Summary: Mrs X complained about the Council’s handling of her son, F’s education and his Education, Health and Care (EHC) Plan since 2021. The Council was at fault. It failed to issue an amended EHC Plan following an annual review in February 2022. It also failed to ensure F received an education or the specialist provision in line with his EHC Plan between February 2022 and February 2023 when he was unable to attend school. The Council agreed to apologise to Mrs X and make payments to acknowledge the impact on F’s education and the distress and uncertainty caused to her.

The complaint

1. Mrs X complained about the Council’s handling of her son, F’s education and his Education, Health and Care (EHC) Plan between January 2022 and July 2023. She said the Council failed to issue F’s amended EHC Plan following an annual review in February 2022 and F has not received any education during this period after he was unable to attend school.
2. Mrs X said the matter has caused her and the family distress and uncertainty and meant she has had to fund F’s education privately.

Back to top

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. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

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). Part of Mrs X’s complaint is about delays in the EHC needs assessment process during 2021. I have not investigated this element of the complaint because it is late. It was reasonable for Mrs X to have complained to us and the Council much earlier about any concerns and delays which occurred in 2021.
8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
9. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. Mrs X appealed to the SEND tribunal in March 2023 after the Council issued F’s amended EHC Plan in the February. F’s non-attendance was linked to Mrs X’s disagreement with the content and named placement within the EHC Plan. Therefore, I have not investigated events between February and July 2023.

Back to top

How I considered this complaint

11. I spoke to Mrs X about her complaint and considered information she provided.
12. I considered the Council’s response to my enquiry letter.
13. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

EHC 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
15. 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)
16. 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.

Annual reviews

17. 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.
18. 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).
19. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 5 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting).

SEND tribunal

20. 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.
21. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

What happened

22. Mrs X has a son, F, who in 2022 was of primary school age. F is autistic and following an EHC needs assessment the Council issued F's final EHC Plan in January 2022 naming a mainstream primary school, School 1. Section F of the EHC Plan showed F was entitled to specialist provision which included:
• A programme to help with feelings and emotions.
• Interventions in class to help with communication.
• A differentiated curriculum to take into account F’s needs.
• Small group social skills sessions.
• Access to a key trusted adult at school.
23. Shortly after issuing the EHC Plan School 1 contacted the Council raising concerns that F was not attending. Mrs X also sent a letter to the Council confirming F was struggling to attend due to severe anxiety and demand avoidance. CAMHS (Child and Adolescent Mental Health Services) also sent a letter supporting a decision to keep F at home.
24. School 1 held an annual review in February 2022 which a Council officer attended. Records show F’s lack of attendance was discussed and the reasons for it. School 1 stated it was exploring alternative provision and putting together a plan to reintegrate F back into school. The Council said it was agreed that it and the school would look into tuition arrangements in the interim. The Council wrote to Mrs X at the start of March 2022 advising her the allocated SEN officer would be in touch soon.
25. Mrs X says the Council did not correspond with her again during 2022 about either amending the EHC Plan following the annual review or about alternative provision. Mrs X said she tried to contact her allocated officer, but they did not respond to phone calls or emails. In the meantime, Mrs X said F remained out of school and she funded some provision privately.
26. Mrs X said School 1 held another annual review in December 2022. Records show at this time F was on a reduced timetable attending school for three afternoons a week.
27. The Council issued a final amended EHC Plan in February 2023. It did not name a school in section I or a secondary school for the 2023/24 academic year which F was due to transition to. Mrs X appealed the content and named placement to the SEND tribunal in March 2023.
28. Mrs X complained to the Council in April 2023. She complained F’s EHC Plan was not fit for purpose and F had received no meaningful education or provision in line with his EHC Plan since he stopped attending school in February 2022. Mrs X said promises of alternative provision from the Council did not happen. Mrs X said nobody from the Council attended the December 2023 annual review meeting.
29. The Council responded to Mrs X at stage one of the complaints process in June 2023. The Council accepted it failed to make a decision around whether to amend F’s EHC Plan following the annual review in February 2022 for which it apologised. It also accepted communication was not frequent during 2022. The Council said School 1 was looking into alternative provision following the February 2022 annual review.
30. Mrs X escalated her complaint to stage two of the complaints process. The Council responded stating it had already addressed the points at stage one and had nothing further to add.
31. Mrs X remained unhappy and complained to us.
32. Mrs X told us the SEND tribunal process concluded in July 2023 with it ordering the Council to put an EOTAS (Education other than at school) package in place for F.

The Council’s response to us

33. The Council accepts it failed to meet statutory timescales following F’s annual review in February 2022 and failed to ensure F received an education in line with his EHC Plan. The Council said events occurred at a time when its SEN department experienced significant pressure and demand which caused unacceptable yet unavoidable delays.
34. The Council accepted it was aware from February 2022 that F was unable to attend school but said School 1 was exploring options and an action plan was in place. However, it accepts it has no evidence to support this. Although staff chased the school in March 2022 there is no evidence anything was done after this. The staff responsible at the time have now left the Council.

My findings

35. Following F’s annual review in February 2022 the Council should have issued a decision letter within four weeks and then his final EHC Plan by mid-May 2022. The Council accepts it failed to meet these timescales or communicate with Mrs X about it. This was fault.
36. The Council accepts F could not attend the named placement in his EHC Plan following the February 2022 annual review and accepts it should have put provision in place when it became aware. It also accepts that it failed to follow up with School 1 about alternative provision. It meant F remained out of formal education between February 2022 and February 2023 which equates to a whole school year. The Council retains overall responsibility to arrange educational provision in line with EHC Plans and that is non-delegable. There is no evidence the Council had any oversight of School 1’s plans or F’s education during this period. All of this is fault.
37. The above faults have caused Mrs X and F an injustice. The failure to issue F’s EHC Plan in line with timescales caused distress and uncertainty and significantly delayed Mrs X’s right of appeal. Given Mrs X used that right in 2023 on receipt of an amended plan, on balance she would have used it earlier in 2022 had she received that right.
38. F was out of school between February 2022 and February 2023. Although this remained the same after February 2023, I cannot remedy this period for the reasons explained in paragraphs 7-9. F missed out on three whole terms of formal education and the specialist provision in his EHC Plan. In line with our guidance, I have made a recommendation to remedy this injustice below.
39. Since the scope of this complaint the Council has carried out service improvements as a result of other cases we have investigated. This includes:
• Recruitment within its SEN department.
• Process reviews and staff training on annual review timescales, alternative provision and section 19 duties.
• Reminders to SEN officers that it is the Council’s duty to provide provision in line with EHC Plans where children are not attending school.
40. Given the above, I have not made any further service recommendations as a result of the faults found in this case.

Back to top

Agreed action

41. Within one month of the final decision the Council agreed to:
1. Apologise to Mrs X and pay her £300 to acknowledge the distress, uncertainty and delayed right of appeal caused by the Council’s failure to issue F’s EHC Plan following an annual review. 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 apology I have recommended.
2. Pay Mrs X £6000 to recognise F’s loss of education and specialist provision in line with his EHC Plan between February 2022 and February 2023.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

43. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman