Summary: Mrs X complained about how the Council handled her child, Z’s education and special educational provision between 2019 and 2024. The Council was at fault for failing to ensure Z received all the provision in their Education, Health and Care Plan between March and June 2023 and delayed in considering Mrs X’s complaint. The Council will apologise to Mrs X and Z for the avoidable frustration, uncertainty and distress they were caused and make a symbolic payment of £800 to recognise the same.

The complaint

1. Mrs X complained about how the Council provided education and an Education, Health and Care Plan for her child Z since 2019.
2. Mrs X complained;
1. the Council delayed in completing an Education, Health and Care needs assessment in 2019;
2. about the actions of a school, including key staff members, in relation to the needs assessment;
3. the Council failed to provide appropriate education for Z from December 2020;
4. the Council failed to provide a proper transition to a new school for Z in summer 2022;
5. the Council failed to review Z’s, Education, Health and Care (EHC) Plan in line with the legislation since December 2022;
6. the Council failed to provide the specialist provision in Z’s EHC Plan, or appropriate alternative provision between April 2022 and March 2024;
7. the Council did not share important confidential information about Z with their new school in summer 2023;
8. the Council did not complete a social care assessment it said it would in April 2023.
3. Mrs X said this caused Z and the family distress, frustration, impacted Z’s mental wellbeing and caused mistrust of the Council, and Z missed out on education and specialist provision. Mrs X wanted the Council to apologise and pay the family compensation.

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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. 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)
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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
10. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

11. 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.
12. 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)
13. 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 have and have not investigated

14. I have not investigated points a) to d) of Mrs X’s complaints. This is because we cannot investigate late complaints as set out in paragraph five. Mrs X has been aware of points a) to d) for more than 12 months. There are no good reasons to exercise discretion to investigate those matters now.
15. Point b) relates to the actions of a school and key school staff members. Even if this complaint were not late, I could not investigate this as we cannot investigate most complaints about what happens in schools or personnel issues as set out in paragraphs eight and nine.
16. I cannot investigate point c) even if this complaint was not late because Mrs X had appeal to the SEND Tribunal as set out in paragraph six. The suitability of Z’s education was inseparable from the matters Mrs X had appealed to the SEND Tribunal. The Council issued its decision not to complete an EHC needs assessment for Z in December 2020 and Mrs X appealed to the SEND Tribunal. The Tribunal issued a consent order in spring 2021 and subsequently the Council issued an EHC Plan for Z in April 2021. Mrs X appealed the content of that EHC Plan to the SEND Tribunal. The Tribunal issued its decision and the Council issued an amended final EHC Plan in May 2022. The period December 2020 until May 2022 was considered by a Tribunal. Z attended school during this time.
17. I have considered points e) to h) of Mrs X’s complaint between December 2022 and November 2023. Mrs X had been aware of the matters between April 2022 and March 2023 for more than 12 months before she complained to us in March 2024. I have exercised discretion to include the period from December 2022. This is because what happened between December 2022 and March 2023 is relevant to the investigation of future events and so there is a good reason to investigate those points now.

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How I considered this complaint

18. I read the documents Mrs X provided and discussed the complaint with her on the phone.
19. I considered the documents the Council provided in response to my enquiries.
20. I considered the relevant legislation and guidance, and our guidance on remedies which is available on our website.
21. Mrs X 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

Relevant legislation and guidance

Education, Health and Care Plans

22. 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. 
23. The EHC Plan is set out in sections which include: 

• Section B: 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 educational placement. 
• Section K: Copies of all the advice and information obtained as part of the EHC needs assessment and/or EHC Plan reviews.

24. 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.
25. 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) 
26. 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. The Council should issue the amended EHC Plan within a further eight weeks.

Appeal rights

27. There is a right of appeal to the SEND Tribunal against:

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

28. 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)
29. 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.

Special Educational Provision

30. 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)  
31. 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. 

What happened

32. This section sets out the relevant events. It is not intended to be a detailed chronology of everything that happened during the period.

Background information

33. Z lives at home with their parents, Mr and Mrs X and their sibling. Z has neuro-differences which means they have special educational needs (SEN). In September 2022 Z was due to transition to secondary school.
34. Mrs X states that Z experienced traumatic events in their past. In order to share this sensitive and confidential information with people involved with Z’s education Mrs X said the Council advised her to provide a document that would be included in section K of Z’s EHC Plan. Mrs X states she gave that document to the Council.
35. In May 2022 the Council issued an EHC Plan for Z which said they should attend a mainstream secondary school, School A, from September 2022. Section F of the Plan set out the special educational provision Z needed. It was largely about how school staff should develop relationships with, speak with and support Z in school and in lessons. It said Z would need a team of trusted staff members appropriately trained to understand their neuro-differences.
36. In section K of the EHC Plan it stated, ‘Parents’ appendix showing sensitive/historical information removed from this document’.
37. In the summer before Z started Mrs X asked School A to hold an annual review meeting by the end of the first term (December 2022). School A agreed to do so and contacted the Council to gather the documents it needed to complete the annual review.

Events subject to this investigation

38. Mrs X contacted the Council at the beginning of December 2022. Mrs X complained Z was not receiving the provision in their Plan as they were unable to attend School A. Mrs X complained the school staff had failed to build a trusting relationship with Z to meet their needs and failed to follow the EHC Plan. Mrs X said she had recently met with School A and it had made attempts to fix the issues but the support was not sufficiently personalised to meet Z’s needs.
39. An SEN case officer (Officer 1) arranged to meet with Mrs X, Z and School A to try and resolve the issues. Mrs X told the Council Z’s attendance was approximately 65%. In mid-December Mrs X told the Council she had met with School A and plans were in place to support Z to return in January. Mrs X said if the plan was ineffective then it would need to consider more specialist support of the special resourced unit (SRU). The SRU was a building on the grounds of School A established to meet the needs of children with autism who had an EHC Plan. To access the SRU a child or young person would have to have it named in section I of their EHC Plan.
40. Officer 1 attended a meeting at School A at the beginning of January 2023. The case records show Officer 1 believed it could meet Z’s needs as set out in their Plan. Officer 1 recorded they had asked Mrs X if she would like to change schools but Mrs X declined. They said School A was trying to meet the provision in the Plan but was struggling to do so. Officer 1 asked School A to hold an early annual review to consider the content of the Plan to make it clearer and deliverable.
41. School A started arranging the review meeting. Mrs X emailed the Council and said progress had been made and School A was starting to implement what she had requested. She said she was not sure an annual review was needed. The following day Mrs X stated the meeting was needed as Z had not gone in to school that day.
42. At the beginning of February School A arranged to hold the review meeting at the end of the month due to the availability of all involved. Mrs X was unable to attend at the last minute and so the meeting was rearranged for two weeks later.
43. In the interim Mrs X contacted the Council and said the provision in the EHC Plan was not working and she wanted to meet to agree the wording in the Plan and find new solutions. She said Z’s attendance had dropped to around 50%. Mrs X asked why Z could not attend the SRU at School A. Officer 1 replied and said it could consult the SRU to name on Z’s EHC Plan but entry was not guaranteed.
44. At the annual review meeting on 16 March 2023 School A reported Z was struggling to attend in the morning and it would develop a plan to support morning transitions. The meeting recorded temporary changes to Z’s timetable, that they were making progress and developing good relationships in school. There was discussion of alternative provision for two days a week that School A would explore. The meeting did not record what, if any, changes should be made to Z’s EHC Plan. School A recorded it did not feel they discussed the particulars of the Plan. The Council said it told Mrs X it did not consider this to be an annual review meeting.
45. The following week Mrs X asked the Council to consult School B for a place for Z as she felt the placement at School A was breaking down.
46. School A sent the Council the record of the annual review meeting on 27 March. The record did not indicate what changes were required. The Council said it considered the review incomplete and there had been a breakdown in the relationship between Mrs X and School A. School A asked the Council about alternative provision for Z as they had not been in school for three weeks. Officer 1 informed School A of the Council’s medical education service and SEN hub which may offer alternative provision and provided referral forms for School A to complete.
47. In April Officer 1 met with Mrs X to discuss the family’s needs. Mrs X states she understood this meeting to be a social care assessment. Officer 1 said it was a meeting to gather information so they could complete a referral to social care for an assessment. Mrs X said she told Officer 1 she did not want to be contacted by Officer 2, due to a previous matter.
48. The Council sent consults to School A, School B, School C and the SRU for a place for Z at the beginning of April.
49. Officer 2, from the Council’s Early Help team contacted Mrs X about support for the family. Mrs X told Officer 2 they did not want support from the Early Help team and did not respond to further contact.
50. The Council issued a draft amended EHC Plan for Z for Mrs X’s comments on 18 May 2023.
51. The Council went on to issue an amended Final EHC Plan for Z on 16 June 2023. It stated Z should attend School A until September 2023 when they should attend School B. Mrs X appealed against sections B and F to the SEND Tribunal. The Tribunal also heard that Mrs X and the Council had agreed Z needed an Education Other Than At School (EOTAS) package rather than a named school placement. The Tribunal issued its decision at the end of April 2024.
52. At the end of June 2023 Mrs X complained to the Council about how it handled Z’s education and placement. The Council responded and said there had been a lengthy delay in it responding to and resolving her complaint that she first raised in December 2022. The Council invited Mrs X to progress to stage two of the complaint process.
53. Mrs X agreed and in August she complained the Council:
• failed to consider her complaint and communicate properly with her;
• had not provided the provision in Z’s EHC Plan;
• delayed naming a new placement until September 2023 when it could have done it in April 2023; and
• had lost the confidential information about Z from section K which meant schools did not fully understand their needs.
54. Mrs X also complained that she understood the meeting she had with Officer 1 in April to be a social care assessment. She said she had since been told it was not an assessment and that would have been done by the Early Help team but it had been closed because she did not respond to its contact. Mrs X requested an immediate social care assessment.
55. The Council completed a social care assessment for Mrs X’s family in September. It concluded there were no concerns for Z’s safety in the care of their parents and there was no role for social services. It recorded Mrs X had requested a carer’s assessment which it would complete.
56. The Council responded to Mrs X’s complaint at the end of November. It told Mrs X:
• It acted to address the concerns around the provision School A was providing for Z. It said although it was not successful, it was not at fault.
• The provision Z received in the spring and summer term of 2023 was insufficient and it had not taken enough action ensure it was suitable.
• Its communication with Mrs X had been poor and there had been no clear point of contact for Mrs X.
• It could not locate the confidential information from section K.
• It had delayed in completing the annual review and issuing the amended EHC Plan.
• It apologised for any miscommunication about whether the meeting with Officer 1 in March was a social care assessment or referral, and Officer 1 considered he was clear he could only complete a referral.
• It had failed to respond to Mrs X’s complaints at stage one, twice. And did not progress the complaint to stage two until Mrs X asked a third time.
57. The Council said as a result of Mrs X’s complaint it would improve its service by identifying a named case worker and responding to stage one complaints in time and it implement a better system for managing and tracking complaints in July 2023. It said it would apologise to Mrs X and Z for the faults it identified.
58. The Council wrote to Mrs X again in December 2023. It apologised:
• For the poor communication and the distress and uncertainty that caused.
• That it could not locate section K of Z’s EHC Plan. It said it should have carefully protected the document to assist Z’s education journey.
• About the delay in the complaint process and its failure to progress Mrs X’s complaint when she asked it to.
59. In response to my enquiries the Council said in March 2023 School A had produced a transition plan to support Z to reintegrate in to school. It said following that the school arranged alternative provision at two providers and worked to support Z back in to school. It also sent work for Z to complete at home. The Council’s records are not clear on what provision Z had and when. It said Z was on roll at School A who was responsible for providing their education.

My findings

60. I have investigated what happened with Z’s EHC Plan and SEN provision from December 2022. In June 2023 the Council issued an amended final EHC Plan for Z. Mrs X used her appeal right to the SEND Tribunal against sections B and F of the Plan. The tribunal also considered section I of the Plan. Because Mrs X used her appeal right, I cannot consider what happened with Z’s EHC Plan, provision or named placement after June 2023 for the reasons set out in paragraphs 6, 28 and 29.
61. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Annual review

62. Z’s EHC Plan was due to be reviewed in May 2023. Mrs X agreed with School A to hold an annual review meeting in December 2022. The Council was not involved in that arrangement. When the Council became aware there were problems with Z’s attendance it recommended School A hold an annual review meeting to discuss the Plan and provision. There was no fault in the Council’s action.
63. School A arranged a meeting, taking in to account everyone’s availability, that occurred on 16 March. School A provided its record of the annual review to the Council within two weeks. The Council suggests that it did not consider it an annual review meeting as the Plan had not been properly discussed and considered. Nevertheless, Mrs X understood it to be an annual review meeting and there are no contemporaneous records made at the time that suggest it was not. On the balance of probabilities, the meeting was an annual review meeting.
64. Working on the basis the meeting was an annual review meeting, the Council should have told Mrs X of its decision to cease, amended or maintain Z’s EHC Plan by 13 April 2023, and provided a draft Plan for her comments. The Council did issue its decision to amend the Plan and a draft for comments, but not until 18 May 2023. That was a delay of five weeks and was fault. The delay caused Mrs X frustration.
65. In line with the original timescales the Council should have gone on to issue the amended final EHC Plan by 8 June 2023. The Council issued the final EHC Plan for Z on 16 June 2023. That was week over the timescales set out by the case law. However, I do not find that fault caused a further injustice.

Specialist provision

66. The Council has a non-delegable duty to provide the provision in a young person’s EHC Plan. When the Council was aware there was an issue with Z’s placement at School A in December 2022 it initially worked with Mrs X and School A to understand the issue. It recorded School A was working to reintegrate Z and Mrs X reported progress was being made. There was no fault in the Council allowing School A to try and support Z’s reengagement.
67. From March 2023 the Council knew Z was not attending School A, and School A had asked it about alternative provision for Z. The Council should have considered if the section 42 provision was available to Z, and if not it should have taken an active role in ensuring the provision was secured for Z. The Council concentrated on identifying a new placement for Z and did not keep sufficient oversight of the provision between March and June 2023, which was fault. The fault leaves uncertainty for Mrs X and Z about what the Council would have done if it had considered it properly at the time.
68. The Council has stated the provision available to Z was insufficient but has not specified or explained why. I cannot say, even on a balance of probabilities, what action the Council would have taken had it acted without fault. This is because it may have:
• decided School A was providing the section 42 provision itself;
• decided the alternative provision School A arranged was providing the section 42 provision; and/or
• decided that providing additional interim alternative provision with new people was not in Z’s best interest given their need to develop trusting relationships, and the Council’s ongoing action to consult new placements.

Sharing information

69. Mrs X complained the Council had failed to share the confidential information about Z’s history with their new school. The records show the Council removed the confidential information from section K of Z’s EHC Plan in 2022. The Council has apologised it did not keep the information. Mrs X states the lack of the confidential information affected Z’s transition to a new school after June 2023. For the reasons set out in paragraph 60 I cannot investigate that matter further.

Social care assessment

70. Mrs X said Officer 1 told her they were going to do a social care assessment in April 2023, but did not complete an assessment. Officer 1 said they were gathering information to complete a referral to children’s social care. This is a matter of recollection of a conversation. I cannot establish what was said or how it was described. The Council has already apologised for any misunderstanding which is an appropriate remedy. Further investigation on that point will not lead to a different outcome. In addition when the Council completed the social care assessment it did not identify any support needs, and so there was no significant personal injustice that would warrant further investigation.

Communication and complaint handling

71. The Council has accepted its communication with Mrs X was poor. Further investigation on that point would not lead to a different outcome.
72. The Council took 11 months to provide a substantive response to Mrs X’s complaint of December 2022, which was fault.
73. The Council has apologised for the distress and uncertainty its poor communication and complaint handling caused to Mrs X, however this is an insufficient remedy for the frustration and distress caused. I have recommended a further remedy below.
74. The Council identified it should apologise to Z for the impact on them of the complaints it upheld. The Council apologised to Mrs X but did not include Z in that apology. That was fault and caused Mrs X frustration as she believed Z would receive an apology.

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Agreed action

75. Within one month of this decision the Council will:
• Write to Mrs X and apologise for the avoidable frustration, uncertainty and distress she was caused by the Council’s faults and pay her a symbolic amount of £500 to recognise the same;
• Write to Z and apologise for the uncertainty caused to them about the suitability of the special educational provision they received for three months between March and June 2023. The Council will send the letter to Mrs X to share with Z as she sees fit; and
• Pay Mrs X a symbolic amount of £300 to recognise the avoidable uncertainty caused to Z. Mrs X should use this money for Z’s benefit as she sees fit.
76. 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 I have recommended.
77. The Council will provide us with evidence it has complied with the above actions.

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Final decision

78. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman