in December 2021, tutoring to start in January was agreed. I am satisfied that different AP was therefore put in place for January 2022 and there was not an undue delay in sourcing this further alternative. I find no fault in the actions of the Council here.
94. S19 guidance states that alternative education should be equivalent to full time. The suggested tutoring of one hour per day (increasing over time) which was to begin in January 2022 did not fulfil this requirement. The Council has provided no explanation or rationale for the decision and how it was reached. This is fault. However, there is uncertainty as to whether or not Y could have engaged with a greater amount of tutoring at the time, given that she had been unable to engage with the AP provider. On this basis, I am satisfied there is no ongoing injustice in how the Council acted in deciding on the initial level of tutoring.
95. Mrs X was unhappy that there was no representative from the Council’s SEN team at the review meeting and that it had been cancelled the week before as there was no SEN team representation at that meeting either. I am satisfied the Council should have communicated with Mr and Mrs X more readily. It should have updated Mrs X about the ongoing situation. This is fault. It would have led to avoidable frustration and confusion. I have made a recommendation below to remedy this injustice.

School consultations

96. Having viewed the evidence on file, I am satisfied the Council was too slow to begin its search for a new school placement for Y.
97. Late in August 2021, the officer handling the case had advised Mrs X she was new to the area and did not really know much about the local schools. She provided a list of schools and suggested Mrs X research them herself then let the Council know which ones she would like it to approach.
98. It was then only after Mr X had made a complaint, and in the middle of September 2021, the Council finally sent consultation letters to two local schools. This was a full two months after it had been agreed at the annual EHCP review, and a full month after the Council had confirmed this in its decision letter.
99. The Council’s response to Mrs X was reactive rather than proactive and did not help to move things forward. As it was, things had again been left to drift. The delay in sending out the first consultations was avoidable and is fault. This meant the search for a new school did not start as quickly as it could have done. It would have caused avoidable frustration and confusion to Mrs X. I have made a recommendation below to remedy the injustice caused by this fault.
100. The November consultations were sent out but Mrs X was unaware of this. At the review meeting in December 2021, there was no representative from the Council’s SEN team, so Mrs X still remained uninformed about any progress made.
101. Given the circumstances of Y’s case, I am satisfied the Council should have updated Mrs X on the consultation process which had by now approached seven schools. As it was, Mrs X remained unsure of exactly what the position on consultations was as nobody appears to have communicated with her. This is fault. It would have led to avoidable frustration and confusion. I have made a recommendation below to remedy this injustice.
102. The Council sent final consultation letters to schools late in February 2022. No place was offered to Y by any of the schools consulted.
103. The day after the final consultations were sent out, the Council decided to re-assess Y’s EHCP needs. It sent a letter to Mrs X to advise her of this. I find no fault in the actions of the Council relating to the third round of consultation letters or its subsequent actions linked to them.

Alternative provision from January 2022 onwards

104. In its chronology sent in response to my enquiries, the Council said the intention was to increase the amount of Y’s tuition in line with her readiness. There is, however, no evidence of any formal review being carried out during this time to see if Y’s tutoring hours could have been increased. As per paragraph 25 above, we recommend the Council review part-time education and work with parents to review and amend plans where appropriate. Failure to do so was fault.
105. Later evidence shows that Y had been unable to attend appointments at the mental health clinic or engage with physiotherapist sessions which were being delivered at home, so they needed to stop.
106. I cannot say it is more likely than not that Y could have accessed a greater level of tutoring provision or a more rounded education in general even if a review of the arrangements had been carried out, given the circumstances and her education history.
107. However, as no review took place, Y lost the opportunity to potentially access increased tutoring or education other than English and Maths. This was especially important as September 2022 saw Y start her GCSE exam year. This is fault. The Council should have reviewed provision in place. I have made a recommendation below to remedy the injustice caused.
108. In terms of delivering Y’s section F provision, I am satisfied, that in the circumstances of this complaint, a single tutor working at home with Y and focussing on two core subjects could not have been expected to deliver section F provision designed to be accessed in a special school environment. Y had previous difficulties accessing school, the previous AP and engaging with health professionals both in and out of the home. On the balance of probabilities, I cannot say that she would have been able to access this provision, even if it had been possible to arrange it to be delivered in the home. It is evident that at times Y had difficulties accessing the amount of tuition that was on offer to her.
109. The agreed EOTAS package was designed to deliver the contents of section F of Y’s EHCP outside of a special school setting. Therefore, I am satisfied there was no gap in EHCP provision here and therefore no fault on the part of the Council.

EHCP assessment and annual review 2022

110. The process to re-assess Y’s needs began in March 2022. The Code says it should have taken 14 weeks. It should have been completed early in June 2022.
111. The Council sent a letter to Mrs X in July 2022 and apologised for the delay in sending Y’s draft EHCP but offered no explanation as to why it had happened. Instead, it said it would again commission the re-assessment. Guidance says the Council should act in a timely manner and take steps as soon as practicable. I am satisfied the Council did not act quickly enough or explain the reason for any delays. This is fault. It would have added to the frustration and confusion Mrs X already felt. I have made a recommendation below to remedy the injustice caused.
112. There was then a significant delay of over four months between the first and second draft EHCPs being issued. Although evidence suggests the Council was waiting for an amended report from the educational psychologist, it has offered no explanation for this delay. Neither has it explained the ongoing delay when the report was received at the end of July 2022 but the second draft EHCP not issued until October 2022.
113. Matters only seem to have progressed after Mrs X requested a meeting to discuss the first draft EHCP at the end of September 2022. This delay is fault. The Council had again allowed the situation to drift. This would have caused further avoidable delay and confusion for Mrs X and left her unclear on what the EHCP would contain. I have made a recommendation below to remedy the injustice caused by this fault.
114. As it was, Y’s latest final EHCP since July 2020 was eventually issued in June 2023. The Council has not explained this delay in its chronology to me.
115. However, Mrs X believes that some of the delay from late 2022 into 2023 was likely due to the Council wanting to confirm the setting Y would move to for her transition to college in September 2023. Mrs X advised me she understood why the Council was waiting to issue the final EHCP, as frustrating as the wait was. This delay, however, is still fault. The eventual final EHCP issued in June 2023 did not name a specific education setting in section I. The delay would again have caused Mrs X avoidable frustration and confusion.
116. This delay also meant Mrs X did not yet have the right to appeal the contents until it was issued. Whilst I cannot say whether Mrs X would have exercised this right, the opportunity to do so was significantly delayed due to the extended wait for the final EHCP to be issued. This is fault. The Council took too long to complete the process. This would have caused further avoidable frustration and distress for Mrs X and Y. I have made a recommendation below to remedy the injustice caused.

Complaint handling

117. The Council’s responses to the family’s complaints in 2021 and 2022 were either delayed or overlooked completely. This is fault causing frustration for Mrs X.
118. The Council quickly responded to Mrs X’s third complaint, taking only three working days. Mrs X had clearly complained about the Council not delivering section F of Y’s EHCP. The Council, however, says that due to a misunderstanding it responded to tell her that concerns over section F should be dealt with through the annual review process rather than its complaints process. This was incorrect.
119. The Council has confirmed that at that time its stance was to direct people towards the annual review process if they were unhappy with the delivery of section F. As Mrs X was already in the middle of an annual review process, she said previous reviews had brought no change and rightly advised the Council that she felt this was pointless. Eventually, Mrs X, the Council and the school met to discuss the provision in place, rather than begin a further annual review. The Council has confirmed it has since changed its processes and now holds this type of meeting as a standard approach instead.
120. Overall, the Council’s handling of Mrs X’s complaints was poor. In its responses to me, the Council offered to pay Mrs X £200 to reflect the time and trouble in making her complaints. I have made a recommendation below to remedy the injustice caused by these faults.

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Agreed action

121. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision.

Personal remedy

The Council should:

1. apologise to Mrs X for the distress caused to her and Y by its failings;
2. pay Mrs X £1000 on behalf of Y to acknowledge she did not receive suitable education from September 2021 to mid-October 2021;
3. pay Mrs X £500 on behalf of Y to acknowledge she did not receive agreed tutoring from mid-October 2021 to the beginning of January 2022;
4. pay Mrs X £1000 on behalf of Y to acknowledge the lost opportunity caused by not reviewing Y’s educational provision to establish if it could be increased or added to in 2022;
5. pay Mrs X £300 to acknowledge the general distress caused by delays linked to the EHCP process and the faults identified; and
6. pay Mrs X £200, as per its suggestion, to acknowledge the mistakes made in its complaints handling.

Service improvement

The Council should:

1. share the Ombudsman’s guidance “Out of school, out of sight” with those officers dealing with SEN cases to ensure they are clear on the Council’s duties to organise AP under S19 of the Act and to review the education of those on a part-time timetable;
2. remind officers dealing with EHCP paperwork of the need for accuracy when sending decision letters;
3. remind relevant SEN team officers of the need to communicate in a timely manner;
4. remind officers dealing with SEN complaints of the need to handle these in line with the Council’s published policy and timescales and share the Ombudsman’s guidance on effective complaint handling for local authorities with them; and
5. make it clear to officers dealing with complaints about delivery of section F that these can be considered under the Council’s complaints procedure.
1. Payments made for missed provision should be used to benefit Y’s education. Payments made are in line with the Ombudsman’s guidance on remedies.
2. The Council should provide us with evidence it has complied with the above actions.

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Final decision

124. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman