Summary: Mrs X complained the Council failed to provide her son, Y suitable, full-time education, failed to provide all the provision set out in Y’s Education, Health and Care (EHC) Plan, completed infrequent annual reviews and stopped Y’s alternative provision in September 2023. The Council was at fault for delay with Y’s annual review in 2023, delayed identifying an educational placement for Y to start in September 2023 and poor handover between staff. The faults caused Mrs X and Y frustration, uncertainty and caused Mrs X avoidable time and trouble. The Council will apologise, make a symbolic payment and provide evidence it has put in place its suggested service improvements.

The complaint

1. Mrs X complained the Council:
• failed to provide her son, Y with a suitable, full-time alternative education since 2018;
• failed to secure all special educational provision set out in Section F of Y’s Education, Health and Care (EHC) Plan since 2018;
• completed infrequent annual reviews since 2020; and
• did not continue Y’s alternative provision placement in September 2023 which resulted in him not having a suitable education or provision at the start of the academic year.
2. Mrs X said this caused her distress and mental and physical health problems. She said it caused Y mental health problems and he had missed out on provision to which he was entitled.

Back to top

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. 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
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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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.
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)
10. 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.

Back to top

What I have and have not investigated

11. Mrs X complained to us in early January 2024 about events starting in 2018. Mrs X had been aware of her concerns for more than 12 months and therefore part of her complaint is late as set out in paragraph four above. There are no good reasons to exercise discretion to investigate events back to 2018 because I am satisfied Mrs X could have complained sooner. I will consider events from early January 2023.
12. Mrs X had a right of appeal to the SEND tribunal when a decision was made in early July 2023 to maintain Y’s final amended EHC Plan. It was reasonable for Mrs X to appeal against the type of placement named in Y’s final amended EHC Plan, although she did not use that appeal right. I have not investigated this matter further as it was reasonable for Mrs X to use that appeal right as set out in paragraph six.
13. As Mrs X did not use the appeal right against the EHC Plan I will investigate any lost provision until November 2023 when the Council issued its stage 2 response.
14. On this basis I have investigated the period from January 2023 to November 2023.

Back to top

How I considered this complaint

15. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

17. 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.
18. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
19. 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. Parents must consider mediation before deciding to appeal. 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.

Maintaining the EHC Plan

20. 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).
21. 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.

Reviewing EHC Plans

22. 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.
23. 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)

What happened

24. Y lives with his family and has special educational needs. Y has had an Education, Health and Care (EHC) Plan since 2019.
25. In late March 2022 the Council issued Y’s final amended EHC Plan. Section I named a mainstream secondary school until July 2022 and the type of college as a mainstream post-16 college from September 2022, but did not specify which college. Section F set out the following key provisions:
• speech and language therapy (SALT) programme to understand social communication and sound production. This is on a one to one or small group basis directed by the NHS Speech and Language service;
• daily stretches directed by the NHS physiotherapist service;
• every two hours during the day for 10 minutes follow a sensory diet programme, reviewed termly by a qualified Occupational Therapist (OT).
26. In late May 2022 the Council held Y’s annual review.
27. In late July 2022 a Speech and Language Therapy (SALT) report was issued following a review of Y’s speech and language. The report recommended Y no longer needed ongoing SALT support but it would complete a further review if professionals or Mrs X felt it was needed again in the future.
28. In January 2023, Y attended alternative provision, Alternative Provision 1, four days a week for six hours per day. This included one to one practical experience with a tutor in a subject Y was interested in and some interaction with peers. The Council approved funding for one academic year. The Council also put in place a direct payment package to support Y develop his independence skills and access the community with an adult.
29. In early February 2023 a sensory diet consultation took place by an OT at Alternative Provision 1. The record said Y was taught with one other pupil and the OT saw Y in Alternative Provision 1 and said Y was engaged and had a good relationship with his tutor and peer.
30. In mid-March 2023 Y was discharged from physiotherapy. The Physiotherapist said it provided a physiotherapist programme with exercises and it had done training with Y’s key worker at Alternative Provision 1 and Y should continue with the exercises.
31. In early June 2023 a Council record showed a Sensory Integration Therapy assessment was conducted with Y at Alternative Provision 1.
32. Three days later Y’s annual review was held. The record from the meeting said:
• Y attended Alternative Provision 1 and had made good progress;
• Y’s direct payment package had helped Y access the community with a support worker. Mrs X said Y still needed this support;
• a discussion about next steps for Y in September 2023 focused on Alternative Provision 1, qualifications Y could achieve and Y accessing Maths and English provision through a mainstream college. Mrs X raised concerns Y was not ready to go to a mainstream college and would prefer to stay at Alternative Provision 1 for another year and then consider Maths and English;
• Y said he wanted to stay at Alternative Provision 1 and the help he received from the direct payment in accessing the community was working well;
• funding at Alternative Provision 1 would stop in late July 2023; and
• it recommended no changes needed to Y’s needs or educational provision and the Plan should be maintained.
33. In early July 2023 the Council sent Y a decision letter, to maintain his March 2022 EHC Plan which continued to specify a mainstream college as the type of placement he should attend. It told Mrs X of her appeal right to the tribunal if she disagreed with the content of the Plan. Mrs X did not appeal to the SEND tribunal.
34. Council officers held a next steps meeting and considered different choices to Alternative Provision 1. It also considered Alternative Provision 1 continuing for a short time with transition to a new setting and home tuition. The Council offered support, information and advice to Y and Mrs X about future educational provision for Y.
35. Mrs X said Y became distressed and had increased anxiety. She said Y did not want to attend a large mainstream college in September 2023.
36. In late July 2023 Mrs X complained to the Council. She said:
• the Council was in breach of its Section 42 legal duty and it did not provide Y with provision set out in Section F of his EHC Plan;
• Y’s annual reviews were not yearly;
• Y’s last annual review meeting recommended continuing education at Alternative Provision 1 where Y attended four days a week. The Council declined Alternative Provision 1;
• Alternative Provision 1 was the only successful provision for Y;
• Y had no provision for September 2023 and the Council would be in breach of its duty to provide provision in Section F of Y’s EHC Plan; and
• she was aware they could appeal the decision to maintain Y’s EHC Plan to the SEND tribunal but it was a lengthy process and Y’s education would be missed further.
37. During July 2023 the Council offered support to Y and Mrs X to help explore future educational provision and support for Y.
38. In late September 2023 the Council responded to Mrs X’s stage 1 complaint and said:
• there was no Council record which showed Mrs X raised any objections to Y’s final amended EHC Plan issued in late March 2022. Mrs X should have raised concerns then;
• Council officers were unclear if it initially followed the sensory diet programme set out in Section F of Y’s final amended EHC Plan. It said it raised this in Y’s annual review held in early June 2023;
• an annual review took place in late May 2022 and early June 2023. It acknowledged to avoid delay and uncertainty about Y’s placement in September 2023 it should have undertaken an earlier annual review;
• a Council officer said following the June 2023 annual review they thought it decided Y would attend a new placement in September 2023. The Council officer said a next steps meeting explored different educational choices for Y. The Council agreed it should have put in place transition arrangements earlier;
• Y’s EHC Plan maintain decision letter sent in early July 2023 was not clear. It had been interpreted as Alternative Provision 1 would continue. Lessons about review correspondence and transition arrangements had been identified;
• lessons were learnt about the need for handover arrangements when relevant officers left the Council so parents did not have to repeat information to new officers; and
• the Council apologised and offered Mrs X and Y a symbolic payment of £150 each. This was for time and trouble caused by not agreeing a placement earlier for the start of the September 2023 academic year and uncertainty if the sensory diet programme had been followed. The Council also said it had allocated £850 which it would use for Y’s continuing development and education. It said it had identified lessons for Y to attend.
39. In late September 2023 the Council put in place commissioning arrangements for Y’s educational placement.
40. In early October 2023 Mrs X remained dissatisfied with the stage 1 response and escalated it to stage 2.
41. In late October 2023 the Council sought Y’s views on a suitable placement and agreed a contract with Alternative Provision 1. Mrs X said Y did not attend Alternative Provision 1 due to his anxiety and low mood.
42. In mid-November 2023 the Council responded to Mrs X’s stage 2 complaint and continued to offer Mrs X and Y the payments set out in the stage 1 response. The Council said meetings had taken place with the sensory diet programme providers and invoices showed the provision was delivered between January 2023 and July 2023.
43. Mrs X remained unhappy and complained to us.

Enquiries

44. In response to my enquiries the Council suggested it would take the following action:
1. it would review ongoing use of letter templates.
2. it would review practice and arrangements in relation to annual reviews to ensure they were understood by staff, appropriate and timely.
3. it would review current handover arrangements to ensure robust and consistent practice is in place and being followed with appropriate oversight.
4. it would decide whether it could make changes to computer systems to support service improvements. The Council said it secured new funds and would carry out the changes later this year.
5. it would update and amend Y’s EHC Plan.
45. In response to my enquiries Mrs X said she did not appeal the decision to maintain Y’s EHC Plan in July 2023 because she was going through the Council complaints process. The Council said Mrs X had not raised this complaint with it.
46. In response to my enquiries the Council provided records to show between January and July 2023 Y received all the Section F provision. The Council said at first Y did not receive a sensory diet programme but he did when he attended Alternative Provision 1 between January and July 2023 and it recorded a termly review. The Council said it had invoices to show delivery of the provision.

My findings

Annual Review delays

47. The Regulations state councils must arrange for EHC Plans to be reviewed at least once a year. This process is only complete when the council issues a decision about the review. Y’s annual review was held in late May 2022 and Y’s next annual review was held in early June 2023. In early July 2023 the Council decided to maintain Y’s EHC Plan. This was a delay of six weeks. It caused Mrs X and Y frustration and caused uncertainty about Y’s placement for September 2023. The Council said it had already learnt lessons and put appropriate service improvements in place to avoid the same fault occurring again in the future. The Council has agreed to take action to remedy the injustice caused to Mrs X and Y, set out in paragraph 53.

Missed provision

48. The Council provided evidence to show Y received the Section F provision between January 2023 and July 2023. It said Y was provided provision when he attended Alternative Provision 1 and accessed the community with a support worker through the direct payment. There was no fault in the Council’s actions.
49. Y was attending Alternative Provision 1 for a one-year course which ended in July 2023. The Council had an ongoing duty to provide the specialist educational provision in Section F of Y’s Plan. When the placement ended the Council did not identify a placement for Y to attend until late October 2023 when it agreed Y could attend Alternative Provision 1 again. In the interim it did not make any arrangements for Y to receive the specialist educational provision in their Plan. This half term delay was fault. However when the Council arranged for Y to attend Alternative Provision 1, he did not attend. Therefore I cannot say on the balance of probabilities whether Y would have been able to attend Alternative Provision 1 had the Council arranged it earlier. This caused Mrs X and Y uncertainty.
50. The Council offered Mrs X and Y £150 each for time and trouble caused by not agreeing a placement earlier for the start of the September 2023 academic year and uncertainty if the sensory diet programme had been followed. As stated above in paragraph 48 I did not find fault with the sensory diet programme in my investigation period, however £150 is an appropriate remedy for the uncertainty caused to Mrs X and Y by the delay.
51. The Council stated it would allocate an amount of money for Y’s educational benefit. It did not specify what that amount would be spent on or how it would remedy the injustice Y was caused. The Council has agreed to take action to remedy the injustice, set out in paragraph 53.

Poor staff handover

52. The Council accepted poor handover of Y’s EHC Plan when staff members left which caused Mrs X to repeat information. This caused Mrs X avoidable time and trouble and the Council will apologise and provide evidence it has put a new process in place.

Back to top

Agreed action

53. Within one month of the final decision the Council will:
1. apologise and pay Mrs X £300 and Y £300 for the frustration and uncertainty caused by the six week delay in finalising Y’s 2023 annual review and the uncertainty caused by the delayed placement between early September 2023 and late October 2023. This includes the £150 each the Council had already offered outlined in paragraph 50;
2. apologise to Mrs X for her avoidable time and trouble repeating information because of changes with Y’s SEND officers; and
3. provide evidence the Council has completed the actions identified in paragraph 44.

Back to top

Final decision

54. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent reoccurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman