Summary: Ms X complained on behalf of Ms Y about delays issuing and reviewing Ms Y’s Education, Health and Care Plan. She also complained the Council did not put in place special educational provision for Ms Y. We have found the Council at fault for failing to put in place adequate provision for Ms Y and for delaying issuing an Education, Health and Care Plan following an annual review. The Council agreed to apologise, make payments for loss of education to Ms Y and distress caused to Ms X.

The complaint

1. Ms X complains about the way the Council handled her daughter, Ms Y’s Education, Health and Care Plan, namely the Council:
1. Delayed issuing a final Education, Health and Care Plan after carrying out an Education, Health and Care needs assessment.
2. Did not put in place suitable education or the special educational provision Ms Y was entitled to after she stopped attending school.
3. Delayed completing Ms Y’s annual review and did not issue a new Education, Health and Care Plan within the statutory timeframe.
4. Did not respond to correspondence she sent to the Council.
5. Did not handled her complaint in line with its complaints process.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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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What I have and have not investigated

6. I have not investigated concerns Ms X raised about the content of Ms Y’s Education, Health and Care Plan or whether the provision was suitable. It is the role of the SEND Tribunal to consider issues about the content of an Education, Health and Care Plan, including the placement named or the special educational provision.

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How I considered this complaint

7. As part of this investigation I considered the information provided by Ms X and the Council. I discussed the complaint with Ms X over the telephone. I made enquiries with the Council and considered the information received in response.
8. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
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 found

EHC Plan

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 the council can do this. 

Timescales and process for EHC assessment 

11. 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. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s educational placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
13. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person.
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section I: The name and/or type of educational placement.

Maintaining the EHC Plan

14. 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)  
15. 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. 

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 take place. The process is only complete when the council issues a decision about the review.
17. 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)
18. 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.
19. For young people moving between post-16 institutions, the review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the review process should take account of this. In all cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the local authority must review and amend, where necessary, the young person’s EHC plan at least five months before the transfer takes place. (SEN Code paragraph 9.181)

What happened

20. There has been extensive correspondence between Ms X and the Council. In this section I have just summarised the key events. I have not referred to every single contact or communication. This section does not contain all the information I considered during my investigation.
21. Ms X’s child, Ms Y, has special education needs.
22. On 27 July 2022, Ms X asked the Council to carry out an EHC needs assessment for Ms Y. The Council agreed to do this.
23. The Council sent a draft EHC Plan to Ms X on 23 November 2022 and issued a final EHC Plan on 9 December 2022.
24. Following this Ms X contacted the Council as she was not happy with the content of the final EHC Plan. Ms X said the Council rushed through the final EHC Plan and did not include all the professional advice. Ms X also argued Ms Y needed an autism coach and the Council should include this as provision in Ms Y’s EHC Plan. As Ms X did not receive a response she contacted the head of the Council’s SEND service. The Council gave Ms X a new caseworker.
25. In late January 2023, Ms X’s new case worker told her the Council would not amend the EHC Plan and Y’s school could ask for this at the next annual review. Ms X raised further concerns with the Council about the content of the EHC Plan and the Council agreed to look at amending the final EHC Plan it issued in December 2022.
26. The Council sent Ms X an amended draft EHC Plan on 2 February 2023. On 6 February 2023, the Council held a transition meeting for Ms Y. There are no notes recorded for this meeting. Ms X said she told the Council Ms Y was keen to study Art Foundation and has found a course that was suitable at a College. Ms X said the Council agreed to complete the EHC Plan and consult Ms Y’s preferred College.
27. Following this meeting Ms X also asked the Council how it would fund the autism coach. In late February 2023, Ms X sent the Council her responses to the draft EHC Plan.
28. On 10 March 2023, the Council issued Ms Y a final EHC Plan. This included an autism coach for Ms Y. The Council listed the autism coach in section G of the Plan. The autism coach was due to deliver a significant amount of the Section F provision. The EHC Plan also included provision from an outside Speech and Language Therapist (SALT).
29. After receiving this Ms X asked for further amendments to the EHC Plan and said the Council had not made the changes she originally asked for. Ms X made a formal complaint to the Council about how it had handled this.
30. The Council issued Ms Y a further EHC Plan on 27 April 2023. This contained the same section F provision as the previous final EHC Plan sent in March 2023.
31. From March 2023, Ms X said Ms Y was not attending school. On 4 May 2023, Ms X emailed the Council and told it Y’s school were not putting in place the provision mentioned in the Plan as Ms Y’s school had not received funding for the autism coach. Ms X said Ms Y was no longer attending school due to an acute mental health crisis and could not sit their final A-Level exams.
32. On 18 May 2023, the Council told Ms X it could hold an emergency annual review meeting for Y. In June 2023, Ms X chased a response from the Council several times for a suitable date for the annual review meeting. In late June 2023, the Council told Ms X the annual review meeting would take place on 20 July 2023.
33. On 20 July 2023, the Council held an annual review meeting for Ms Y’s EHC Plan. Ms Y was in year 13 so was about to leave their educational placement. The notes from the annual review meeting showed the Council was going to amend Ms Y’s EHC Plan. The notes said Ms Y was going to receive a package of EOTAS with a mentor or coach. The educational psychologist said Y had never received SALT input. Ms X asked for an updated educational psychologist report for Ms Y as she believed Ms Y’s needs had changed.
34. Following the annual review meeting it took until 13 October 2023, for the Council to receive the educational psychologist’s report.
35. In late October 2023, the Council contacted several providers to source an autism coach for Ms Y.
36. The Council sent Ms X notification of its proposed amendments and an amended draft EHC Plan on 12 January 2024. Ms X sent her comments on the draft Plan back to the Council on 26 January 2024.
37. In February 2024, the Council reached out to another provider for the autism coach provision, however this provider did not have staff with experience of working with autism.
38. Between late January 2024 and March 2024, several meetings between Ms X and the Council to discuss the content of Ms Y’s EHC Plan took place. This was mainly around to content of the educational psychologist’s report and Section F provision. Ms X said these were collaborative meeting to jointly write the EHC Plan.
39. The Council issued Y’s final EHC Plan on 12 March 2024. This listed Ms Y’s educational setting as EOTAS. Ms X said she did not receive this document. The Council confirmed in response to my enquiries there was no record it sent the Plan to Ms X.
40. In July 2024, the Council contacted another provider to source an autism coach. Ms X did not want this provider as it could not meet Ms Y’s needs. This was because the provider did not offer face to face provision for Ms Y.
41. In October 2024 the found a provider for educational provision for Ms Y. This is a tuition service which provides education and support to young people with SEND. The Council told us in response it our enquiries it believed this provider could provide the section F provision in Ms Y’s EHC Plan. The Council said the provider had a mentor who could provide the support of an autism coach while the Council looked for an autism coach for Ms Y.
42. In January 2025, the alternative provider identified by the Council told it Ms X did not wish to use its mentoring service and did not wish to discuss education courses for Ms Y as she was not ready for this.
43. In April 2025 the Council held an annual review of Y’s EHC Plan. The Council said it agreed to amend Section F in relation to the autism coach. The Council said it considered this would better fall under health provision.

Ms X’s complaint

44. Ms X complained to the Council on 18 October 2023. Ms X said Ms Y had not received provision. Since Ms Y’s annual review the Council had not put anything in place for Ms Y and had not funded the autism coach. Ms X also complained the Council’s SEND team did not respond to her emails chasing this up.
45. The Council responded to Ms X’s complaint on 15 November 2023. The Council:
• Recognised it did not respond to some of Ms X’s emails in a timely way.
• Recognised there were delays from when the Council started Ms Y’s annual review and Ms Y receiving a final EHC Plan. The Council said this was due to delays getting an updated educational psychologist report.
• It confirmed the funding agreement for the autism coach in early September 2023. The Council said the officer responsible would contact Ms X to arrange payments for this.
• It held meetings with Ms X in October 2023 and had further meetings scheduled for November 2023 to resolve the issues and disagreements with Ms Y’s EHC Plan.
46. On 10 January 2024, Ms X asked the Council to consider her complaint at stage two. Ms X said:
• The Council did not complete Ms Y’s EHC Plan within the statutory timescale and it had taken 39 weeks to issue this.
• Ms Y’s EHC Plan was not fit for purpose and the Council had not made the changes Ms X asked for. Ms X said the EHC Plan did not meet Ms Y’s needs.
• The Council did not secure Ms Y’s section F provision in their EHC Plan. Ms X said the Council had never provided Ms Y with an autism coach although she had sourced a coach to provide three sessions in February 2023. Ms X said Ms Y was not currently getting the provision in their EHC Plan.
• The Council missed the deadline to carry out Ms Y’s transition review and she had to call for an emergency annual review.
• The Council had not provided evidence Ms Y was in full time education or getting EOTAS. PA said she could not book Ms Y onto courses for EOTAS.
• Council staff did not respond to her emails and on several occasions she had to contact the head of SEND to get a response.
• Ms X asked the Council to raise a complaint on previous occasions but did not get a response.
47. The Council provided its final response to Ms X on 28 March 2024. The Council said:
• It issued Ms Y’s EHC Plan within the statutory timescales. The Council said it issued a final Plan on 9 December 2022, and this was within the 20 week deadline.
• There was no requirement for it to carry out an annual review of Y’s EHC Plan by 31 March 2023. The Council said it held a transition meeting in February 2023 to discuss the EHC Plan, preparation for adulthood and Y’s next steps for education.
• It held an emergency annual review in July 2023 and agreed to ask for an EOTAS package for Ms Y and move the autism coach to section F of the EHC Plan. The Council said it issued several proposed EHC Plans to work with Ms X to ensure the Plan was an accurate reflection of Y’s needs. The Council recognised it delayed in issuing an EHC Plan following this annual review.
• It should have provided an autism coach and it was making attempts to commission one but was having difficulty doing so.
• It accepts it delayed sending responses to both Ms X’s stage one and two complaints.
48. In response to my enquiries the Council said it made the following payments to Ms X:
• £1,595 for a learning mentor Ms Y was supposed to have. This covered the period March 2023 to October 2023.
• £1,430 for autism coaching sessions from March 2023 up until 29 January 2024.
• £2,310 for a personal education budget from January 2024 to end of the school year in July 2024.
49. Ms X has disputed receiving these payments but has said she received a cheque for £1,595 which she did not cash.

Findings

Complaint a) Delays issuing a final EHC Plan after carrying out an EHC needs assessment.

50. The Council received Ms X’s request for an EHC needs assessment on 27 July 2022. It issued a final EHC Plan by 9 December 2022. This was within the 20 week statutory timeframe.
51. I recognise Ms X was unhappy with this EHC Plan and considered it was not fit to meet Y’s needs, however she could have appealed this to the SEND Tribunal.
52. I do not consider the Council was at fault for not issuing a final EHC Plan within the statutory timeframe, however it is not clear why it decided to continue to try and amend the final EHC Plan. It would have been better practice for the Council to have directed Ms X towards the SEND Tribunal if it believed this EHC Plan was fit for purpose. Or if it believed it could not issue an EHC Plan it considered was suitable within the 20 week timeframe, to tell Ms X this and recognise the delays.

Complaint b) The Council did not put in place suitable education or the special educational provision after Y stopped attending school

53. Ms X said Ms Y was out of school from March 2023. Email correspondence showed Ms X made the Council aware, in early May 2023, Ms Y had been signed off school and could not sit final exams. Ms X also told the Council Y did not have an autism coach so was not getting the provision in her EHC Plan. It is not clear what steps the Council took to look into Ms X concerns at this stage.
54. Ms Y’s attendance records showed that from March 2023, she still attended school but on a reduced basis until the end of term. Ms Y was on the school roll until the end of the summer term 2023. Most of Ms Y’s provision in her EHC Plan was supposed to be delivered at school, however Ms Y did not have an autism coach. While I recognise the autism coach was at first a health provision, the autism coach was supposed to deliver a significant amount of the Section F provision. On balance I am satisfied Ms Y did not receive the provision which the autism coach was to deliver. This was fault.
55. Once Ms Y left school, she was supposed to receive a package of EOTAS from September 2023. The Council did not put in place package of EOTAS or any of the Section F provision from September 2023. This was fault.
56. The Council has never provided Ms Y with an autism coach. Ms Y should have had this from March 2023. The Council explained it found this difficult to source. The evidence it provided showed it tried to find providers in October 2023, February 2024, July 2024 and December 2024 but was unable to do so.
57. The Council did offer Ms Y alternative provision in October 2024, however this was not taken up. While this would have provided Ms Y with education and some of the section F provision in her EHC Plan she would still not be getting help from an autism coach who was supposed to deliver some of her provision. The Council said this provider could be a substitute for the autism coach, however despite this the Council still agreed to try to source an autism coach for Ms Y. On balance I am satisfied Ms Y has not received provision after she left school in September 2023, until October 2024, when the Council made an offer of provision. This was fault.
58. I am also satisfied that had Ms X and Ms Y taken up this offer of provision in October 2024, Ms Y would still not have received all of the Section F provision in her EHC Plan as she still would have been without an autism coach.
59. As Ms Y has not received the provision she should, she has fallen behind in her education and development. This has also caused injustice to Ms X. Ms X has had to remain at home to support Ms Y since September 2023.
60. Where fault has resulted in a loss of provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to recognise the impact of that loss. In this case I consider that from March 2023 to September 2023, Ms Y was getting education and some provision at school. From September 2023 to October 2024 I cannot see that Ms Y was getting provision or support. From October 2024, the Council made an offer of alternative provision which was not accepted.
61. The Council has said it has made payments, totalling £5,335, to Ms X covering this period for the autism coach, mentor and personal budget. Ms X disputes receiving this money, therefore I have calculated a remedy based on the fact Ms X did not receive these payments. If the Council provides evidence to the Ombudsman that Ms X received this money it can deduct this from the total amount recommended in this statement.

Complaint c) The Council delayed completing Ms Y’s annual review and did not issue a new EHC Plan within the statutory timeframe

62. Ms Y was in her final year at school so was due to move into further post-16 education in September 2023. The SEN code of Practice says the Council should complete a review at least five months before a young person is due to move to an alternative post-16 provider. The Council did not hold a review of Ms Y’s EHC Plan until July 2023. This was fault.
63. I recognise the Council had recently issued a final EHC Plan for Ms Y in March 2023. But when issuing this it did not hold a review of the December 2022 EHC Plan. I cannot see the Council properly considered the provision listed and whether this was suitable or needed changing. Given Ms Y was due to leave her educational placement in July 2023 and was hoping to start a new placement somewhere else, the Council should have carried out a review.
64. After the Council held the annual review meeting on 20 July 2023, it decided Ms Y would receive EOTAS and the Council needed to amend her EHC Plan. The Council did not issue Ms Y’s final EHC Plan following this review until 12 March 2024. This is significantly later than the 12 week deadline from the review meeting. I am satisfied the Council still knew Ms Y was without provision and should have issued a final EHC Plan sooner if it believed it had received all the correct advice from those involved with Ms Y.
65. After completing the final EHC Plan for Ms Y on 12 March 2024, the Council did not send a copy of this Plan to her or Ms X. This was fault. Ms X did not know she had a right to appeal the content of the EHC Plan to the SEND Tribunal and did not know what provision the Council had listed in the EHC Plan. The Council has recognised it did not send the EHC Plan to Ms X and has put in place new systems to stop this happening again, including getting Statutory Assessment Managers to approve EHC Plans.
66. These delays have caused a significant injustice to Ms Y. She did not have an up to date EHC Plan in place given the Council decided to amend it at the annual review and was not getting provision at this time.

Complaint d) The Council did not respond to correspondence

67. There were instances where Ms X was contacting the Council and had to chase up several times for a response, such as before the July 2023 annual review. Ms X also had to contact the head of SEND several times on order to progress matters. This was fault.
68. The Council recognised in its complaint response to Ms X it had not always responded to her emails. This is welcomed, however it has not offered Ms X any remedy for the injustice she experienced.

Complaint e) Did not handled her complaint in line with its complaints process.

69. The Council uses a two stage complaints process. At stage one the Council has 10 working days to respond. At stage two it has 20 working days to respond.
70. For both Ms X’s stage one and stage two responses, the Council did not provide these within the timeframes outlined in its complaints process. This was fault. The Council has recognised this and apologised.
71. While this is welcomed, Ms X had to wait a longer time than she should have to complete the Council’s complaints process. Ms X contacted the Ombudsman before she had completed the Council’s complaints process due to the delays at stage two.

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Agreed action

72. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the above faults identified.
• Pay Ms X £500 to recognise the avoidable distress, and time and trouble she suffered as a result of delays issuing Ms Y’s EHC Plan after the annual review, and for the level of communication she received.
• Pay Ms X £200 to recognise the loss of opportunity to appeal she suffered as a result of not being sent a copy of the final EHC Plan in March 2024.
• Pay Ms Y, £6,500 to recognise the loss of provision. I have calculated this at £500 for the time she was on roll at school until September 2023 and £6,000 for the period covering September 2023 to October 2024. (If the Council provides evidence to the Ombudsman that Ms X received the £5,335 it said it paid to her, it can deduct this from the total amount recommended in this statement)
• Continue to pay Ms Y, £150 per month until the Council puts in place an autism coach or issues a final EHC Plan following the latest annual review which removes the autism coach. The Council should start these payments from October 2024.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have completed my investigation and found the Council was at fault and this caused injustice to Ms X and Ms Y. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman