Summary: Ms X complained about how the Council handled her son, Y’s Education, Health and Care (EHC) Plan and education since 2020 and how it considered her complaints about those matters. The Council delayed issuing Y’s amended EHC Plan after an annual review meeting in December 2022 and its complaint response was unclear. The Council will apologise to Ms X for the uncertainty and frustration caused to her and pay her a symbolic amount of £300. The Council will remind its staff to act in line with the timelines set out in statutory guidance for EHC Plans.

The complaint

1. Ms X complained about how the Council handled her son Y’s education and his Education, Health and Care (EHC) Plan since 2020. Ms X also complained that since December 2022 the Council:
• failed to review Y’s EHC Plan in line with statutory guidance;
• failed to ensure the school provided the special educational provision in Y’s EHC Plan;
• did not properly consider the complaints she raised about the school failing to provide the provision in Y’s EHC Plan;
• threatened her with prosecution when Y did not attend school; and
• did not consider Y’s voice in all those points.
2. Ms X said Y missed out on education and a good transition to college and was traumatised by the actions of the school which impacted his mental health and wellbeing. Ms X said this had a significant detrimental effect on her own health and wellbeing. Ms X wanted the Council to apologise and provide compensation to her and Y for the harm caused to them and to investigate her concerns.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate most complaints about what happens in schools, (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(i), 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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What I have and have not investigated

9. I have not investigated Ms X’s complaints about matters that occurred in 2020 and 2021. This is because Ms X has been aware of the issues for more than 12 months, as set out in paragraph 4. There are no good reasons to investigate those complaints now.
10. I have investigated matters that occurred from December 2022. Ms X has been aware of those issues for more than 12 months, however she complained to the Council in good time, and complained to her MP when she received the Council’s complaint response. It is therefore not a late complaint.

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How I considered this complaint

11. I read the documents Ms X provided and discussed the complaint with her on the phone.
12. I considered the documents the Council sent in response to my enquiries.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

14. 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. 
15. The EHC Plan is set out in sections which include: 
• Section A: Views, interests and aspiration of the child or young person.
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement Reviewing the EHC plan
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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
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 and the Council should go on to issue the final amended EHC Plan within a further eight weeks.
19. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. 

Special educational provision

20. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
21. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

School attendance

22. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Compulsory school age is broadly 5 to 16. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.

What happened

23. The following is a summary of relevant events. It is not a detailed chronology and is not intended to cover everything that happened. I have referred to the actions of a school however this is for context only as we cannot investigate what happens in schools.
24. Y is a secondary school student and started year 11 in September 2022. Y has some additional needs, including autism, that means he needs an Education, Health and Care (EHC) Plan. Y’s EHC Plan said:
• In section A that he disliked glitter, glue and paint due to his sensory needs.
• In section F that Y would use a social-emotional programme to learn to express how he was feeling. Y would have coloured cards to indicate how he was feeling for reference throughout the school day.
• In section I that Y should attend School A, a special school for children and young people with autism.
25. School A held an annual review of Y’s EHC plan on 12 December 2022. The record of the review shows Y contributed in writing. It said the Plan needed to be amended as Y was due to transition to College B in September 2023, and Ms X wanted some amendments to section B which she would provide reports for. It recorded Y was settling well, enjoying his time and growing in confidence. The Council sent a consultation to College B for a placement for Y three days later.
26. At the beginning of January 2023 the Council wrote to Ms X and said it intended to amend Y’s EHC Plan as it would name a new placement in section I.
27. School A started Y’s transition to College B and a college staff member met Y at school. While attending School A Y was involved in a lesson that involved glue.
28. Ms X contacted the Council towards the end of January and told it School A had neglected Y’s individual needs by making him complete an activity with glue. Ms X said Y felt if he did not complete the lesson he would not be able to go on to college. Ms X said she had complained to School A and it had admitted wrongdoing. Ms X said she was keeping Y at home for his safety until the Council took action. Ms X also complained the Council told her in December 2022 that Y would attend College B but she had since been told that was not the case. Ms X complained about the lack of information from the Council.
29. The Council responded and said it was sure School A would follow its complaint process and take the concerns seriously. It said it had consulted College B which had offered Y a place from September 2023. It apologised for any lack of clarity earlier and any upset caused to Ms X and Y. Ms X confirmed she had complained to School A about the glue incident.
30. The Council contacted Ms X and said it had seen Ms X’s complaint to School A which highlighted the impact of the incident on her. The Council said it was confident School A could provide a safe and nurturing environment for Y and it was concerned Y was not attending the school. The Council also arranged a meeting at School A to discuss Y’s transition arrangements to College B. The Council suggested Y should also attend so he could contribute. Ms X told the Council Y would not return to School A, and they would not attend the transition meeting until the complaint to School A was resolved. School A asked Ms X to contact College B to continue with Y’s transition arrangements.
31. Ms X’s legal representative contacted the Council at the end of February and complained it had not issued a decision following the annual review in December 2022. It asked about Y’s placement from September 2023.
32. At the beginning of March, the Council issued a draft amended EHC Plan for Ms X’s comments. It told Ms X it was issuing it without the reports she said she would provide and that she could provide them along with her comments.
33. School A completed its investigation of Ms X’s complaint in March 2023. It wrote to her and said it would ensure Y always had his coloured cards with him, it would remove any sessions involving glue, and would add Y’s sensory intolerances to the top of all his sessions logs. It said it wanted Y to return.
34. Ms X told the Council in mid-March that she was dissatisfied with School A’s complaint response. She said she wanted Y to attend a school that could safely educate him and follow his EHC Plan. Ms X said Y would not return and she had been traumatised by the incident and lost trust in the school staff.
35. The Council told Ms X it was satisfied School A followed its complaint policy properly. It said Y remained on roll and it expected him to attend there until the end of the academic year. It said if Ms X was not going to send Y she should confirm in writing.
36. Following an attendance panel meeting School A offered various options for Y. It included reintegration to the school, to have work to complete out of school and/or to hold an early annual review so Ms X could request a new placement. Ms X said she wanted to be provided with work to do at home. The Council agreed to that approach for Y’s final term of statutory education and confirmed arrangements for work and a teacher meeting with Y on a weekly basis.
37. Ms X complained to the Council in April about how the school conducted a weekly meeting with Y. The Council asked Ms X for Y’s view of the best way forward to complete the year.
38. Ms X complained to the Council again at the end of April about the glue incident in January, about the handover in April and said it had threatened her with prosecution for Y’s non-attendance. The Council replied and stated School A had acted in line with its policies and dealt with her complaint as per its policy.
39. Dissatisfied with the Council’s response Ms X complained to us. We asked the Council to consider Ms X’s complaint including the details in paragraph 1 and provide a response.
40. The Council provided its final complaint response in June 2023. It said;
• School A confirmed in July 2022 that it could meet Y’s needs.
• It did consider Y’s voice in his EHC Plan.
• School A considered the complaint about the glue and coloured card communication tool through a school internal process. It was happy it conducted it properly.
• School A had a duty to monitor non-attendance at school.
• It had amended the draft amended EHC Plan several times to include information from reports requested by Ms X. It said it would issue a final amended EHC Plan when Ms X confirmed she was happy with the content.
41. Ms X was dissatisfied with the Council response and complained to her MP.
42. The Council issued a further amended EHC Plan at the beginning of July for Ms X’s comments. It issued the final amended EHC Plan on 9 August 2023. It stated Y would attend College B from September 2023.
43. Ms X’s MP complained to us on Ms X’s behalf in February 2024.
44. In response to my enquiries the Council said it had not threatened Ms X with prosecution for non-attendance.

My findings

Annual review

45. School A conducted the annual review in December 2022. The Council issued its decision to amend the EHC Plan in January 2023 which was in line with the guidance. The Council should have issued a draft amended Plan with its decision, and gone on to issue the amended final Plan within a further eight weeks, so by 6 March 2023. This was particularly important as Y was due to transition to post-16 education and so his updated Plan should have been issued no later than 31 March 2023. The Council did not issue the final amended Plan until 9 August 2023 which is a delay of 22 weeks and was fault, which caused Ms X uncertainty.
46. The Council said it delayed issuing the final Plan as Ms X wanted changes to be made and delayed providing reports to support that request. However, the timelines in the statutory guidance are clear and should have been adhered to. This fault did not cause any injustice to Y as the Council had secured a place for him at College B in January 2023 and the transition arrangements were in place for Y to begin attending College B in September 2023.

Provision

47. Ms X complained the Council did not ensure the section F provision in Y’s EHC Plan was in place for him, and it did not properly consider her complaint about that matter.
48. The annual review in December 2022 showed Y was settled and making good progress at School A. No concerns were raised about the provision Y was receiving. Although there was then an incident at School A, it was in relation to Y being exposed to glue and not being in possession of coloured cards to indicate how he was feeling. The matter of glue was not related to the section F provision in Y’s EHC Plan and so there was no duty on the Council to take any further action.
49. The section F provision does state Y should have access to coloured cards. It does not specifically state Y must always have the coloured cards on his person. As this complaint was related to a single incident the school was already investigating, it was appropriate for the Council to allow the school to investigate and respond. When it did so, the school confirmed Y would always have the cards on his person. Further investigation by the Council on that point would not have led to a different outcome.
50. There is no evidence the special educational provision in Y’s EHC Plan was not available to him. The school considered the complaint through an internal process, and so we cannot investigate it as per paragraph 5. Although Ms X was dissatisfied with the outcome, there was no duty on the Council to take any further action. There was no fault in the Council’s action.

Prosecution

51. There is no evidence the Council threatened Ms X with prosecution for Y’s non-attendance at school. It was aware of the options School A offered Ms X and Y to complete the final term of statutory education. It confirmed the arrangements for Y to complete his education at home when Ms X declined to send him back to school. There was no fault in the Council’s action.

Y’s voice

52. Y’s voice was present in his EHC Plan, and in the annual review in December 2022 which he contributed to in writing. The Council tried to obtain Y’s voice by inviting him to a meeting to discuss transition and by seeking his opinion via email to Ms X. There was no fault in the Council’s actions in considering Y’s voice.

Complaint response

53. The Council’s final response to Ms X was unclear. Although it provided a response to each point it was unclear what its findings were. It accepted it delayed in issuing the final amended EHC Plan but did not identify this as a fault or consider the injustice this may have caused. The unclear complaint response was fault and caused Ms X frustration.

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Agreed action

54. Within one month of this decision the Council will:
1. write to Ms X and apologise for the avoidable uncertainty and frustration caused to her by the Council’s faults and pay her a symbolic amount of £300 to recognise the same;
2. remind relevant staff to issue a final amended EHC Plan within 12 weeks of an annual review meeting in line with statutory guidance and case law; and
3. remind relevant staff responding to complaints to be clear on whether it upholds a complaint or not, and where it has found fault in its own actions, to consider the impact of that fault and how to remedy any injustice.
55. 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 I have recommended.
56. The Council will provide us with evidence it has complied with the above actions.

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Final decision

57. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman