Summary: Ms X complained the Council took too long to complete her daughter’s EHC plan review and issue an amended final EHC Plan. And has failed to provide her daughter with a suitable education or the provision specified in her EHC Plan since October 2022. The Council’s failure to complete the EHC Plan Annual Review in accordance with the statutory timeframes is fault. As is the failure to ensure Miss Y received a suitable education and the provisions in her EHC Plan between November 2022 and June 2023. The Council’s failure to respond to Ms X’s complaint is also fault. These faults have caused Ms X and Miss Y an injustice

The complaint

1. The complainant, Ms X complained the Council took too long to complete her daughter’s EHC plan review and issue an amended final EHC Plan. The review meeting took place in November 2022 but the final Plan was not issued until August 2023.
2. Ms X also complained the Council has failed to provide her daughter with a suitable education or the provision specified in her EHC Plan since October 2022
3. In addition Ms X complained the Council has failed to respond to her formal complaints.

Back to top

The Ombudsman’s role and powers

4. 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)
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. 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 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

How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms X
• Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Education, Health and Care Plans

10. 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 council can do this.
11. 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)  

Reviewing EHC Plans

12. 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.
13. 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)
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. 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.

Alternative provision

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened here

18. Ms X’s daughter, Miss Y has an EHC Plan and attended School 1, a special school. Miss Y started year 11 in September 2022 and in early October 2022 Ms X asked for an urgent annual review.
19. School 1 held an interim review on 16 November 2022. The records say the review was called due to Miss Y’s lack of attendance and to discuss how the school could best support Miss Y. A further review would be arranged to go through the EHC Plan as a year 11 update.
20. The minutes of the review meeting notes Miss Y had been offered support for her emotional wellbeing but had not taken this up. They also note that work had been given to Miss Y to complete out of class but she had refused to complete it. Miss Y agreed that if this was arranged again she would complete the work. Miss Y also said she did not want to go to school. This review did not suggest any changes to Y’s EHC Plan.
21. Following incidents at school, Miss Y has not attended since 23 November 2022. At a meeting with the school in December 2022 School 1 agreed to provide home tuition for Miss Y.
22. School 1 then held an annual review of Y’s EHC Plan on 13 December 2022. This highlighted minor amendments to Miss Y’s Plan. In January 2023 the Council wrote to Ms X confirming it would maintain Miss Y’s plan.
23. Ms X had several meetings with School 1, but Miss Y did not receive any home tuition. She complained to both School 1 and the Council in April 2023 that they were not adhering to the statutory duty to educate Miss Y in an appropriate provision or keep her safe and making reasonable adjustments to meet her educational needs. Ms X asserted Miss Y should receive a minimum of 15 hours of education a week.
24. In her correspondence with School 1 Ms X said the reason Miss Y was not attending school was not because she did not want to be educated but because she was the victim of a gendered attack by her peers at the school. There is no record the Council responded to this complaint.
25. On 25 May 2023 Ms X raised a further formal complaint with the Council. She complained the Council had failed to issue a final amended EHC plan or make any adjustments to allow Miss Y to continue her education. And had failed to provide Miss Y with suitable education provision.
26. Ms X was unhappy that although School 1 had offered to provide one to one tuition to enable Miss Y to take GCSE and functional skills exams for maths and English this had not been provided.
27. She noted that School 1 had agreed at a meeting in February 2023 to provide past exam papers for Miss Y to complete which would identify her areas of strength and weakness. Miss Y had also agreed to complete homework. Ms X complained that although Miss Y had completed the practice papers the school had not marked them or provided feedback.
28. In addition, Ms X said Miss Y had asked to repeat year 11 at School 1 as she had missed so much of her education. Ms X was unhappy the Council has recommended that the school should not offer a place without discussing this with Miss Y.
29. Ms X said the Council’s failings had meant Miss Y had been denied an education and the opportunity to undertake her GCSEs and had missed out on free school meals.
30. The Council acknowledged Ms X’s complaint but did not respond substantively. Ms X asked to escalate her complaint to stage two of the Council’s complaint procedure, but again the Council did not respond.
31. The Council issued a Final EHC plan on 8 August 2023. The plan does not name an educational setting.
32. In late August 2023 Ms X made a claim against School 1 to the SEND Tribunal. Ms X claimed School 1 had not taken sufficient steps to get Miss Y back into education in an environment where she could feel safe. The Tribunal directed that the Council be added to proceedings. The tribunal heard Ms X’s case in May 2024.
33. Ms X has asked the Ombudsman to investigate her concerns about the delays in the EHC plan review process and the Council’s failure to provide a suitable education since October 2022. She is concerned that Miss Y has now left school with no qualifications. Ms X says Miss Y feels as though she had been let down by the Council and that it has discriminated against her as all the other pupils in her year were boys.
34. Ms X would like the Council to fund a tutor for maths and English until Miss Y completes a GCSE level and to compensate her for failing to provide an education. Ms X says Miss Y is currently home educated.
35. In response to my enquiries the Council says there were several annual reviews carried out within a short period of time which may have confused the process regarding legal timeframes. It says in one instance the timeframes were met but acknowledges there was a delay in receiving the annual review paperwork following the year 11 annual review. It apologises that these delays impacted on Miss Y.
36. The Council says it has no records of any alternative education provision provided to Miss Y since October 2022. It has shared information on local colleges but is not aware of Miss Y’s preference for September 2024. The Council has asked its Post 16 team to link in and support Miss Y with the next steps.
37. In relation to the failure to respond to Ms X’s complaint the Council says a draft response was prepared but not finalised or sent due to a change in personnel in the team. The Council had intended to inform both Ms X and the Ombudsman that the process would be put on hold while the disability discrimination case to the Tribunal was heard. But is has no record of this correspondence.

Analysis

38. The Council’s failure to complete the EHC Plan Annual Review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. In this case the Council took 34 weeks. The Council should have issued a final Plan by 6 March 2023 but did not do so until 8 August 2023. Delays of this nature are both concerning and clearly unacceptable.
39. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. The Council has apologised for this delay.
40. I also consider the Council was at fault in not ensuring Miss Y received a suitable education. Councils have a duty to arrange suitable education for a child it knows cannot attend school.
41. The Council was aware Miss Y had not attended since 23 November 2022. In the circumstances I consider the Council should have provided alternative provision. School 1 offered to arrange tuition and to provide work for Miss Y to complete at home, but neither were arranged. Miss Y did not receive any education provision for the majority of her final year of compulsory education. Nor did she receive the provision in her EHC plan.
42. The Council’s failure to ensure Miss Y received a suitable education, while she was of compulsory school age, between late November 2022 and the end of June 2023 is fault.
43. The SEND Tribunal has considered Ms X’s concerns about discrimination at School 1. This was the appropriate forum to consider these concerns.
44. The Council’s failure to respond to Ms X’s complaints was also fault. Ms X’s complaints predated her appeal to the SEND Tribunal and we would have expected the Council to respond in line with its complaints procedure.
45. Having identified fault I must consider whether this has caused Ms X and Miss Y an injustice. The delay in the annual review process and in issuing an amended EHC Plan caused Ms X and Miss Y frustration and uncertainty. It also delayed their ability to exercise her right of appeal to the SEND tribunal.
46. The failure to provide Miss Y with alternative provision means she lost out on an education for a total of about two terms. This is a significant injustice.
47. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 to £2400 per term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.
48. Given Miss Y’s age, the stage of her education and the education and support she missed, I consider a payment of £3,000 would be appropriate. This is based on £1,500 per term for two terms.
49. As Miss Y was not attending school, she also missed out on free school meals.

Back to top

Agreed action

50. The Council has agreed to:
• apologise to Ms X and Miss Y for the delay in the Annual review process and in issuing an amended final EHC Plan, and for not providing alternative education provision. 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 in my findings.
• make a payment to Miss Y of £3,000 in recognition of the impact of the missed education and special educational provision between late November 2022 and June 2023; and
• make a payment to Ms X of £250 to recognise the distress and uncertainty the Council’s actions have caused her;
• make a payment to Ms X equivalent to the cost of the free school meals Miss Y missed between late November 2022 and June 2023, subject to confirmation of Miss Y’s eligibility.
51. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

Back to top

Final decision

52. The Council’s failure to complete the EHC Plan Annual Review in accordance with the statutory timeframes is fault. As is the failure to ensure Miss Y received a suitable education and the provisions in her EHC Plan between November 2022 and June 2023. The Council’s failure to respond to Ms X’s complaint is also fault. These faults have caused Ms X and Miss Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman