Summary: Mrs X complained the Council failed to ensure her child, Y, received the provision in their Education, Health and Care Plan and delayed issuing an amended Plan following an annual review in March 2023. The Council delayed issuing the amended Plan following Y’s annual review, and failed to ensure Y’s school was delivering the provision in the Plan once it was issued. The Council also delayed in responding to Mrs X’s complaint. The Council should apologise, make a payment to Mrs X and review its processes.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y, received the provision in their Education, Health and Care (EHC) Plan and delayed issuing an amended Plan following an annual review in March 2023. Mrs X says this has caused her and Y distress, and Y has missed out on the provision in their plan. She wants the Council to ensure Y receives the provision going forward and compensate her for the lost provision.

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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. 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)
4. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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.
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)
7. 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

8. Part of Mrs X’s complaint is late because it concerns Council actions that happened more than 12 months before she complained to us. I have not investigated events before March 2023.
9. While Mrs X first complained to the Council in 2022, she did not then complain to us when she remained unhappy with the Council’s response. It was open to Mrs X to complain to us sooner and I consider it was reasonable for her to have done so. There is no good reason to investigate that matter now.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The law

Education, Health and Care (EHC) Plans

12. 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. 
13. 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)  
14. 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. 

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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. 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 also happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
17. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

The Council’s complaint process

18. The Council has a two-stage complaint process. It aims to respond to complaints at stage one within 10 working days. If this is not possible, the Council will contact the complainant with an updated timescale. If a person remains unhappy, they have 20 working days to ask the Council to consider their complaint at stage two.
19. The Council will only review complaints at stage two if a person can show the Council failed to consider relevant information, fully respond to the complaint or follow its complaint process at stage one. The Council will decide whether to accept a stage two complaint within 10 working days and usually respond within 30 working days. If the Council needs more time to respond it will contact the complainant with an updated stage two timescale.

Background before March 2023

20. Mrs X’s child, Y, has an Education, Health and Care (EHC) Plan. Before March 2023 Mrs X raised several concerns with Y’s school and the Council about the school’s delivery of Y’s Plan. The school maintained it was delivering the provision in Y’s Plan and completed a provision review for the Council. The review set out how the school was delivering section F of Y’s EHC Plan. Both the Council and school noted that some provision was outdated, and they needed to review Y’s Plan.

What happened

21. Y’s school carried out an annual review of Y’s Plan in March 2023. As part of the review, it asked for an educational psychology assessment of Y to gain an up-to-date understanding of Y’s needs. The review paperwork contained updates from Y’s teachers on their progress. At the review the Council said Y’s placement remained suitable but proposed amendments to some provision in Y’s Plan. It decided these changes did not require Y to be re-assessed. Mrs X said the Plan was not specific or targeted.
22. While the Council completed Y’s amended Plan, Y’s 2022 EHC Plan remained in place. Mrs X said Y’s school was not delivering the Plan. Mrs X chased the outcome of the annual review in June 2023. On 30 June 2023 the Council issued a notice to amend Y’s Plan with a draft Plan outlining the proposed changes. Mrs X disagreed with the amendments.
23. In July 2023 the Council attended a meeting with Y’s school. The Council followed up the meeting with an email outlining what they had discussed. They said Mrs X and Y may not be fully aware of the reasons behind the support the school was offering Y, and how this related to Y’s EHC Plan. It suggested the school prepare a breakdown of its interventions with Y and which part of Y’s EHC Plan they related to.
24. The Council also suggested Y’s learning was impacted by factors such as their heath needs, sleep pattern and low attendance of 25% at times. It said Y’s school should explore Y’s health needs and offer remote learning if needed. The Council told the school that Y would transfer to a preparation for adulthood team in September 2023 and their allocated worker would change.
25. Y’s allocated worker at the Council changed in September 2023. At the same time the school reviewed Y’s individual education plan (IEP). The Council had still not completed Y’s Plan following the March annual review, so Y’s 2022 EHC Plan remained in place. The IEP set out the school’s approach to Y’s learning. This included:
• Adapting activities for Y’s engagement, including breaking tasks down into smaller stages.
• Use of modelled examples for Y to refer to.
• Allowing additional time where needed.
• Use of visual aids where possible.
• Checking Y’s understanding, with support to talk through and understand tasks.
26. A specialist teacher carried out a learning and behaviour report for Y in September 2023. At the same time an occupational therapist assessed Y and recommended added strategies for Y’s school.
27. In October 2023 the Council held another review of Y’s Plan. School emails before the review show teacher’s asking for a copy of Y’s EHC Plan, being reminded of the provision in the Plan and commenting on Y’s difficulty keeping notes and taking in information. The review said Y needed a change of setting as they would be transferring to the next phase of their education. The review did not say Y needed to be re-assessed. Mrs X said Y was still not receiving the provision in their Plan as the school was not tackling Y’s obstacles to learning.
28. In November 2023 Mrs X sent the Council a copy of Y’s IEP, highlighting areas where Y was not receiving the provision in their EHC Plan and discussed at recent reviews. She asked the Council for the outcome of Y’s most recent review and highlighted areas where Y was not receiving their SEN provision.
29. Mrs X continued to contact the school and Council about Y’s provision. In January 2024 the school suggested a meeting to discuss the provision with Mrs X. At the same time the Council issued another notice to amend Y’s Plan and enclosed a draft EHC Plan. It gave Mrs X 15 days to comment on the Plan. Mrs X complained to the Council. She said Y was not receiving the provision in their EHC Plan and the Council had delayed in completing Y’s annual reviews.
30. Over the next two months the Council considered Mrs X’s comments on the draft Plan and met with Mrs X to discuss its proposed amendments. Mrs X continued to disagree with the draft Plan. The Council issued a final amended EHC Plan on 8 April 2024.
31. The Council responded to Mrs X’s complaint on 3 June 2024. It said it was only able to address issues within the last year. It said it had amended Y’s Plan to reflect the input of the educational psychologists and worked with Y’s school to ensure the Plan’s delivery. On 21 June 2024 the Council issued a further new final EHC Plan. Y’s provision remained the same, but the new Plan named a new college from September 2024.
32. In July 2024 Mrs X continued to complain to the Council. The Council responded at stage two of its complaint process on 29 July 2024. It said it was satisfied the Council had responded adequately at stage one, but Mrs X had provided new information which the Council had not considered at stage one. It recommended the Council review the added information and consider if it changed the stage one findings.
33. Y started at a new college in September 2024. At the same time the Council said it would consider the new information Mrs X had provided as a new stage one complaint.
34. In late September 2024 Y’s school responded to a complaint from Mrs X. At the complaint panel hearing the school outlined how it had delivered section F of Y’s EHC Plan. In particular:
• Review meetings with Mrs X and regular emails updating her on Y’s progress.
• Individual support during lunchtimes
• 1:1 support during targeted provision in English and Maths, as well as 1:1 time with a teach assistant.
• Small group support and a smaller class size.
• Careers advice.

The school also explained how Y would not always engage with the provision, with low attendance and lateness at times. It said it was satisfied it had made every effort to deliver the provision in Y’s EHC Plan and did not uphold Mrs X’s complaint.

35. The Council issued its new stage one response on 30 October 2024. It said a lot of Mrs X’s complaint was about events that were outside its complaint process. It apologised for the delay in completing Y’s March 2023 annual review but said it was satisfied Y had received the provision in their Plan. Mrs X complained to the Ombudsman.

My findings

Annual review

36. The Council carried out Y’s annual review in March 2023 but did not issue its notice to amend until June 2023. A delay of two months. This was fault. The Council decided the amendments did not require Y to be reassessed and so had another eight weeks to issue Y’s amended final Plan. It failed to issue a new EHC Plan until April 2024, following a new annual review where it again amended the plan but still said it did not need to re-assess Y. This was a further delay of eight months. The Council was at fault.
37. The delay of ten months caused Mrs X and Y uncertainty and frustration over what provision Y was entitled to and the school had to deliver. On balance, I cannot say Y missed out on the provision in the April 2024 EHC Plan from March 2023. This is because before issuing the April 2024 EHC Plan the Council carried out another annual review, and considered updated occupational therapy, educational psychology and speech and language reports. The April 2024 Plan reflected Y’s needs at the time it was issued and I cannot say the Plan would have been the same had the Council issued it without delay.

Y’s SEN provision

38. In the absence of an amended Plan the Council was under a duty to secure the SEN provision in Y’s 2022 EHC Plan between March 2023 and April 2024. While Y’s school was responsible for delivering the plan, we would expect the Council to check the provision was in place and investigate Mrs X’s concerns.
39. When Mrs X raised concerns over the school’s delivery of Y’s Plan the Council asked the school to carry out a provision review, which it did. Following the provision review the Council identified that it needed to review Y’s Plan and arranged Y’s annual review. Following the annual review the Council met with the school to discuss Y’s provision. It followed the meeting up with an email where it identified potential changes to the school’s delivery of Y’s plan. In September 2023 the school updated Y’s IEP to reflect its discussions with the Council. The Council then carried out another review in October 2023.
40. In response to Mrs X’s concerns, the Council carried out reviews, met with the school and considered new reports and assessments. The school’s provision review set out to the Council how it was delivering parts of Y’s EHC Plan, while the complaint panel notes from the school’s complaint response give further details of how it delivered Y’s EHC Plan. On balance, I am satisfied the school made every effort to deliver Y’s EHC Plan, and therefore the Council secured Y’s provision between March 2023 and April 2024. The Council was not at fault.
41. The Council issued a new EHC Plan for Y in April 2024. Given Mrs X’s concerns over the delivery of Y’s EHC Plan we would expect the Council to check the special educational provision from the amended Plan was in place. The Council did not do this, and Mrs X continued to raise concerns. In response to our enquiries, it said it assumed the school continued to deliver the provision in the Plan between April 2024 and July 2024. This was fault. Y’s school continued to deliver Y’s SEN provision during this time and any complaint about the delivery of the provision would be for Y’s school. However, the Council’s failure to check the school’s delivery of the arranged provision caused Mrs X and Y a period of uncertainty and frustration.

The Council’s complaint handling

42. Mrs X complained to the Council in January 2024. The Council did not respond until June 2024. This was fault. The delay caused Mrs X frustration and uncertainty over whether the Council had properly investigated her concerns, and time and trouble pursuing the delayed response.
43. The Council responded to Mrs X’s stage two complaint without delay. In its July 2024 stage two response it identified new issues to consider at stage one of a new complaint. The Council then didn’t respond to these until October 2024, a further delay of two months. This was fault and caused Mrs X added frustration, uncertainty and time and trouble pursuing the Council for its delayed response.

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Actions

44. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the failings identified in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X:
1. £500 to recognise the impact of the delay in issuing Y’s amended EHC Plan.
2. £200 to recognise the impact of failing to ensure the delivery of Y’s new EHC Plan between April 2024 to July 2024.
3. £300 to recognise the impact of the delay in responding to Mrs X’s complaint.
4. Review its processes to ensure it checks it has secured delivery of the provision in a new or amended EHC Plan.
45. The Council has already agreed to provide a report to the relevant committee in June 2025, explaining the action it is taking to address similar failings around its handling of annual reviews in complaint 23018941. The Council should also report on its actions and learning as a result of this complaint, to ensure it identifies and acts on the underlying causes behind the failings in both complaints.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman