Summary: Miss X complained the Council failed to provide her child with an education, delayed issuing and reviewing an education, health and care plan, and handled her complaint poorly. Miss X said this meant her child’s needs were not met, they lost out on education, and it caused distress, frustration, and upset. We find the Council at fault, and this caused injustice. The Council has agreed to apologise, make a payment to Miss X, make an additional monthly payment for each month of delay reviewing the plan, and improve its service.

The complaint

1. Miss X complained about the way the Council handled her child’s special educational needs. Specifically, Miss X complained the Council:
1. failed to provide her child with an education;
2. delayed issuing an education, health and care plan for her child;
3. delayed reviewing her child’s plan; and,
4. handled her complaint poorly.
2. Miss X said there has been an impact of lost education and peer socialisation on her child, and a failure to meet their needs. Miss X said it caused both her and her child unnecessary and avoidable distress, frustration and upset. She said she needed to leave her job as her child was at home full time, and this also had a financial impact.

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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. 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)
5. 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

6. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
7. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education for children out of school

8. 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 or alternative education provision.

Education, health and care plans and reviews

9. A child or young person with special educational needs may have an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. 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 EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says if the council decides to carry out an assessment and issue an EHC plan, the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
11. 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)  
12. 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.
13. The council must decide whether to conduct a reassessment of an EHC plan if this is requested by the child’s parent, the young person or their educational placement. The council must tell the child’s parent 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.

Complaints

14. The Council’s complaints procedure says it will acknowledge a complaint within three working days, and will respond within ten working days.

What happened

15. Miss X’s child, B, stopped attending school in November 2022. The school organised two months of alternative provision for November and December.
16. In December, the Council was asked for an education, health and care (EHC) plan for B.
17. In February 2023, Miss X complained.
18. In April, B’s head teacher reminded the Council that B was out of school due to medical needs. This meant B could not attend full-time education in a mainstream school. Also in April, the Council issued B’s EHC plan.
19. In July, Miss X complained again.
20. In September, the Council acknowledged Miss X’s complaint and said it would respond in ten working days. The next day, a councillor made an enquiry to the Council on Miss X’s behalf. Miss X complained to the Ombudsman.
21. The Council responded to the councillor’s enquiry. It said what it was doing to arrange a placement for B. It also apologised for its poor communication with Miss X.
22. In October, the Council told Miss X it could refer B for tutoring and mentoring if she agreed.
23. In January 2024, a councillor raised a second enquiry to the Council on Miss X’s behalf. A few days later, Miss X asked the Council to review B’s EHC plan because of their changed needs. Miss X included a medical letter from the NHS which said the EHC plan needed to be reviewed because B’s needs had changed. The Council acknowledged this request.
24. A week later, the Council responded to the councillor. The Council acknowledged Miss X’s request to review the EHC plan.
25. A councillor then raised a third enquiry to the Council. The Council responded to this, apologising for its poor communication. It said it had no excuse but had staffing capacity issues. The Council said it would refer B for tutoring and mentoring.
26. In February, Miss X asked the Council again to review B’s EHC plan. Also in February, the Council told the Ombudsman it had logged Miss X’s complaint at stage one.
27. In March, B’s tutoring and mentoring started. The Council sent Miss X its stage one complaint response at the end of March.

Analysis

Educational provision

28. Miss X complained the Council failed to provide her child, B, with an education (part a of the complaint).
29. B stopped attending school in November 2022. The school organised two months of alternative provision for November and December. Miss X told me that B received home tutoring in January and February 2023. B started tutoring and mentoring in March 2024.
30. I have seen no evidence the Council provided B with an education between March 2023 and March 2024. This is fault.
31. The Council was aware that B was not able to attend school from at least April 2023, when their head teacher told the Council this. However, I find it more likely than not that the Council had been told B was not able to attend school before that.
32. The Council has not told the Ombudsman whether or not it considered its duties to provide alternative education under section 19 were triggered in this case.
33. The Council said it felt the tutoring and mentoring were suitable provision for B, but acknowledged these were not full-time provision.
34. As B had an EHC plan, the Council also had a duty to provide the provision set out in B’s EHC plan. The Council accepts that it did not provide all of the provision in B’s EHC plan. This is fault.
35. I find this fault caused B and Miss X injustice in that B missed out on a year’s education and provision, and it caused Miss X unnecessary and avoidable distress.

Issuing the education, health and care plan

36. Miss X complained the Council delayed issuing B’s education, health and care (EHC) plan (part b of the complaint).
37. The guidance says a council must take no more than 20 weeks from the point an assessment is requested to issuing the final EHC plan. In this case, the Council received a request for an EHC plan for B in December 2022. It issued the final plan in April 2023, a week before the 20-week deadline.
38. For this reason, I do not find the Council at fault.

