• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to deliver the provisions in his daughter's Education, Health and Care Plan; poor communication and said the Council failed to carry out an annual review in 2023. We find the Council was at fault. This caused significant distress to Mr X and his daughter went without provision. The Council has agreed to make several recommendations to address the injustice caused by fault.

The complaint

1. The complainant, Mr X, complained:
   • 1. about the education provision for his daughter when she was unable to attend school;
     2. the Council has failed to deliver the provision in his daughter’s education, health and care (EHC) plan following an appeal to the special educational needs Tribunal;
     3. the Council’s poor communication; and
     4. the Council failed to carry out an annual review in 2023.
2. Mr X said this has caused them significant distress and said his daughter has missed out on provision.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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.
9. 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)
10. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the Council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
11. 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

12. I have investigated part b, c and d of the complaint.
13. I have not investigated part a of the complaint. This is because Mr X had the right of appeal once the EHC Plan was finalised, which he used. Paragraphs 20, 21 and 22 further detail our jurisdiction.

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How I considered this complaint

14. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

16. 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. 

Maintaining the EHC Plan

17. 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)  
18. 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. 

Reviewing EHC Plans

19. 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. 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.

Law and guidance

20. 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)
21. 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.
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Summary of the key events

23. Mr X’s daughter, B, has an EHC Plan. An annual review of the plan was held in April 2022. It was noted B had been having tuition sessions and her attendance had been good up until the spring term.
24. Within the review minutes, B’s preparation for adulthood outcomes were noted. It stated she would be attending a post-16 provision setting. An educational psychology led transition meeting would take place in the summer.
25. In May 2022, Mr X asked the Council for an update on what was agreed at the annual review.
26. In response the Council asked Mr X if he had completed a college application. It also said:
    • a meeting was booked for the 10 June 2022 with an educational psychologist to support B with moving onto post-16 education;
    • it would review the requested amendments once the Council had received the review report; and
    • as Mr X had previously requested a personal budget, it attached a form for him to complete.
27. B’s school sent the Council the review paperwork in June 2022. They requested a full re-assessment of B’s needs.
28. The Council sent Mr X a letter shortly after detailing its decision to amend the EHC Plan.
29. The EHC Plan was finalised in July 2022 and Mr X lodged an appeal to the Tribunal.
30. The Council requested a new psychological advice report for B in August 2022.
31. Mr X told the Council they had visited the college towards the end of August 2022 but said they had to leave due to B’s anxiety. He asked what their options were now the college was not suitable.
32. The Council asked Mr X for details of what B would like to do for further education. It said it could then look at those options.
33. In early September 2022 the Council told Mr X it would like to provide a personal budget for one academic year. It said this was to support and prepare B for a transition to college in September 2023.
34. After a further review the Council amended the EHC Plan in October 2022 which did not name a placement.
35. A pre-action letter was sent to the Council in early March 2023. It was noted since the final plan, no steps had been taken to provide B with an education.
36. The Council arranged for 10 hours per week of 1:1 teaching assistant time and six hours per week of 1:1 tutor time.
37. The Tribunal was heard on 23 June 2023. It was noted that:
    • the Council had initially proposed a mainstream secondary school;
    • since the appeal was registered, parties had now agreed that it would be inappropriate for the special education provision to be made in a school or a post-16 setting;
    • parties had been working together in an effort to agree a programme of education otherwise than at school (EOTAS) or a post-16 setting;
    • the Tribunal considered section I should be left blank and agreement to an EOTAS programme with a transitional step with a view to supporting B back into full time education in the future; and
    • the Tribunal stated B would have IT and printing facilities set up in a way to create a dedicated workstation for her. This may include a laptop or other device.
38. The Council issued the final EHC Plan on the 13 July 2023. It stated:
    • B would receive a programme of education delivered otherwise than in college;
    • the programme would include 5 days per week of educational provision in line with the Council's proposed timetable delivered flexibly, which would include 1:1 tuition;
    • subject to B’s needs, she would receive 15 hours per week education, increasing to full time;
    • access to physical activities at least once per week;
    • the programmed co-ordinator would liaise directly with B on a weekly basis; and
    • B would have IT and printing facilities set up in such a way to create a dedicated workstation for her. This may include a laptop or other device, screen, docking station, keyboard and mouse.
39. Mr X asked the Council for an update on B’s provision towards the end of July 2023. He said:
    • the Council had made no contact with him in order to gain their input in the provision;
    • the Council had 2 weeks remaining from the 5-week deadline and said he was concerned about the lack of communication; and
    • the IT equipment had not been set up.
40. Mr X chased the Council for an update. In response the Council apologised for the delay. It said there had been activity in working towards the Tribunal orders. It said the case had been allocated to an officer who would be contacting Mr X.
41. The EOTAS funding panel minutes noted in August 2023 that funding had been agreed for a laptop, printer, additional screen and lap top USB docking station.
42. The Council told Mr X the costings for equipment would be discussed by its panel the following week.
43. In September 2023 Mr X asked the Council if B could do Pilates instead of swimming as part of the physical activity provision.
44. The Council confirmed the pre-paid card had been sent out in September 2023. It said the funding for IT equipment had been added and stated it would add Pilates provision costs.
45. In October 2023 Mr X told the Council B had missed out on two CAMHS appointments and English tuition. He said this was because the Council had failed to provide the appropriate IT equipment.
46. Mr X told the Council B was not engaging well with the English tutor. In response the Council said it would seek an alternative provider. This included a learning mentor. But said there may be a delay because of the school holidays.
47. A learning mentor met with Mr X in November 2023. Mr X asked the Council for an update on the IT equipment. He also said B required a Pilates mat and asked if he could forward the details.
48. In response the Council said:
    • the learning mentor would provide a non-contact role for three hours per week;
    • the provider would be providing the education resources under their agreement with the Council;
    • it needed the make, model and cost of equipment needed for its panel to consider; and
    • it remained of the view that it has provided adequate funding to purchase a laptop and agreed technology.
49. Mr X contacted the Council in December 2023. He said B had regressed due to inappropriate IT equipment and said she had a breakdown. He said he had brought B the IT equipment she needed and asked how this could be reimbursed. He said the co-ordinator had not made weekly contact with B as per the EHC Plan.
50. In January 2024, Mr X told the Council he had received an email listing elements the Council would not fund. He said he had made several requests for clarity and information about the EOTAS package and what the budget was.

Complaint to the Council

51. Mr X complained to the Council in July 2023. He said:
    • there was a lack of professionalism and the Council had ignored medical diagnoses;
    • the communication had been poor;
    • the annual review in 2022 was delayed;
    • B had been unable to access educational provision in a traditional setting for over five years; and
    • no provision was in place on time.
52. In response the Council said:
    • the Tribunal order outline several actions for the Council to undertake. It said this was completed and the final plan was issued the 13 July 2023;
    • the annual review should be reviewed annually. It noted the Council and school did not comply with the statutory guidance and said the review in 2022 was delayed. It apologised;
    • the case officer met with Mr X on the 31 July 2023 to work on a timetable for B and to review the technology agreed through the Tribunal;
    • Mr X was offered a personal budget in September 2022. But the service did not receive a further response, so it was unable to process it further; and
    • there were areas of communication where it should have been more proactive.
53. Mr X asked for his complaint to be escalated. He said:
    • there had been delays in receiving information from the Council;
    • he was not happy with the amount allocated for IT equipment; and
    • the Council was still failing B.
54. The Council responded at stage two of its complaints process. It said:
    • its stage one response acknowledged it could have done more to proactively improve communication. It said its statutory and assessment team were being supported to develop their communication through training;
    • there had been a delay in securing and delivering provision following the outcome of the Tribunal;
    • officers had been working to secure a bespoke package. But said this was hindered over the summer holidays due to annual leave and providers being unobtainable;
    • it was not acceptable that staff taking annual leave may delay the Council in carrying out its statutory duties. It said steps have been taken to ensure the needs of service are covered all year round;
    • the personal budget awarded for the laptop is in line with the plan. It did not agree with Mr X’s request for a specific branded laptop.

Analysis- was there fault by the Council causing injustice?

Part b of the complaint

55. The Tribunal order was issued on 23 June 2023, and this detailed what actions the Council needed to take. The Council finalised the EHC Plan on 13 July 2023. But there was a delay in securing and delivering the provision. From the evidence seen, the tuition started on the 11 September 2023. This is fault. The Council has acknowledged this. It said this was due to annual leave over the summer holidays and providers being unobtainable.
56. We recognise that the Council has taken steps to ensure the needs of the service are covered all year round. This includes increasing capacity within the service. But this did cause injustice to B as this fault delayed provisions being in place. This also caused significant stress to Mr X.
57. B’s EHC Plan stated she would have access to physical activities at least once per week. In September 2023 Mr X asked for this activity to be Pilates instead of swimming. The Council agreed to add Pilates provision costs for the autumn term.
58. In November 2023 Mr X asked the Council for funding for Pilates equipment and the Council asked him to provide full details of the equipment needed. But Mr X told us the Council has refused to provide the funding. The Council told us it did not agree to this as it is for the tutor to provide the equipment, alongside that of expectations of parents to provide ‘PE kit’. Therefore, the Council has evidenced it did consider the request. This is a decision the Council was entitled to take, and I cannot question it.
59. Mr X told us the Council refused to provide funding for a careers event. The Council has a duty to provide the provision detailed in the EHC Plan. B’s EHC Plan states under section F ‘support from trusted staff to identify and attend events relevant to career/further education planning, such as careers fairs, information sessions and work experience opportunities’. The Council explained this event was not shared to it as a careers event and funding was requested by Mr X retrospectively. The Council considered this to not link in with the EHC Plan. Therefore, the Council considered the request, but it was not obliged to fund this. We therefore could not criticise it.
60. Mr X said he also requested funding for a computer table and photography. I have seen no evidence to suggest the Council has considered this. I acknowledge that the EHC Plan does not include provision relating to photography or a computer table. But the Council should have considered Mr X’s request and communicated its decision to him. This is fault.
61. B’s EHC Plan states she would have IT and printing facilities. It says this may include a laptop or other device. In August 2023 the Council allocated £700 for a laptop, printer, additional screen and lap top USB docking station.
62. Mr X told the Council in October 2023 that B was missing out on English tuition due to inappropriate IT equipment. But the Council said it remained of the view that it had provided adequate funding to purchase a laptop. That is a decision the Council is entitled to take, and I cannot question its decision. The EHC Plan does not specify that a specific type of IT equipment should be provided.
63. In December 2023, Mr X told the Council B had a breakdown. He said she had regressed due to inappropriate IT equipment. Mr X said he had brought B the appropriate IT equipment which he said was an Apple Mac computer. He asked the Council to reimburse him. I asked the Council how it considered this. It said no evidence was provided to suggest why this linked to an Apple Mac being required.
64. But I have seen no evidence to suggest the Council responded to Mr X. This is fault. The Council should have considered Mr X’s request and communicated its decision to him.
65. B’s EHC Plan states the co-ordinator would liaise directly with B on a weekly basis. Mr X told the Council this has not taken place and I have seen no evidence to suggest the Council has put this in place. This is fault. This meant B has gone without the provision in her EHC Plan.

Part c of the complaint

66. The Council recognised in its complaints response that there had been missed opportunities to effectively communicate with the family. It said the statutory and assessment team were being supported to develop their communication through training. But this caused distress to Mr X.
67. In January 2024, Mr X told the Council he had made several requests for clarity and information about the EOTAS package and what the budget was. I have seen no evidence to suggest the Council responded to this. This is fault.

Part d of the complaint

68. Mr X said the Council failed to carry out an annual review in 2023. This was not part of his complaint to the Council. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply.
69. In this case, I am satisfied the Council has had a chance to respond as I asked the Council to comment on this as part of my investigation. In response it said the Council had failed to carry out an annual review in 2023. It said evidence showed that steps were taken to engage and work with the family to support the review process. But it said following a period of non-engagement, this process did not take place. Mr X disputes this. The Council has not provided any evidence to support this. But it has recognised that it did not meet its statutory duty. This is fault. This caused significant stress to Mr X and B went without an annual review.

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Agreed action

70. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:
    • apologise to Mr X and B for the fault identified in this statement;
    • pay Mr X £300 to acknowledge the distress caused to him by the faults identified in this statement;
    • pay Mr X £300 for the educational benefit of B to acknowledge the loss of education between the EHC Plan being finalised in July to the tuition being put in place in September. I have taken the school holidays into account;
    • pay Mr X £200 for the educational benefit of B. This is to acknowledge the lack of weekly contact from the co-ordinator. This is also to acknowledge that there was no annual review in 2023;
    • liaise with Mr X to arrange for B to receive weekly contact from the co-ordinator;
    • liaise with Mr X in response to his request for reimbursement of IT equipment. The Council should consider his request and explain its decision in writing;
    • provide clarity to Mr X around what the agreed EOTAS package is and confirm the budget; and
    • evidence it has properly considered Mr X’s requests for funding detailed in paragraph 60.
71. Within two months, the Council should:
    • remind officers of the statutory duty to review EHC Plans annually; and
    • remind officers of the statutory duty to ensure children or young people receive the special educational provision set out in section F of the EHC Plan.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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