Summary: Mrs X complained about the Council’s failure to provide her son with a full-time education and support for his special educational needs. We found the Council was at fault. It failed to carry out an annual review and update the Education, Health and Care Plan to reflect his change in circumstances. It also took too long to respond to Mrs X’s complaint. To remedy the injustice caused by these faults, the Council has agreed to apologise, make a payment to Mrs X and take action to improve its service. We did not investigate some of Mrs X’s complaint because it was late.

The complaint

1. Mrs X complains about the Council’s failure to properly support her son’s (whom I shall refer to as P) education and special educational needs since he had to leave his previous school in 2021. Specifically, she complains about the Council’s:
1. failure to provide a school place for the academic year 2021/2022;
2. delay in the EHC Plan process and failure to hold annual reviews;
3. failure to provide a full-time education since September 2022;
4. failure to provide an adequate personal budget; and
5. poor complaint handling and communication.
2. Mrs X says this has put enormous pressure, both emotionally and financially on her and the rest of the family.

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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. 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 SEND Tribunal in this decision statement.
7. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
8. 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.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
10. 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

11. The restriction outlined in paragraph four applies to part of this complaint because Mrs X complains about events that took place over a year ago. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion to investigate 1 (a) for the following reason.
12. P was provided with a bespoke package of education at home between 2021 and 2022. Mrs X complained about this to the Council in June 2021 but did not complain to the Ombudsman. We expect people to make a complaint to us within a year of them thinking there may have been some fault by the Council. I consider it was reasonable for Mrs X to have come to the Ombudsman in 2021/2022 rather than leaving it until now.
13. For this reason, I have investigated events between September 2022 (when P started college) and February 2024. The latter is the date of the Council’s final complaint response and when the Ombudsman agreed to investigate the complaint.
14. I understand Mrs X remains unhappy about the current position, but this will need to be the subject of a fresh complaint to the Council in the first instance.

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How I considered this complaint

15. I spoke to Mrs X and her husband, Mr X, and considered the information they provided.
16. I made enquiries of the Council and considered its response and case records.
17. I reviewed the relevant law and guidance.
18. Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

19. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
20. The EHC Plan is set out in sections which include: 

• 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 

21. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

SEND Tribunal and appeal rights

22. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.

Failure to secure provision

23. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

Annual Reviews

24. 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.
25. 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.
26. 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.
27. The council must issue the amended EHC Plan within eight weeks of the original amendment notice.

Personal budgets

28. A Personal Budget (PB) is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a PB is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
29. The council must ensure the direct payment is sufficient to secure the provision sent out in the EHC Plan.

The Council’s complaints procedure

30. Complaints will be acknowledged within five days.
31. Stage one - the Council aims to respond to complaints within 20 working days (plus 10 days for complex cases).
32. Stage two - the Council aims to respond to complaints within 20 working days (plus 10 days for complex cases).

What happened

33. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.

Background information

34. P is a young person with a learning disability and a diagnosis or autistic spectrum disorder. He has had an EHC Plan for several years.
35. Until May 2021, he attended School F, a special school. This school, and type of school. was specified in P’s EHC Plan that was issued in 2020. Between September 2021 and 2022 he was educated at home.

Events I have investigated

36. In September 2022, P started attending college three days per week, supported by Provider Q. Mrs X says Provider Q regularly cancelled sessions, with little or no notice. The meant Mr X often had to cancel work to look after P. This had financial consequences for the family.
37. The Council also provided home tuition two days per week.
38. Mrs X was dissatisfied with the level of support offered by the Council in several areas.

• Failure to provide full time education for P. She says Provider Q operated a five week half term. Over the course of the year this is nine weeks shorter than at P’s previous school.
• Failure to provide a PB that adequately reflected the cost of P’s educational arrangements. This includes additional heating costs and loss of income (Mrs X estimates these costs as being £1000 and £12,000 for the academic year 2022/23).

39. She raised her concerns in a formal complaint in September 2023.
40. P stopped attending college in November 2023. There have been ongoing discussions between the Council and Mrs X about how P will be supported in future.

The EHC Plan process

41. A final EHC Plan was issued in February 2023. This replaced the previous plan from 2020 (that named School F in Section I).
42. The Council has confirmed no annual review was held between June 2021 and May 2023. A notice of intention to amend the EHC Plan was issued shortly after the annual review held in May 2023. This led to protracted discussions between the Council and Mrs X about the content of the draft plan because the drafts issued by the Council continued to refer to out of date information, including what happened while P was still at school.
43. A final EHC Plan was issued on 17 January 2024. However, Mrs X says the copy she received was encrypted and was unable to read it.
44. Mrs X continued to object to the content of the EHC Plan. A further annual review was held in late February 2024.
45. Another final plan was issued in May 2024. This gave Mrs X her right of appeal to the SEND Tribunal.

The Council’s position

46. In response to both Mrs X’s complaint and the Ombudsman’s enquiries the Council’s position is as follows.

• Although no formal annual review took place in 2022, regular reviews of the package were carried out by the specialist teachers involved with P’s education.
• The Council is satisfied the current 2024 EHC Plan accurately reflects P’s needs and support in being provided in accordance with that plan.
• The Council had responded to all Mrs X’s requests for adjustments to the PB.
• Provider Q failed to provide 15 sessions in the academic year 2022/23. Mrs X used some of P’s PB to source some alternative support.

47. Analysis
48. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. We can look at delay in issuing an EHC Plan and where councils have failed to provide SEN support set out in the EHC Plan.
49. In this context, I will consider Mrs X’s separate areas of complaint below.

Delay in the EHC Plan process and failure to hold several annual reviews

50. In the event of a placement breaking down (as it did in 2021), the Ombudsman would expect an emergency annual review to be held, especially when an alternative school place could not be found straight away. This, in turn, would lead to an amended final plan being issued.
51. This did not happen in this case and was fault. The Councill failed to convene an annual review in both 2021 and 2022. I do not accept the Council’s rationale for the lack of review in 2022. It is irrelevant that informal reviews were ongoing.
52. The law is clear that reviews should take place annually and the Ombudsman expects Council’s to have arrangements in place where children are educated at home. This lack of review meant P’s EHC Plan was significantly out of date and failed to reflect his current needs and circumstances.
53. A final EHC Plan was issued in February 2023. It was clearly out of date because it refers to information gathered from the annual review in August 2021 and P’s progress and achievements at School F (that he left in June 2021). I agree with Mrs X that this final EHC Plan was not fit for purpose. I have not been provided with evidence that Mrs X was advised of her right of appeal to the SEND Tribunal at this time. But in any event, I do not consider it was reasonable for Mrs X to have appealed at this stage because the Council accepted an annual review was outstanding and significant amendments to the EHC Plan were necessary. This was fault.
54. Once the annual review was finally held in May 2023, it took approximately eight months to issue the final EHC Plan. This significant delay was further fault. Whilst I acknowledge there were several draft plans issued during this time in response Mrs X’s concerns, the Council allowed the situation to drift for far too long. Where there is a dispute about the content of a plan, the Ombudsman expects Councils to issue a final plan to allow a parent the opportunity to make an appeal the SEND Tribunal. Not only did the delay cause Mrs X significant distress, frustration and uncertainly, it also denied her of her right of appeal. This is additional injustice requires a remedy (below).

Failure to provide a full-time education since September 2022

55. The Council’s says the combined package of three days per week with Provider Q and two days home tuition was effectively full-time provision. There is no legal obligation for college age students, either with or without SEN to receive a set number of hours of support per week.
56. Mrs X disagrees because Provider Q operated shorter term times than School F. Mrs X says she would not have supported a move to Provider Q in 2022 had she been aware from the outset it was only for three days.
57. The Council has explained the standard “full time” offer for pupils of that age attending college, supported by Provider Q was three days. In response to Mrs Q’s objection to this, the Council arranged home tuition for the other two days. This was in place from the start of the autumn term in September 2024.
58. Mrs X expectation would be that P would receive as many hours support as he would have done at school.
59. There was no obligation to do so. Instead, it had to ensure provision outlined in the EHC Plan was available to P. Unfortunately, the EHC Plan in place at the time was out of date because it still referenced School F
60. I am satisfied that on balance, it is more likely than not, that that had the EHC Plan been updated and reviewed at the correct time it would have set out what was being provided. I say this because it all parties agreed this at a meeting in June 2022.
61. However, there were clear problems with the reliability with Provider Q. The Council has confirmed P only received 87 days support out of a possible 102 due to sickness and recruitment difficulties. Although this was out of the Council’s control, it nevertheless remained legally responsible to ensure SEN support was delivered to P. The problems with Provider Q meant P missed out on five weeks of support. This was effectively half a term. This was a service failure that caused an injustice to P.
62. Following a serious incident, P stopped attending college altogether in November 2023. Disappointingly, I have seen no evidence of the Council taking any action to investigate what happened or make alterative arrangements.
63. Although the partial lack of provision between November 2023 and February 2024 was, in my opinion, due to factors out of the Council’s control, it should not have just let the situation continue indefinitely. The case records show there was some discussion with Mrs X about work that needed to take place between P and Provider Q (I presume around risk management). But the Council was silent as to what it intended to do to address the fact P was without a large area of support. This was fault.

Failure to provide an adequate personal budget

64. Mrs X says she has incurred considerable cost in supporting P’s SEN. In recognition of this, the Council allowed a PB of £50 per week, plus an additional payment for heating with receipts. It is not the role of the Ombudsman to determine what a PB should be. This is the Council’s role. I have seen evidence of the Council considering requests made by Mrs X for additional funds. The Council has either agreed, or explained why the PB will not be increased. This the process I would expect to see and for this reason I have not found the Council to be at fault here.

Poor complaint handling communication.

65. Mrs X complained on 4 September 2023. The Council failed to reply within 20 days and so she brought her complaint to us. The Council told us it had no record or receiving the complaint. This was incorrect because I have been provided with a copy the acknowledgement sent to Mrs X shortly after she made her complaint in September. The Council did not reply until late December 2023, nearly three months late. This delay was fault causing Mrs X avoidable frustration, time and trouble.
66. Ther Council denies its communication with Mrs X was poor. Having reviewed the correspondence between the two parties, I do not find the Council to be at fault. Whilst I accept there were occasions when Mrs X did not receive a response to her emails, these were exceptions rather that the general theme. In my view, the Mrs X’s frustration was caused by the content of the emails and lack of follow up action, as opposed to lack of communication. The injustice caused by this is addressed below.

Injustice and remedy

67. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred; and
• distress can include anxiety, uncertainty, lost opportunity and frustration.

68. Where there has been a loss of education and SEN support, the Ombudsman usually recommends between £900 and £2400 per school term. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.

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Agreed action

69. To remedy the identified faults I have identified, the Council has agreed to take the following action, within four weeks of the final decision.
1. Apologise to Mrs X.
2. Pay Mrs X £500 to recognise the lack of provision from November 2023 to February 2024 when P stopped attending college.
3. Pay Mrs X £500 to recognise the 13 missed sessions when Provider Q was unable to provide support.
4. Pay Mrs X £1000 to recognise her distress and uncertainty caused by the Council’s failure to hold annual reviews, delay in the EHC Plan process, issuing an out of date final EHC Plan and loss of appeal rights.
5. Pay Mrs X £100 to recognise her distress caused by the delay in responding to her complaint.
6. Reflect on the issues raised in this decision statement and identify any areas of service improvement, specifically around holding annual reviews and delay in the EHC Plan process. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation. I found the Council to be at fault and the Council has agreed to take action to remedy the injustice to Mrs X and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman