Summary: Miss X complained the Council failed to maintain her child, Y’s, Education, Health and Care (EHC) Plan, failed to issue an EHC Plan which met Y’s needs, failed to ensure provision was made in line with Y’s Plan and failed to provide Y with suitable education. The Council was at fault for the delay in finalising Y’s EHC Plan, delay in arranging provision after an emergency review in line with their EHC Plan and not reimbursing Miss X for an online tuition payment or considering reimbursing her for additional resources she bought Y. This caused Miss X frustration, uncertainty and time and trouble and meant Y missed out on education provision. The Council will apologise, make symbolic payments, write to Miss X about its decision on reimbursing her the additional resource payments and carry out a service improvement.

The complaint

1. Miss X complained the Council failed to:
• maintain and update her child, Y’s, Education, Health and Care (EHC) Plan;
• issue a EHC Plan which met Y’s needs;
• ensure provision was made in line with Y’s EHC Plan;
• provide Y with any education from January 2021; and
• appropriately communicate with her and had poor complaints handling.
2. Miss X said Y’s transition to a special school failed and their education other than at school (EOTAS) package was not fully put in place. She said she had to support Y for the last three years emotionally and financially which caused her distress, time and trouble and a financial burden.

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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 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.
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. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
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 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.

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What I have and have not investigated

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. Miss X complained to the Ombudsman in December 2023 about events starting in 2021 but the Ombudsman did not start to consider her complaint until it received the Council’s final complaint response in Summer 2024. Miss X had been aware of her concerns for more than 12 months and therefore part of her complaint is late. There are no good reasons to exercise discretion to investigate events back to 2021 because I am satisfied Miss X could have reasonably complained sooner.
11. I have investigated between mid-February 2023 when Y’s emergency annual review was held until late May 2024 when the Council issued its stage 2 response and issued Y’s final amended EHC Plan. After which Miss X had appeal rights to the special educational needs and disabilities (SEND) tribunal.

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How I considered this complaint

12. I considered:
• the information Miss X provided and spoke to her on the telephone;
• the information the Council provided in response to my enquiries and spoke to a Council manager on the telephone;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
13. Miss 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

Relevant law and guidance

EHC Plans

14. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. Section I is the name and/or type of school/college. Section F sets out the special educational provision needed by the child or young person.

Appeal rights to the SEND tribunal

15. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
16. The courts have established that if someone has appealed to the SEND tribunal or reasonably could have done so, 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)
17. 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. If the parent or young person does not appeal but should have, then the period we cannot investigate ends when the Council makes another appealable decision.

Maintaining the EHC Plan

18. 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).
19. 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 its legal duty. At a minimum we expect it 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.

Reviews

20. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
21. 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)
22. 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.
23. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
24. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

Complaints handling

25. The Council has a two stage complaints process as follows:
• stage 1 – concerns will be reviewed and a written response will be sent within 20 working days; and
• stage 2 – it aims to respond within 20 working days, which can be extended to 40 working days or more if the complaint is complex.

What happened

26. Y has special educational needs, including severe separation anxiety. Y’s first Education, Health and Care (EHC) Plan was issued in early 2021 and Section I named a mainstream primary school, School 1. The key parts of Section F of this Plan included:
• teaching assistant with one to one support for provision such as help with awareness of when to ask for help from trusted adults, meet and greet upon arrival at school and debrief at end of school day, intervention around emotions and develop social skills, physical education support, reviewing sensory processing needs, help with touch typing and spelling programme, communicating feelings and celebrating achievements;
• strategies to self-regulate emotions and reduce and manage anxiety; and
• attendance support plan and weekly transitional timetable.

Background

27. Y stopped attending School 1 in Spring 2021. Y’s mother, Miss X took Y out of School 1 because she felt Y was unsafe at School 1. In summer 2021 the Council agreed a new special educational placement for Y at School 2. In Autumn 2021 Y transitioned to School 2 but Miss X said the placement was not suitable for Y’s needs and Y stopped attending School 2 in November 2022.
28. In mid-January 2023 Miss X and School 2 emailed the Council and said Y’s Section F provision was not being provided and asked for an emergency EHC Plan review. In late January 2023 professionals diagnosed Y with severe separation anxiety.

Mid-February 2023 onwards

29. In mid-February 2023 School 2 held Y’s emergency review. This was attended by Child and Adolescent Mental Health Services (CAMHS), School 2, the Council and Miss X. A phased return to School 2 was discussed at the review by reducing Y’s timetable. Miss X said School 2 could not meet Y’s needs and asked for education other than at school (EOTAS) and a personal budget. The review record recommended amending Y’s EHC Plan.
30. In early March 2023 School 2 made a home visit and agreed to fund online lessons for Y which would be provided by an alternative provision provider, Alternative Provision 1. Miss X said Y received two maths lessons, two science lessons per week and 1 session of Relationships, Sex and Health Education (RSHE) a total of five hours per week through Alternative Provision 1. Miss X said the provision provided was not in line with the provision in Y’s EHC Plan. Miss X said she also paid for other educational equipment and activities for Y.
31. In mid-March 2023 a Council panel agreed to forward Miss X’s request for EOTAS for Y to a manager and a Council finance panel for consideration.
32. In late April 2023 the Council wrote to Miss X to notify her it would amend Y’s EHC Plan. Miss X said Y’s Plan was not updated.
33. In June 2023 Miss X and School 2 contacted the Council several times for an update on Y’s amended EHC Plan but did not receive a reply. In late June 2023 Miss X made a formal complaint to the Council. She said she was unhappy she had not received Y’s draft EHC Plan following the emergency review in mid-February 2023 which made planning for Y’s education in September 2023 difficult, she asked the Council to issue Y’s draft plan urgently.
34. In early July 2023 Miss X emailed the Council about Y’s educational provision for September 2023. She gave the Council information about a new alternative provision provider Alternative Provision 2, which could provide Y with 10 hours of provision per week and gave information on a weekly art lesson. The Council started to consider Y’s educational provision for September 2023.
35. In late July 2023 the Council issued its stage 1 response and said it upheld Miss X’s complaint and explained the Council’s outcomes and next steps. In mid-August 2023 Miss X was unhappy with the stage 1 response and escalated her complaint to stage 2.
36. In mid and late August 2023 Miss X contacted the Council and Alternative Provision 1 about Y’s online lessons for the next academic year. Miss X gave the Council a breakdown of the costs for Y’s educational package for the first half of the Autumn term. The Council agreed to contact Alternative Provision 1 about Y’s online sessions for the new academic year.
37. In late August 2023 the Council refused to escalate Miss X’s complaint to stage 2 of its complaints process because it said the outcome had been met and gave her our contact details if she remained unhappy. Miss X disagreed with the Council’s response and escalated her complaint to the Council. The Council did not respond. A week later the Council sent Miss X an email and said it had forwarded Y’s proposed EOTAS package to a finance panel. Miss X said this was refused because of the lack of educational hours.
38. In September 2023 Miss X said Y did not have any educational provision in place because the Alternative Provision 1 teacher changed, and Miss X said she would not pay the next invoice. In mid-September 2023 Miss X paid £444 for Y’s online lessons with Alternative Provision 1, provided the Council with receipts for additional resources she had bought Y and she provided the Council with a timetable for Y.
39. In late September 2023 Miss X asked the Council to escalate her complaint to stage 2 and received an automatic reply.
40. In late September 2023 the Council requested funding approval through the council finance panel for an EOTAS package for Y. In early October 2023 a Council finance panel agreed a package of 20 hours per week for Y including a trial of the following provision for the first Autumn 2023 half term and proposed it continued for the whole academic year 2023/2024 including:
• 10 hours of one-to-one provision per week with Alternative Provision 2, assisted by Miss X to include English, Maths, Computing, Life Skills and Humanities subjects (including Science, History, Geography and the Arts);
• four hours per week of one-to-one provision to be provided by Alternative Provision 1, assisted by Miss X for Science and Maths;
• two hours one-to-one provision for Marine Science assisted by Miss X;
• two hours of one-to-one provision per week assisted by Y’s father for physical education;
• one hour per week one-to-one provision to be assisted by Y’s father for Photography; and
• one hour per week of Art therapy provided by CAMHS.
41. In early October 2023 Miss X made a new complaint to the Council. She said Y had not been provided any educational provision since January 2021. Later the same week the Council responded to her complaint and said EOTAS had been agreed at a Council panel meeting and the Council finance team would contact educational providers, it said it was still working on Y’s draft EHC Plan and her complaint had been resolved.
42. In mid-October 2023 Miss X chased the Council to raise invoices with Alternative Provision 2. The Council raised purchase orders and invoices with Alternative Provision 2 for a start date in early November 2023.
43. In mid-October 2023 Miss X contacted the Council and said her complaint about Y’s education had not been resolved and did not receive a response from the Council.
44. In late October 2023 Miss X said Y’s online lessons with Alternative Provision 1 stopped because the Council did not respond about funding these sessions.
45. In November 2023 a Council record showed no payments had been made for Y’s Alternative Provision 1 online sessions or for new online mentoring sessions from Alternative Provision 3.
46. In early December 2023 Miss X chased the Council for its stage 2 response and also complained to us.
47. In December 2023 Miss X said Y started to receive online mentoring sessions for one hour per week from Alternative Provision 3.
48. In early February 2024 Miss X met with CAMHS. CAMHS suggested Y received two one hour sessions with Alternative Provision 3. Miss X contacted the Council about the suggested increase in hours. In early March 2024 Y started to receive two one hour sessions with Alternative Provision 3.
49. In mid-March 2024 the Council emailed Miss X about her request for additional hours with Alternative Provision 3, it apologised for the delay in contacting her and asked Miss X to provide CAMHS evidence for the additional provision requested and asked Miss X to provide invoices and receipts for previous expenditure. Miss X responded and said she would provide evidence from CAMHS, she said she had already provided receipts and said Alternative Provision 1 could not be accessed. The Council asked for the Alternative Provision 3 costs and suggested a meeting to discuss the invoices and it would be presented to the Council panel for a decision.
50. In late May 2024 the Council issued its stage 2 response and said:
• Y had an EOTAS package in place;
• it understood Miss X had paid £444 for online lessons for Y. It asked Miss X to provide evidence of the payment and it would action a repayment of £444 to her; and
• it offered a further remedy payment of £500 in addition to the £444 to recognise the time and trouble it caused Miss X to complain.
51. In late May 2024 the Council issued Y’s final amended EHC Plan and gave Miss X her appeal rights.

Enquiries

52. In response to my enquiries the Council said:
• it had reimbursed Miss X £815 for a deposit payment she made for Y’s educational placement starting in September 2024;
• it had not yet reimbursed Miss X for the £444 Alternative Provision 1 payment or the additional resources she had provided receipts for but it would reimburse her the £444 payment and consider the receipts Miss X had provided.
• the Council did not explain the delay in issuing Y’s Final amended EHC Plan.
53. When I spoke to Miss X in late 2024 she said she had not received Y’s final amended EHC Plan, she had not accepted the stage 2 remedy payments from the Council and she received poor communication from the Council. In Spring 2025 Miss X provided evidence of her Alternative Provision 1, £444 payment, evidence of the £815 deposit payment she made for Y’s educational placement starting in September 2024 and she provided evidence of the receipts showing the payments she made for additional resources for Y.

My findings

Delay in issuing Y’s EHC Plan

54. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
55. The Council held Y’s EHC Plan emergency review meeting in mid-February 2023. The Council sent Miss X a decision to amend Y’s EHC Plan in late April 2023 which was a five-week delay and fault. In line with statutory timescales it should have issued Y’s amended Plan by mid-May 2023. The Council did not issue Y’s final amended EHC Plan until late May 2024 which is a delay of 12 months and fault. The delay meant Y remained with an outdated EHC Plan during this period which caused distress and frustration. It also delayed Miss X’s appeal rights, although she did not use them.

Alternative Provision

56. Miss X asked for EOTAS in the emergency review in mid-February 2023. The Council agreed this should go to a Council panel for consideration but this did not take place until early October 2023, which was a significant delay and fault. This caused a delay in Y receiving their EOTAS package as well as frustration and uncertainty to Miss X.
57. Y did not receive any educational provision between mid-February 2023 and early March 2023 and then received online lessons from Alternative Provision 1 from early March 2023 until July 2023. Alternative Provision 1 provided five hours per week in total for Maths, Science and RSHE lessons. Y did not receive the Section F provision in their Plan especially in relation to their support around emotions, social skills, sensory processing needs and managing anxiety between mid-February 2023 and July 2023. This was fault and meant Y missed provision to which they were entitled.
58. Once the Council agreed the EOTAS package for Y in early October 2023 the Council did not pay for all Y’s EOTAS package which meant the provision from Alternative Provision 1 then stopped. There is no evidence the Alternative Provision 3 payments were made. The Council did pay for the EOTAS package by Alternative Provision 2 but the delay meant that did not start until early November 2023.
59. The delays and faults outlined above meant Y’s education was inconsistent since the Council panel agreed EOTAS in early October 2023 and meant they did not consistently receive all or some of the provision in their Plan including:
• Y did not receive any educational provision between September 2023 and early November 2023;
• between November 2023 and late May 2024 Y received 10 hours of provision per week from Alternative Provision 2;
• between December 2023 and late May 2024 Y received provision from Alternative Provision 3 increasing from one hour weekly sessions in December 2023 to two hour weekly sessions in February 2024.
60. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In deciding on a figure, we consider factors such as the severity of the child’s SEN as set out in their EHC Plan, any educational provision full time or part time, without some or all of the specified support that was made during the period. I have taken account of these factors and a payment of £1,500 per term between mid-February 2023 and early November 2023 and £1,300 per term between early November 2023 and late May 2024 is appropriate.
61. In response to my enquiries Miss X provided evidence she paid a £815 deposit for a new educational placement for Y starting in September 2024. The Council provided evidence it had already reimbursed Miss X £815, which was appropriate. The Council had not yet reimbursed Miss X £444 for the Alternative Provision 1 payment she made or considered reimbursing Miss X money for the additional resources she made for Y. The Council has agreed to reimburse Miss X £444 for the Alternative Provision 1 payment and consider the receipts Miss X provided the Council for the additional resources Miss X bought Y. The Council will also apologise to Miss X for the delays which caused her frustration and time and trouble chasing the Council for the payments.

Communication and complaints handling

62. The Council has offered Miss X £500 to acknowledge the time and trouble she was put to complaining about the matters in this case. This amount is appropriate and in line with our guidance on remedies.
63. In other complaints to the Ombudsman we investigated in 2023, we found a similar delay in completing annual reviews and poor communication. We asked the Council to issue a reminder to staff to adhere to the timescales for annual reviews and remind staff to respond to communication from parents without delay, which it completed. Given the timescale overlaps with the timescale for this complaint no further action is required at this time.

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Action

64. Within one month of the final decision the Council will:
1. apologise to Miss X and pay her £500 for the frustration and time and trouble caused to her by the faults identified;
2. apologise and reimburse Miss X £444 for the Alternative Provision 1 payment; and
3. apologise to Y and Miss X and pay Miss X £5,600 in recognition of missed provision between mid-February 2023 and late May 2024.
65. Within two months of the final decision the Council will consider the receipts provided by Miss X for the additional resources she bought Y and write to Miss X with its decision about the receipts and make any payment. If the Council decided not to pay all of the receipts provided by Miss X it will write to her and explain its reasons.
66. Within three months of the final decision the Council will review its procedures around how it holds panel meetings and makes decisions around EOTAS requests. The panel will take place to ensure timely decisions are made so statutory timescales are met and a child’s provision is provided without delay.

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Final decision

67. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take action to remedy the injustice and prevent recurrence of the faults.

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Investigator's decision on behalf of the Ombudsman