Reviewing the education, health and care plan

39. Miss X complained the Council delayed reviewing B’s education, health and care (EHC) plan (part c of the complaint).
40. Firstly, the Council should have reviewed B’s EHC plan within 12 months. The Council issued B’s first EHC plan in April 2023. This means the Council should have reviewed B’s EHC plan by April 2024.
41. At the time of writing, the Council said it still has not completed a review of B’s EHC plan. This is fault.
42. These faults mean that B’s needs have not been met. This is injustice. This also caused injustice to Miss X because it denied Miss X her right to appeal the EHC plan at Tribunal, as well as causing unnecessary and avoidable distress and uncertainty.
43. Secondly, the Council had a duty to decide whether to reassess B’s EHC plan when Miss X and the school’s head teacher requested it.
44. Miss X asked the Council in January 2024 to review B’s EHC plan because B’s needs had changed. This meant the Council needed to reassess B’s needs and the plan.
45. I find the Council failed to decide whether it would reassess B’s needs, and failed to respond to Miss X’s request. The Council accepted it did not acknowledge or respond to Miss X’s request for a review. This is fault.
46. I find this fault caused B injustice because their needs were not assessed or met. It also caused Miss X injustice in that it caused uncertainty and unnecessary and avoidable frustration and distress.

Complaint handling

47. Miss X complained the Council handled her complaint poorly (part d of the complaint).
48. Miss X told me she complained in February 2023 and July 2023. The Council acknowledged Miss X’s complaint in September 2023 and said it would respond. I have seen no evidence that the Council responded to Miss X’s complaint within ten working days, as set out in its policy. This is fault.
49. In February 2024, the Council told the Ombudsman it would log Miss X’s complaint at stage one. It sent its stage one complaint response in March. I find this complaint response was very poor. It did not mention the word “complaint” anywhere. It did not say it was a stage one complaint response, or signpost Miss X to the next stage of the complaints procedure. It did not tell her if her complaint was upheld or not, whether there was any fault or injustice, and did not consider remedying any injustice caused.
50. I find fault in the way the Council handled Miss X’s complaint. I have seen no evidence the Council responded to Miss X’s complaint until the Ombudsman got involved, despite having acknowledged it in September 2023. This is fault. A complainant should not have to complain to the Ombudsman to get a council to respond to their complaint.
51. A councillor also complained to the Council on Miss X’s behalf three times. Each time, the Council apologised for poor communication. I find the poor communication continued after each apology. This is not good practice.
52. I find these faults caused Miss X injustice in that she spent considerable time and trouble chasing the Council for a response to her complaint. This caused unnecessary and avoidable distress. She also made complaints through a councillor three times because the Council did not respond to her complaint.

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Agreed action

53. Within four weeks of this decision, the Council has agreed to apologise to Miss X in writing for the following:
• the impact on B of the Council failing to provide them with education or EHC plan provision for a year;
• the unnecessary and avoidable distress caused to Miss X by the Council failing to provide education or provision to B for a year;
• the unnecessary and avoidable distress and frustration caused by the Council failing to review B’s EHC plan within 12 months, or reassess B’s needs/EHC plan when asked to; and,
• the unnecessary and avoidable distress and Miss X’s time and trouble caused by the Council failing to respond to her complaint.
54. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £7700, to increase by £100 per month for every additional month of delay reviewing B’s EHC plan (see the third bullet point below). This is made up as follows:
• £6000 for the three terms of missed educational provision and EHC provision. Our published guidance on remedies sets out a range of £900 to £2400 per term of missed provision. I have taken into account that B’s needs fluctuated during that time, and that there is no evidence of any provision between March 2023 and March 2024. Given the level of B’s needs and the amount of education and provision that was missed, I consider £2000 per term to be a proportionate and appropriate remedy. Three terms multiplied by £2000 per term is £6000;
• £500 for the distress and uncertainty caused by a year of missed education and EHC plan provision. Our guidance sets out a typical payment of up to £500 for distress. I consider a remedy at the top of this range is appropriate and proportionate given the length of time involved and the amount of time and effort Miss X went to in chasing the Council;
• £700 for the delay reviewing B’s EHC plan. £100 per month of delay is appropriate and proportionate to the level of injustice caused here. At the time of writing (December 2024), the Council has delayed reviewing B’s plan by seven months (up to November 2024). Seven months multiplied by £100 per month is £700. The Council has agreed to make an additional payment of £100 from December 2024 onwards for every month it fails to review B’s EHC plan; and,
• £500 for Miss X’s time and trouble and the unnecessary distress caused by failing to respond to her complaint. Our guidance sets out a typical payment of up to £500 for time and trouble regarding poor complaint handling. I consider a top-end payment is appropriate and proportionate because of the length of time involved, and the efforts Miss X went to in trying to get the Council to respond.
55. Within three months of this decision, the Council has agreed to make the following improvements to its service:
• to remind all relevant staff, including managers, of the Council’s duty to provide an education to children who are out of school (section 19 duty);
• to remind all relevant staff, including managers, of the Council’s duty to provide the provision set out in EHC plans to children who are out of school (section 42 duty);
• to remind all relevant staff, including managers, of the Council’s duty to review EHC plans within 12 months even if a child is out of school;
• to remind all relevant staff, including managers, of the Council’s duty to decide whether or not to reassess an EHC plan when asked to by a child’s parent, young person, or their educational placement. The Council must tell the child’s parent or 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 provide information about the right to appeal that decision to the tribunal; and,
• to remind all staff in the special educational needs/EHC plan team, including managers, of the Council’s complaints procedure and its expectations of complaint responses.
56. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the above apology.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. I uphold parts a, c and d of the complaint because I find fault causing injustice. The Council has agreed to apologise, make a payment to Miss X to remedy the injustice, and improve its service.
59. I do not uphold part b of the complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman