Summary: Miss D complained the Council failed to provide the provision in her daughter’s Education, Health and Care Plans issued in 2022 and 2023. She also complained the Council failed to complete an annual review of her daughter’s Education, Health and Care Plan. We find the Council was at fault for failing to provide the provision in Miss D’s daughter’s Education, Health and Care Plan issued in 2023. It also failed to complete an annual review in line with statutory timescales. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Miss D complained the Council failed to provide the provision in her daughter’s (E) Education, Health and Care (EHC) Plans issued in 2022 and 2023. She also complained the Council has failed to complete an annual review of E’s EHC Plan.
2. Miss D says the matter has caused distress and upset and she has lost out financially. She says E has missed out on the provision she is entitled to.

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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. 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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

7. 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). This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
8. Miss D appealed to the SEND Tribunal about the placement in E’s EHC Plan that was issued in August 2022. She continued with her appeal after the Council issued an amended EHC Plan and named a different school. E did not attend either school. This was linked to the disagreement about the educational placements. Therefore, we have no jurisdiction to investigate what provision the Council provided to E from August 2022 until October 2023.

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How I considered this complaint

9. I considered information from Miss D. I made written enquiries of the Council and considered information it sent in response.
10. Miss D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

11. 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. 
12. 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)  
13. 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

14. 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.

What happened

15. This chronology provides an overview of key events and does not detail everything that happened.
16. E has special educational needs. Miss D and E moved to the Council’s area in April 2022. The Council agreed to issue E with an EHC Plan in May. It issued the final EHC Plan in August.
17. Miss D appealed to the SEND Tribunal about the content and placement in E’s EHC Plan in September.
18. The Council issued an amended EHC Plan for E in November and named a different school. Miss D continued with her appeal because she says the school could not meet E’s needs.
19. Miss D emailed the Council in July and August 2023 and said it had failed to arrange an annual review for E. The Council emailed Miss D in September and offered a date for the annual review. Miss D responded and said she could not attend its proposed date. She offered an earlier date. The Council responded and said Miss D’s proposed date was not possible. It asked her to provide alternative dates. Miss D responded and reiterated her previous request for an earlier date.
20. The SEND Tribunal issued its order in early October. It ordered the Council to amend the placement (School Y) and provision in E’s EHC Plan.
21. The Council had a meeting with School Y and Miss D to plan E’s transition. School Y said it had concerns about delivering Speech and Language Therapy (SALT) and Occupational Therapy (OT) for E. An officer from the Council sent an internal message to another officer and said the Council would need to make referrals to the NHS for E to receive this provision.
22. The Council issued E’s amended final EHC Plan in late October. This included OT and SALT intervention in section F.
23. Miss D complained to the Council in December. She said it had failed to secure the section F provision in E’s EHC Plan. She also said it failed to complete an annual review of E’s EHC Plan.
24. The Council responded to Miss D’s complaint in March 2024. It said School Y was aware of the officer to contact if it needed any support in providing the section F provision in E’s EHC Plan.

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Analysis

25. The Council issued E’s EHC Plan in August 2022, and so it should have reviewed it in August 2023. The Council failed to do so. This is fault. The date of an annual review is not affected by an ongoing appeal to the SEND Tribunal. There was some discussion between Miss D and the Council about an annual review date. However, this did not progress. This is fault, which has caused Miss D frustration and upset. She lost the opportunity to discuss E’s progress and outcomes, and her appeal rights to the SEND Tribunal have been frustrated. I understand the Council has only recently (November 2024) conducted an annual review of E’s EHC Plan.
26. The Council has a legal and non-delegable duty to ensure a young person receives the special educational provision in their EHC Plan. School Y said it was concerned about delivering SALT and OT in the meeting in October 2023. The Council was aware of this, but it took no action to resolve this matter. It also did not progress or deal with the internal email about the NHS referral. Therefore, E has not received this provision. Miss D also raised the issue in her complaint, but the Council failed to do follow matters up. The Council’s complaint response is poor and fails to address the issue.
27. The Council’s fault has caused E a significant injustice. She has been without the provision she is legally entitled to which will have a negative impact on her progression. It has also caused Miss D frustration and upset that E has not received what she is legally entitled to.

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Agreed action

28. By 15 January 2025 the Council has agreed to:

• Apologise to Miss D for the injustice caused by fault in this statement.
• Pay Miss D £350 for her frustration, upset, lost opportunity and frustrated appeal rights to the SEND Tribunal.
• Pay Miss D £2,400 to reflect the lack of section F provision for E from late October 2023 to late May 2024. We suggest Miss D uses this payment for E’s educational benefit.
• Take proactive steps to resolve the matter of E’s missing section F provision.

29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. There was fault by the Council, which caused Miss D and E and injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman