Summary: Mrs E and Mr E complained that the Council failed, over several years, to provide Mr E with suitable education, based on the contents of his Education, Health and Care Plan. We uphold the complaint because of delay in reviewing Mr E’s Plan, a delayed complaint response and incorrect information about an education provider. These faults will have caused Mr E some distress, including uncertainty. The Council has agreed to apologise and provide Mr E with a symbolic remedy in recognition of the faults we have identified.

The complaint

1. Mrs E complains on behalf of her son, Mr E. They complain:
• the Council failed to provide Mr E with suitable education (adapted to his needs) for four years;
• the Council failed to follow up on action plans, including a plan to enable Mr E to access education;
• the Council’s complaint responses dismissed their concerns.
2. Mrs E says Mr E’s trust in the education system has broken down. He has been set back and his mental health has been affected through missed education. They have been put through the time and trouble of complaining and contacting their MP.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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

9. Mrs E and Mr E complain about events going back around four years from when they complained to us.
10. Unless there are good reasons, the Local Government Act says we should not consider events over 12 months before someone complains to the Ombudsman. So I need to consider if I should investigate matters from before April 2023, that is 12 months before Mrs E complained to us on Mr E’s behalf.
11. The Council considered a complaint from Mrs E, on Mr E’s behalf, and provided its response in June 2023. That complaint looked at events back to 2021. It accepted some failings. Mrs E has explained that during that period there were multiple issues she had to deal with for her son. She was also hospitalised, after a life-threatening illness.
12. In November 2023 the Council found an IT tutor. Mrs E asked why the Council had not found a provider earlier. The Council’s officer could not provide a satisfactory response.
13. So in November 2023 Mrs E and Mr E were provided with new information that cast fresh light on the events of the previous years. And Mrs E complained to us, on Mr E’s behalf, within 12 months of that new information. Given this chronology, I believe there are sufficient grounds for me to investigate back to events from the Council’s March 2022 review of Mr E’s Education, Health and Care (EHC) Plan.
14. However, I have only considered the Council’s 2023 complaint response (and not the responses to earlier complaints), as that is the most recent response, which deals with the issues under complaint.
15. The Ombudsman cannot look at the contents of EHC Plans, as there is an alternative remedy to challenge these (see paragraphs 5 and 6). And, even if there were good reasons why Mr E did not challenge earlier EHC Plans, we are not an appeal body. We do not have the professional knowledge to make decisions about the educational provision in Plans. But we can look at delay in finalising a Plan and delays and issues in providing the contents of a Plan.

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How I considered this complaint

16. I considered evidence provided by Mrs E, Mr E and the Council as well as relevant law, policy and guidance.
17. Mrs E, Mr E and the Council had an opportunity to comment on this and an earlier draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

18. A child or young person with special educational needs may have an 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.
19. 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)
20. 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

21. 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:
• 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place.
• Where the council proposes to amend an EHC Plan, 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)
• The council must make its decision within four weeks of the date of the review meeting. And councils must issue the final amended EHC Plan within a further eight weeks.

What happened

Background

22. Mr E is a young adult who has a range of disabilities that lead him to having special educational needs (SEN). He has had an EHC Plan (and its predecessor) since primary school. He has been home educated for many years. Mr E lives with Mrs E, who is his main carer. Mr E has received mentoring support for some time from a mentoring organisation (Organisation 1). The Council’s Adult Social Care team has historically funded this mentoring support. A complaint about that team is the subject of a separate decision by the Ombudsman.
23. At a July 2021 meeting to review Mr E’s EHC Plan, the college Mr E had attended indicated it was unable to meet Mr E’s needs. On 8 September 2021, the Council’s Special Educational Needs and Disabilities (SEND) Team finalised a revised EHC Plan for Mr E. The Plan noted Mr E would like more confidence with information technology (IT) and to be able to use it in the future. In an education plan issued as a result of the EHC Plan, the Council agreed for Mr E to access an online IT course, with support from Organisation 1’s mentors. The Council’s SEND Team funded this part of Organisation 1’s work with Mr E. The EHC Plan said it needed reviewing in six months.

Mr E’s EHC Plan review

24. In March 2022 the Council held a meeting to review Mr E’s EHC Plan. The record of the meeting says Mrs E complained about Mr E’s lack of education and the EHC assessment process. The Council says, after this meeting, it increased the hours of educational support it funded Organisation 1 to provide to Mr E. It did not issue a revised EHC Plan after the meeting. But this meeting was not an annual review, so that was not fault, when compared to the statutory timescales.
25. In August the Council emailed Mr E about work it was doing to find him an IT course, approaching local centres.
26. Mr E’s EHC Plan was due for an annual review by September 2022. The Council did not hold a review meeting, but in October it did request an educational psychology report. In November Mrs E requested a review. The Council chaired a meeting in mid-November. The record of the meeting noted Organisation 1 continued to support Mr E with an IT course, although a mentor was unreliable.
27. The Council issued a draft EHC Plan in December 2022, with further drafts in January (after a further meeting) and March 2023. The need for an IT course and support was in the drafts. Mrs E asked for extra time for Mr E to respond to the March draft, so he could access support to provide a response.

Mrs E’s complaint

28. In February 2023 Mrs E complained. The Council provided its first response in May. It apologised for the delay. It provided its response at the second stage of its complaint procedure at the end of June. This response noted:
• it had not provided “effective services” for Mr E, despite “everyone’s best efforts”;
• there were issues with a lack of monitoring of Mr E’s progress; exacerbated by Covid-19 and difficulties in communications with the family;
• the Council had agreed to support Mr E in his IT interests by arranging support via a named tutoring agency. After a long wait the family contacted the agency. It advised it did not offer IT courses and had no IT teaching staff;
• the Council needed to learn from the complaint and better monitor progress for children who were not in school;
• many young people with Mr E’s diagnosis displayed strengths and interest in IT work. So its SEND service should develop more awareness and specific commissioning of that kind of provision;
• it apologised for the length of time its investigation took.
29. Following the complaint response the Council drew up an action plan, including a “reset meeting”. And it agreed extra financial support for parts of Mr E’s EHC Plan. This included extra hours for Mr E to complete an IT course. It also provided him with a laptop.
30. In mid-July at a meeting Mrs E expressed frustration that the Council had not found a specific IT course they had requested several years before;
31. At a later meeting Organisation 1 advised:

• it was difficult for it to cover both the (ASC funded) mentoring and the educational element of Mr E’s package;
• its support had been inconsistent due to staffing issues;
• its view was that it might be beneficial to bring in another service to work alongside Organisation 1, to separate education from mentoring;
• it had sent details to the Council of the IT course Mr E was completing; to aid the Council’s search for an alternative provider.

32. The Council finalised Mr E’s EHC Plan at the end of August. The Plan noted Mr E needed the following support in relation to IT:
• ongoing mentoring, including “educational support with his preferred online course”;
• “[X] will be supported to complete a course in IT”.
33. In October 2023 Mr E’s relationship with Organisation 1 broke down, due to Mr E’s unhappiness, following changes in staff. The Council’s view was the mentoring service had been useful in providing some education skills to Mr E when he was younger. But he by then needed “…some higher/more specific skills training”.
34. At the end of October the Council found an IT tutor, who it contacted. The tutor said he could meet Mr E’s specific needs.
35. In November Mr E and Mrs E had a meeting with Council officers. Mrs E asked why it had taken the Council so long to find the tutor. The Council’s officer responded to advise she was not sure. She noted the Council had found the tutor through contact with a different (non-Council) team. In response to my draft decision, the Council advised its SEND Team did not usually work with the other time in finding support for EHC Plan learners. The reason it had not earlier found the tutor might be that the tutor had not earlier advertised himself as available.
36. Later in November, the Council arranged for the tutor to visit Mr E. Unfortunately, the tutor had to cancel as he was unwell.
37. At a January 2024 meeting, Mr E asked to meet the IT tutor for an initial meeting, although he might not start the course at that time. Later Council records note Mr E was “…working through various things during therapy sessions and not in a position to access education”.
38. The records of Mr E’s March 2025 EHC Plan review meeting noted he had indicated he would like to access some IT courses.
39. In April 2024 Mrs E complained to the Ombudsman.

40. In response to a draft decision for this complaint:
• the Council noted that, until October 2023, it had funded Organisation 1 to provide Mr E with support to access an IT course;
• the Council noted while Mr E was completing one IT course, it was searching for others for him to access for progression;
• Mr E said he had not been accessing an IT course during that period. He had had some support, for a few weeks, from Organisation 1 with some IT skills but nothing else. The Council had suggested a publicly available course, but nothing else. He expressed disbelief that the Council had funded the extra educational support.

Analysis

41. We expect councils to follow the statutory timescales set out in the law and the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
42. The Council had finalised Mr E’s previous EHC Plan on 8 September 2021. That meant it should have held a review meeting by 11 August 2022. It should have issued a decision on the review by 8 September and a final EHC Plan by 3 November 2022.
43. The Council did not hold a review meeting until 14 November 2022, and then only on Mrs E’s request. It issued a first draft EHC Plan on 8 December 2022, but did not issue a final EHC Plan until 29 August 2023, a delay of over nine months. I understand there were reasons outside the Council’s control, at least for part of this period, why the Plan was delayed. But the delay was not in line with the Code and was fault.
44. The Council’s response to Mr E’s and Mrs E’s complaint was delayed, which was fault.
45. Mr E complains about the lack of progress with finding, and support to complete, an IT course.
46. The Council’s complaint response found it had given Mr E information about a possible source of new IT support, and that Mr E was waiting for an update about this. But when Mrs E contacted it, the provider advised it did not provide IT support. The Council upheld this part of the complaint and I agree.
47. Mr E’s view is he should have had access to different IT courses and a specialist tutor. But looking at the contents of the then most recent Plan for the time this complaint considers (see paragraph 23) the Plan did not specify the type of IT course, or a need for a specialist tutor. So I cannot say the Council should have provided Mr E with access to a different course.
48. And the Council increased Organisation 1’s funding to support Mr E. My decision is that, on the balance of probabilities, contrary to Mr E’s belief, the Council did fund Organisation 1 to provide the educational support and that then was suitable when compared to the provision in his EHC Plan.
49. Mr E says that funding did not translate into Organisation 1 providing the support he needed for the IT course. I can only find the Council at fault with this part of the complaint if there is evidence it was aware of issues it should have acted to resolve. I accept there were some issues with one of Mr E’s mentors. But more likely than not, it was only with the July 2023 meetings that there was enough concerns about the appropriateness of Organisation 1’s support that meant the Council should have acted to address this.
50. The delay after that in finding alternative support is part of the wider injustice in the Council’s delay in finalising Mr E’s EHC Plan. This delay creates some uncertainty about whether the Council might earlier have sought to change Mr E’s support for his IT course. The incorrect information the Council gave Mr E about sourcing a new tutor also creates some distress for Mr E, as does the delayed complaint responses.
51. Those July meetings were following the Council’s complaint response and its resulting action plan. So I do not uphold the complaint about the Council not following up on that action plan.
52. The Council found an IT tutor, after Mr E’s relationship with Organisation 1 broke down. But Mr E then advised he had other issues he needed to address before accessing courses. So I see no fault in the Council’s actions in that period.

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Agreed action

53. I recommended that, within one month of my final decision, the Council take the following actions.
• Apologise to Mr E for the faults I have identified. 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.
• Provide Mr E with a symbolic remedy of £400 for the distress and uncertainty the fault will have led to.
54. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman