Summary: Mrs K complained the Council caused delays in the Education, Health, and Care plan process for her son (X) and failed to provide him with a full-time education when he was excluded from school. We found the Council at fault for failing to adhere to the statutory timescales and not providing enough alternative provision for X. It also caused significant delays in its complaints process and failed to respond to some requests from Mrs K. The Council will apologise and make payment to Mrs K to acknowledge the injustice she and X experienced as a result.

The complaint

1. The complainant, Mrs K, complained about the Council’s handling of her son’s (X) education since Summer 2023. She said it:
• failed to provide a full-time education when X was excluded from school, including the special educational needs provision set out in his EHC plan;
• caused delays in the EHC plan process following an annual review;
• communicated poorly and failed to respond to some of her questions and request for a personal budget; and
• failed to follow required processes during the amendment process of X’s EHC plan, including how it consulted schools and considered views of X, parents, and professionals.
2. Mrs K also said it failed to hold an annual review in 2022.
3. As a result, Mrs K said X experienced distress and had a loss of educational provision. She said she also experienced distress, had time and trouble to get the Council to address her concerns, and had costs to provide X with educational support.

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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 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. 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.
8. 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)
9. 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.

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What I have and have not investigated

10. I have investigated Mrs K’s complaint from July 2023 until November 2023 when X final amended EHC plan was put in place. This includes the alternative provision the Council put in place, her personal budget request, how it communicated with her, and the Council’s delays in completing the annual review process.
11. I have not investigated Mrs K’s complaint about:
• the Council’s failure to ensure annual reviews were completed in 2022 or before. This is because this part of her complaint is late;
• how the Council consulted with Mrs K, professionals, and schools as part of the annual review and amendment process of X’s EHC plan, or the school placement. This is because Mrs K has since appealed the contents of the plan and the school placement to the SEND Tribunal; and
• the education and provision X received after the final EHC plan was issued in November 2023. This is because Mrs K has appealed the contents of the plan to the SEND Tribunal.

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How I considered this complaint

12. As part of my investigation, I have:
• considered Mrs K’s complaint and the Council’s responses;
• discussed the complaint with Mrs K and considered the information she provided;
• considered the information the Council provided in response to our enquiries; and
• had regard to the relevant law, guidance and policy to the complaint.
13. Mrs K 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

Education, Health, and Care plans

14. 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. 

Annual reviews

15. 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.
16. 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)
17. 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.
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. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

20. 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)
21. 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.
22. 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.

Personal budgets

23. 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.
24. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
25. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

26. Mrs K’s son, X, has been diagnosed with health conditions which impacts his ability to engage and receive an education in school.
27. In 2021 the Council issued an Education, Health, and Care (EHC) plan for X which listed a mainstream school and set out the support he should receive so he could access and engage with his education. This included:
• 1:1 support from an appropriately trained adult;
• 1:1 or small group activities in various areas throughout the week;
• strategies and routines to manage anxiety, sensory issues, and social skills; and
• mentoring support for his wellbeing.
28. The EHC plan said the annual review of the plan should be completed in May 2022. Mrs K said no review was held.
29. In January 2023 X’s school allocated him to its special resourced provision to be able to meet his needs.
30. In June 2023 X’s school informed the Council it had arranged his annual review to take place in July 2023. The school held the review which was attended by only Mrs K and the school. It recommended for the EHC plan to be maintained but for X to be allocated to its special resourced provision due to his high level of support needs.
31. Shortly before the academic year ended and a week after the Annual review X was involved in an incident in school. The school decided to permanently exclude him and notified the Council. This also led to a safeguarding enquiry regarding X’s behaviour.
32. In August 2023 the Council started arranging alternative provision for X to attend from the start of the 2023/24 academic year. This was for 4.5 hours per week of 1:1 online tutoring and three hours per week of online wellbeing sessions. It provided X with a laptop.
33. In September 2023 Mrs K asked the Council for an update on X’s EHC plan and school listing. She also requested a special school to be consulted.
34. The Council told Mrs K it was consulting with schools and agreed a specially resourced provision was needed. However, it would not consult with her preferred school as this was a special school and it found X’s needs could be met by a mainstream school. It also explained the safeguarding enquiry was being closed, but until then, it had to adhere to the restrictions imposed.
35. In September 2023 the Council told Mrs K it intended to amend X’s EHC plan, and it would share its amendment notice. It consulted with one school with a special resource provision.
36. Mrs K chased the Council for X’s amended EHC plan and school consultations. She was unhappy it had only consulted with one school and questioned why some information about X was not shared with the school.
37. In October 2023, the Council’s panel considered X’s case. It also received the consultation response from the school, which was it could not meet X’s needs and the Council accepted this. It subsequently consulted with four other schools. It informed Mrs K and told her why it only shared some information with schools as part of the consultations. It also shared its draft EHC plan with her.
38. In November 2023 Mrs K complained to the Council and asked it questions about its processes. She had help from a friend to set out her concerns. This included:
• X had waited four months for a school placement, and she criticised the Council’s process for school consultations. She believed X should be in a special school, if mainstream schools said they could not meet his needs;
• concerns around amendments and crossed out sections to X’s draft EHC plan. She also asked why professionals and the social worker for the safeguarding concern were not invited to the annual review;
• X had lost education and the alternative provision he received of 4.5 hours online provision was not enough. She asked if he could be held back a year and for more alternative provision and counselling until a school placement was found. She suggested education other than at school through a personal budget should be considered as some special educational needs provision was not being delivered to X; and
• she felt the council’s communication with her was poor as she had to chase it for updates.
39. In late November 2023 the Council issued X’s final amended EHC plan, which listed a mainstream school where he would have access to a special resource provision.
40. Mrs K appealed X’s final amended EHC plan to the SEND Tribunal. She disagrees with the school placement and the special educational needs provision in his plan.
41. In February 2024 Mrs K asked the Ombudsman to consider her complaint. She had not received the Council’s complaint response.
42. We asked the Council to provide its complaint response to Mrs K. The Council said it had a backlog of complaints. It first provided its complaint response in May 2024. It found it:
• had not adhered to the statutory timescales for progressing X’s annual review in July 2023 and to issue his final amended EHC plan;
• aims to maintain regular communication with the families it works with. It apologised if Mrs K felt this was not her experience. It explained it had a high workload within its SEND service which impacted its ability to offer the level of service it aims to. It said it was taking steps to minimise unnecessary delays and improve communication; and
• could not comment on X’s educational provision and the school placement set out in his final amended EHC plan which was issued in November 2023. This was because Mrs K had appealed to the SEND Tribunal.
43. Mrs K acknowledged the Council could not consider matters which was being appealed to the SEND Tribunal. However, she said the Council had not responded to her personal budget request and request for increase in alternative provision. She said X had not received the education he was entitled to and as set out in his EHC plan. She also questioned the school consultation process and the process it followed before completing X’s amended final EHC plan in November 2023.
44. In response to our enquiries the Council said:
• Its education programme provider carried out an assessment in Autumn 2023 of X’s case and decided 15 hours of tuition and three hours of wellbeing support was appropriate. The expectation was six hour of this should be self-directed work. It found this to be equivalent to a full-time education. It therefore did not agree it failed to provide X with adequate educational provision following his exclusion from school.
• It agreed it had caused delays in the annual review process and to amend X’s EHC plan, which may have caused delays in X starting in his new school. It found this did not cause him an injustice as he had access to his alternative provision. It said it had developed a team to manage caseloads to address the backlog of annual reviews within its area.

Analysis and findings

The annual review process

45. The Council accepted it failed to complete X’s annual review process and issue his final amended EHC plan within the statutory timescales.
46. I agree the Council was at fault for causing unnecessary delays in adhering to its duty. While I acknowledge a safeguarding concern was ongoing and it was consulting with schools, this does not impact its duty and it could have issued a plan without a named school, only the type of school.
47. I cannot say what injustice the Council’s eight-week delay may have caused X. This is because:
• the provision of the final amended EHC plan is being appealed to the SEND Tribunal; and
• the school placement in the final amended EHC plan is being appealed to the SEND Tribunal, and any injustice from a delay in finding a school placement is the same injustice as Mrs K’s concerns about the alternative provision X received.
48. However, I am satisfied the Council’s delays caused Mrs K some distress and uncertainty.

Alternative provision and personal budget

49. The evidence shows the Council arranged for X to receive alternative provision from September 2023 following his school exclusion. I have found no delay in this part of the complaint.
50. However, the evidence shows:
• the Council said it arranged for 7.5 hours of alternative provision in September 2023. This was three hours of wellbeing support online and 4.5 hours of tuition online.
• in response to our enquiries the Council said it had assessed X to need 15 hours of alternative provision support which consisted of three hours of wellbeing support online, six hours self-directed work at home, and tuition; and
• Mrs K says X received a total of 4.5 hours of alternative provision per week. This was three hours of tuition and 1.5 hours of wellbeing support.
51. I have considered what the Council and Mrs K said and X’s EHC plan in place until November 2023. I have also had regard to X’s provision needed to be online due to the safeguarding restrictions in place at the time and the fact 1:1 provision is more intensive compared to classroom teaching.
52. However, I found the Council’s offer of alternative provision was not equivalent to a full-time education for X and did not appropriately consider the special educational needs provision he should receive. In particular, I note the Council’s view that X should complete six hours of ‘self-directed’ work to be inappropriate given his personal circumstances and needs.
53. X did receive some provision which he was able to engage with, I therefore found he experienced some loss of education between September and November 2023, when his final amended EHC plan was issued.
54. In addition, Mrs K asked the Council for more alternative provision and special educational needs provision for X. She also asked it to consider education other than at school (EOTAS) and a personal budget. The Council’s failure to respond to her request and provide her with a decision was fault. I found this caused her some further distress and a loss of her right to request a review of its decision.

Complaints handling and communication

55. Mrs K complained to the Council in October and November 2023. She did not receive a complaint response from the Council until May 2024, which was after she had brought her concerns to the Ombudsman, and we had asked the Council to provide its response. This was fault.
56. Also, the Council’s complaint response did not address all of her concerns. While the Council could not provide a response to matters which were subject to the SEND Tribunal appeal, it should have provided a response to her personal budget request and reasons why it believed its alternative provision offer was suitable. This was fault.
57. I found the Council in most parts communicated and responded to Mrs K’s questions and concerns, and I would not expect it to frequently communicate with her if there are no updates. However, she needed to chase the Council unnecessarily on some occasions for responses. This included requests around school placement, alternative provision, and her personal budget request. Its failure to response to some of her communication in a timely manner was therefore fault.
58. I am satisfied the Council’s failure to respond to Mrs K’s requests and her complaint, within the timescales set out in its Complaints Policy and to all relevant points of her complaint, caused her further distress and uncertainty. She also had time and trouble to get the Council to respond to her complaint and had to seek the Ombudsman’s support to get this.

Service improvements

59. I have not made any service improvement recommendations on this complaint. This is because we have found the Council at fault on several other complaints relating to similar matters within the same time period. The Council accepted our recommendations and have since shared its action plans, completed staff reminders, and training to ensure it meets its duties, reduces backlogs, and responds to requests from parents. Any recommendations I would have made has therefore already been addressed.

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Agreed action

60. To remedy the injustice the Council caused to Mrs K and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs K for the delays in the Education, Health, and Care plan process, its failure to ensure X received enough alternative provision to amount to the equivalent of a full-time education, and its poor complaints handling and responses to some communication;

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.

2. pay Mrs K a symbolic payment of £500 to acknowledge the distress, time & trouble, and delay to exercise her appeal rights she experienced as a result of the Council’s faults;
3. pay Mrs K a further symbolic payment of £1,050, to use as she sees fit for X’s benefit, to acknowledge the loss of some alternative provision he should have received between September 2023 to November 2023.

In total the Council should pay Mrs K £1,550.

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

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Final decision

62. There was fault which caused Mrs K and X an injustice. The Council have agreed with my recommendations, it is on this basis 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