Summary: Mrs X complained the Council failed to ensure her child Q received suitable education and provision in their Education, Health, and Care Plan. There was fault by the Council which caused Q to miss special educational needs support. This also caused distress to Q and Mrs X. The Council agreed to apologise, evidence it is taking action to ensure Q’s provision is in place, and pay a financial remedy. It will also review its processes and issue reminders to staff.

The complaint

1. Mrs X complains the Council did not provide suitable education and special educational needs (SEN) provision for her child Q from 2022 to 2024. She says the Council:
1. failed to ensure Q received the SEN provision in their Education, Health, and Care (EHC) Plan;
2. failed to ensure Q received the social care support in their EHC Plan;
3. failed to ensure Q received suitable alternative education when they were out of school in 2023 and 2024;
4. held an early annual review of Q’s EHC Plan in late 2023 without consulting Mrs X, to remove provision from the Plan. This review did not follow statutory requirements and timescales; and
5. delayed in responding to Mrs X’s complaint about these issues.
2. Because of this, Mrs X says Q missed education and SEN support. Q’s mental and physical health worsened meaning they needed supervision at all times which impacted the whole family.
3. Mrs X wants the Council to:
• apologise to both parents, and separately apologise to Q;
• ensure suitable education and SEN provision is in place immediately;
• provide compensation for the impact of Q’s missed education and SEN provision;
• repay Mrs X the cost of assessment reports for Q that she had to arrange privately because of the Council’s failings; and
• hold staff accountable to prevent recurrence of issues in future for other families.

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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. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation 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 organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) We can only look at what happens in a school if it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision as set out in Section F of a young person’s Education, Health, and Care Plan.
8. 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)
9. 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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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council and relevant law, policy and guidance.
11. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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 found

Legislation and guidance

Education, Health, and Care (EHC) Plans

13. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or young person. 
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.

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)  

Reviewing EHC Plans

16. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

EHC Plan Personal Budgets

18. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
19. A child’s parent or the young person has the right to request a Personal Budget during a statutory review of an existing EHC Plan.

EHC Plan appeal rights

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 Tribunal in this decision statement.
21. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the SEN provision specified, or the school or placement specified in the EHC Plan; and
• amendment to these elements of an EHC Plan.

22. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
23. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider any is agreement. If the Tribunal makes a finding on the social care elements, it is non-binding. (It is not a statutory right of appeal).
24. 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)
25. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started; and
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal.

Alternative education while out of school

26. 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.
27. The section 19 duty 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) This means it does not apply after year 11.

What happened

28. The Council issued a final EHC Plan for Q in December 2021. Mrs X appealed to the SEND Tribunal about this Plan, and it ordered the Council to amend the Plan.
29. In September 2022, Q started year 11. Shortly after this on 27 September 2022, the Council issued an amended EHC Plan in line with the Tribunal’s order.
30. In December 2022, Q’s school held an EHC Plan review meeting to consider Q’s upcoming transition to post-16 education. Following this review, the Council issued an amended Plan in March 2023.
31. In September 2023, Q started year 12 at a new, post-16 educational setting. Q stopped attending school due to their mental health in October 2023. Mrs X says Q was too unwell to attend any school at that point.
32. In November 2023, Mrs X complained to the Council that Q had not received provision in Section F and Section H1 of their EHC Plan since July 2022, the end of year 10. A couple of weeks later she made another complaint that Q was out of school altogether with no suitable education in place. The Council asked Q’s school to hold an EHC Plan review meeting to see if the Plan should be updated. This meeting took place in December 2023, after which Mrs X made another complaint to the Council about how the review process was being conducted.
33. In January 2024, the Council had not responded to Mrs X’s complaints, so she came to the Ombudsman. We told her she would need to wait for the Council to respond before we could consider it. After we chased the Council, it issued a Stage 1 complaint response in March 2024. After further correspondence from Mrs X, it then responded at Stage 2 in May 2024.
34. After we began our investigation, the Council issued a final amended EHC Plan for Q on 29 July 2024. This completed the review started at the December 2023 review meeting. Mrs X appealed to the SEND Tribunal about the provision in this July 2024 EHC Plan.

What I have and have not investigated

35. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in January 2024, so we would usually only look at what happened after January 2023.
36. I have investigated events after the Council issued the final amended EHC Plan for Q on 27 September 2022, following the order from the SEND Tribunal. The Council took longer than it should have to respond to Mrs X’s complaint and caused a delay of around four months in the Ombudsman being able to investigate. Also, Q had health problems during this time which meant it took Mrs X longer to complain while she prioritised this. Therefore, there is good reason to look back further.
37. I can consider any continuing injustice caused by the Council’s faults before Mrs X brought her complaint to us. However, I cannot consider new issues which arose after Mrs X came to us. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. Mrs X says there have been recent issues since the Council issued its final complaint response in May 2024:
• Mrs X disagrees with the Council’s decision to remove some of Q’s provision in the 29 July 2024 amended EHC Plan. This is a new issue so I cannot consider it. Also, Mrs X appealed about this Plan to the SEND Tribunal, which is another reason I cannot consider it (as explained at paragraph 24). Mrs X raised various issues with how the Council conducted the review process that led to the July 2024 Plan. I cannot investigate the EHC review process that led to that provision being in the Plan. This is connected to the issue Mrs X has appealed, that is, that she disagrees with the provision that ended up in the Plan. Mrs X also said she arranged and paid for private assessments for Q herself as part of the review process; she felt she had to do this because the Council’s review process was flawed. Where a family has paid for private reports, we may recommend a council should repay some or all the costs. However, this is only where we decide a council accepted the advice and used it to write the EHC Plan, and the family has not appealed to the Tribunal about the final Plan. Mrs X has appealed to the Tribunal about the final Plan so I cannot make any recommendation about this. Mrs X’s views about a lack of proper assessments arranged by the Council are connected to the issues she is appealing.
• When the Council issued the 29 July 2024 EHC Plan, it also told Mrs X it had decided not to award a personal budget so she could arrange the provision in Q’s EHC Plan herself. It told Mrs X she had a right to seek a review of this decision. I cannot consider this decision by the Council to not award a personal budget. It is a new issue and Mrs X must follow the Council’s review process first.
• If Mrs X wants to complain about how the Council ensured Q received their EHC Plan provision for the 2024/2025 school year, this is also a new issue which I cannot consider.
38. Mrs X would need to make a new complaint to the Council about these new events first. If she remains dissatisfied following the Council’s response, she could then make a new complaint to us to ask us to consider it.

My findings

Alternative education while out of school

39. The Council’s duty under section 19 of the Education Act 1996 to provide suitable alternative education for children out of school only applies to children of compulsory school age.
40. Q’s attendance issues began in September 2023, at the start of year 12, and they stopped attending altogether in October 2023. After July 2023, Q was not of compulsory school age and the Council no longer had a duty to secure them suitable alternative education, equivalent to full-time. However, the Council’s duty under section 42 of the Children and Families Act, to ensure Q received the SEN provision in section F of their EHC Plan, still applied. This applies until the Council issues a decision to cease to maintain the Plan, or until the person turns 25 years old.

Delivery of EHC Plan

41. The September 2022 EHC Plan set out the provision Q should receive. This remained broadly the same for the March 2023 EHC Plan. I have summarised the key provision Q should have received according to the Plan, which Mrs X says was not in place, in the table below. I have also explained my findings about what Q received from September 2022 to July 2024.

42. The Council did not meet its duty to secure all the provision set out in Q’s September 2022 and March 2023 EHC Plans. This was fault.
43. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
44. The Council said it was not aware there were issues with the EHC Plan not being delivered until Mrs X made her November 2023 complaint. I accept the Council’s position about this. It appears Mrs X’s contact about the issues before this was with Q’s school. However, I still consider the Council at fault, because it failed to:
• check provision was in place after it issued the substantially different plan in September 2022 following the SEND Tribunal order;
• check provision was in place again after Q moved to a new educational setting in September 2023;
• once Mrs X complained in November 2023 that provision was not in place, properly investigate her concerns. Although it asked Q’s school to hold a review to see if the Plan should be changed now Q was out of school, it did not take any steps to consider how far it was possible to deliver Q’s existing provision outside a school setting to ensure it met its duties in the meantime. It has still not properly investigated and provided evidence of what was delivered to Q in responding to enquiries from the Ombudsman.
45. This fault by the Council meant Q missed provision they were entitled to. The Council should remedy the injustice caused by the six terms of Section F SEN provision missed from September 2022 to July 2024.
46. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
47. In deciding an appropriate financial payment to recognise the impact of Q’s missed SEN provision, I considered the following.
• During this period, Q was in their final year of secondary school and first year of post-16 provision. Our guidance on remedies says we consider the final year of secondary school, and first year following a transfer, to be more significant periods in a child’s school career.
• Q missed key therapies and interventions which may have had a significant impact on their ability to access and engage with their education.
48. The Council should provide a financial remedy of £1,500 per term. It should also make a further payment to recognise the distress caused to Q and Mrs X by the Council’s failings.

EHC Plan review process from December 2023 to July 2024

49. As I have previously explained, I cannot consider matters connected to Mrs X’s appeal about the July 2024 EHC Plan. I can, however, look at matters that do not have a right of appeal to the Tribunal, are not connected to an appeal, or are not a consequence of an appeal. This includes delays in the review process before the Council issued the final Plan and the appeal right started.
50. Following the December 2023 review meeting, the Council should have issued a final amended Plan within twelve weeks, by 14 March 2024. It delayed issuing the Plan by over four months, which was fault.
51. I considered whether Q missed added provision because of these delays. The July 2024 Plan recognised Q was no longer on roll of an educational setting. It therefore included fifteen hours a week of one-to-one tutoring, and two hours a week of support with wellbeing, and career/personal development. This had not been in the Plan previously. Q received six hours a week of tutoring from May 2023 onwards even though it was not yet in the Plan. Q missed some tutoring and wellbeing/ development support during the four-month delay period where the final Plan should have been in place. The Council should provide a further financial remedy of £900 to recognise this missed term of education.

Complaint handling

52. The Council’s complaint procedure says it will respond at Stage 1 within 20 working days, and then Stage 2 within 25 working days. The Council took longer than it should have to respond to Mrs X’s complaint which was a delay of around four months. This was fault.
53. The Council’s failure to properly handle the complaint compounded Mrs X’s distress and caused her further injustice.

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Action

54. Within one month of our final decision the Council will:
1. apologise to Mrs X and Q for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology;
2. provide evidence to the Ombudsman it is taking action to ensure the SEN provision set out in Q’s EHC Plan is in place; and
3. pay the family a total of £5,800, comprising of:
1. £5,400 to recognise the SEN support Q missed;
2. £200 to recognise the avoidable distress caused to Q’s parents by the Council’s failings; and
3. £200 to recognise the avoidable distress to Q.
55. Based on the faults identified in this case, I would usually recommend actions the Council should take to ensure it reviews EHC Plans within statutory timescales. However, we recently made recommendations to address similar fault in other complaints about this council. In June 2024, the Council provided evidence to us that it had increased staffing to improve timeliness of EHC Plan reviews. Therefore, I do not consider it appropriate to make further recommendations about this now.
56. Within three months of our final decision the Council will:
1. decide what changes are needed to its EHC Plan processes or staff training to ensure it has systems in place to:
1. check provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
2. when a child with an EHC Plan is out of school, ensure it meets its duty to secure the provision in the Plan as far as possible outside a school setting; and
3. properly investigate complaints or concerns that provision is not in place at any time.
2. issue a reminder to its SEND service staff who respond to complaints about its complaints procedure timescales.
57. The Council will provide us with evidence it has complied with the above actions.

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Decision

58. I have completed my investigation. There was fault by the Council which caused Q to miss SEN support. It also caused distress to Q and Mrs X. The Council agreed to my recommendations to remedy this injustice. It will also review its processes and issue reminders to staff.

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Investigator's decision on behalf of the Ombudsman