Summary: Mrs E complains her son’s school was following an out-of-date Education, Health and Care Plan. We uphold her complaint due to fault by the Council in its actions around this. Mrs E also complains about the school’s actions around a teacher’s use of language, inappropriate emails and suspensions of children with special educational needs. Our decision is these are internal management issues within the school, and so not in the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mrs E, complains her son’s (X) school was following an out-of-date Education, Health and Care (EHC) Plan.
2. Mrs E also complains about the school’s actions around a teacher’s use of language, inappropriate emails and suspensions of children with special educational needs (SEN).

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. 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)
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. 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)
9. 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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What I have and have not investigated

10. A significant part of Mrs E’s complaint is about the way the school dealt with issues around X’s behaviour. She says the incidents sometimes occurred during the lunchbreak where the EHC Plan had specific actions about monitoring X. She also complains about the comments of teachers.
11. We cannot investigate most matters about the internal management of schools, as they are not part of the Ombudsman’s jurisdiction. We can investigate the Council’s monitoring of schools’ actions in delivery of EHC Plans (for the reasons set out at paragraph 16). Our approach to this is set out at paragraph 17. For these reasons, my investigation of the actions of the school is limited.
12. Mrs E complained to the Ombudsman in December 2023. That means any events before December 2022 are not something we would normally investigate, for the reasons set out at paragraph 4. But I have considered the effect of the delay in the second review meaning that Mrs E, not unreasonably, was awaiting the outcome before complaining. And then she had to complain again to the Council in December, before complaining to the Ombudsman. So I have used my discretion to investigate the complaint back to the January 2022 review.

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How I considered this complaint

13. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs E;
• made enquiries of the Council and considered its response;
• spoken to Mrs E;
• sent my draft decision to Mrs E and the Council and invited their comments.

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What I found

Legal and administrative background

14. Children with special educational needs may have those needs met through an EHC Plan. 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.
15. 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. 

16. 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)
17. 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.
18. 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.
19. 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. The Council must then issue any final amended EHC Plan within eight weeks of the amendment notice. So a final Plan must be issued within 12 weeks of the review meeting.

What happened

Background

20. In 2021 Mrs E and her family moved to the County. At that time X already had an EHC Plan. The Council used the contents of this Plan, in its entirety, to write its own Plan. X started at a new school in the Autumn term.
21. Included in Section B of the 2021 Plan is the following:

“[X]’s learning can be impacted by the sensory environment as he is sensitive to loud noises. ... After break/lunch times, there is a need to address social issues before he can begin to concentrate on learning tasks. Adults need to monitor [X]’s moods relating to these events as he is not yet consistently able to tell staff when there has been a problem...”

“At school when outside [X] has one to one discreet support, or he cannot bring himself to come back in school and would run and hide due to sensory overload. At lunchtime he splits the time 50/50 inside and outside.”

22. Included in Section F of the 2021 Plan is the following:

“Provision of structured support at break times (especially over the longer lunch break) to provide [X] with a clear routine to follow and adult facilitation to support interaction with peers at break times as needed e.g. organised club activities.”

The 2022 review

23. Mrs E advises that, in the Autumn 2021 term, X was involved in some incidents with other children during school breaks. In December she contacted the Council’s SEND Team to discuss her concerns about the school’s response.
24. In response, in January 2022 the school hosted a review meeting of the EHC Plan. Mrs E says at the meeting the school and a Council SEN Officer agreed X needed one-to-one support during social times. In an internal email (from 2023) one Council officer explained to another that the review meeting led to an action plan about one-to-one support at lunchtimes.
25. The Council did not issue a new EHC Plan following the meeting. Nor did it write to X’s family, as it should have. The Council says the plan was not amended “…due to capacity”.
26. Mrs E says after that “everything was going well”. But towards the end of May the school contacted her after an incident at the school involving X and another child. There was a further incident in June.

The 2023 review of X’s EHC Plan

27. In September, after the summer vacation, X returned to school. The school was in contact with Mrs E during that month about incidents involving X. This resulted in an October email from the school’s headteacher who noted that the 2022 review meeting had not led to an updated EHC Plan for X, but the Council was in the process of updating it. The headteacher advised the school had reinstated X’s break time cover.
28. But in January 2023, following further incidents, the headteacher advised Mrs E that X’s EHC Plan did not say he needed one-to-one supervision during free time, although they all agreed it was helpful when staff were available to support X quickly.
29. The school hosted an annual review meeting of X’s EHC Plan at the end of January. In March and April Mrs E contacted the Council asking for a draft EHC Plan. The Council issued two drafts. The point of dispute was whether X needed discreet one-to-one support during the lunchtime break.
30. The Council issued a final amended EHC Plan on 18 May. Section F, of the Plan said:

“Provision of structured support at break times (especially over the longer lunch break) to provide [X] with a clear routine to follow and adult facilitation to support interaction with peers at break times as needed e.g. organised club activities.”

“At school when outside [X] has one to one discreet support. The school will need to look at strategies to reduce this and allow [X] to have age-appropriate independence.”

31. Mrs E complained about the review process. On 19 May a Council Manager in its SEND Team (Officer 1) wrote to Mrs and Mr E. The letter advised as follows:
• the school confirmed the discreet one-to-one support for X was in place and would continue;
• when there had been a period without incident, the school would look into strategies to begin to reduce this support. This would support X to gain understanding of social interactions;
• the Council had moved the one-to-one support from section B of X’s Plan, to section F. That ensured the school had a legal duty to provide the support;
• Officer 1 offered his “genuine apologies” for failing to follow the review process in 2022. He acknowledged the undue stress and anxiety this had caused the family;
• in 2022 the Council was employing interim officers due to unforeseen absence. But the Council accepted it should have supervised the review more closely. It sincerely apologised for not ensuring that was done;
• the Council also apologised for the 2023 delay. It said it would prioritise the next annual review of X’s EHC Plan.
32. The Council upheld the complaint and awarded the family £600 for not amending X’s EHC Plan in 2022, £200 for the delay in amending the Plan in 2023 and £300 for the family’s distress.
33. In October Mrs E had a meeting at the school following an incident there. A letter following that meeting noted Mrs E had cited Section B of the 2021 EHC Plan. It cited part of Section F of X’s Plan that was in both versions (see paragraphs 22 and 30).
34. In November Mrs E met with the school’s head teacher and Officer 1 and the school’s special educational needs co-ordinator (SENCO). Mrs E says at that meeting it was noted the school was following X’s old EHC Plan.
35. In December 2023 Mrs E made a new complaint to the Council: that it was not ensuring X's EHC Plan was followed by the school. She noted many incidents since her son started in 2021, where she felt her son was unsupported and blamed by the school. When the family had asked the school to provide one-to-one discreet support at lunchtimes the school said it was not in his EHC Plan.
36. The Council’s response said it could only refer Mrs E to its earlier complaint response. Mrs E responded to advise her complaint was not dealt with in the May response. Her complaint was the school was following the wrong version of X’s EHC Plan.
37. The Council’s response noted that, at the November meeting, the SENCO had assured Officer 1 the school was aware of the new Plan, but one colleague had been using the previous Plan. Officer 1 said he would contact the school again to ask for confirmation of the name of the person who would be providing the one-to-one support.
38. Mrs E complained to the Ombudsman after being signposted by the Council.

Was there fault by the Council?

39. The Council did not make a decision following the 2022 review. That was fault, as it did not follow the statutory requirements.
40. In 2023 the Council did review X’s EHC Plan and issued an amended version. But it was delayed in doing so, by around four weeks (see paragraph 19). That was fault. The main change to X’s Plan was to move the section about one-to-one supervision during breaks from section B to section F of his Plan.
41. After it issued the 2023 revised EHC Plan, the next contact I can see the Council had with the school about the delivery of X’s EHC Plan was after the October incident. This led to Officer 1 meeting with the school and clarifying what the Council was expecting of it, relating to X’s one-to-one supervision. The Council acted promptly when the issue was brought to its attention. So I do not see fault with its actions then.
42. However, I agree with Mrs E her complaint was not covered by the Council’s May 2023 response – as it was about the delivery of the revised EHC Plan and not about the delay in finalising that Plan. So it was fault for the Council to not take a new complaint about that issue.

Did the fault cause an injustice?

43. On the balance of probabilities, it is likely the delay in revising X’s EHC Plan meant X missed the inclusion of the one-to-one supervision in Section F of his Plan, from around the end of March 2022 (eight weeks after the review) to June 2023, when the Council did issue a revised Plan. Mrs E reports incidents at the school in May, June and September 2022 and January 2023. Some of these incidents might have been avoided if the Council had updated X’s EHC Plan as the law required it to do.

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Agreed action

44. Mrs E has already accepted a remedy from the Council for faults it identified. With reference to our Guidance on Remedies, the remedy the Council made for the 2022 missed EHC Plan revision is inadequate as there were a series of incidents in May, June, September and January that might have been avoided but for the fault.
45. The remedy the Council made for the delay in finalising the 2023 annual review is comparable to what our Guidance suggests, as is the payment for distress. The Council has already apologised for faults it has identified.
46. A further payment for distress is needed for the frustration in the Council’s response to Mrs E’s (December 2023) complaint.
47. So, within one month of my final decision, the Council has agreed to my recommendations to make Mrs E the following symbolic payments:
• £300 (in addition to the payment already made) to recognise the missed provision resulting from not completing the 2022 annual review process. Mrs E should use this, as she sees fit, for X’s educational benefit;
• £100 for the frustration and upset the decision on her December 2023 complaint was likely to have led to;
• £150 for her avoidable time and trouble over the period.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman