Summary: Mr X complained the Council delayed reviewing his son, Y’s, Education, Health and Care (EHC) Plan, and failed to provide an appropriate education since it decided he needed a special school placement in summer 2023. Mr X also complained the Council did not provide the special educational provision specified in Y’s EHC Plan. The Council was at fault. It will make a payment to Mr X to recognise the loss of educational provision to Y and the distress caused to himself. The Council will also review how it ensures provision is in place for children with EHC Plans where there is no suitable school place identified.

The complaint

1. Mr X complained the Council delayed reviewing his son, Y’s, Education, Health and Care (EHC) Plan, and failed to provide an appropriate education since it decided he needed a special school placement in summer 2023. Mr X also complained the Council did not provide the special educational provision specified in Y’s EHC Plan. Mr X said Y missed education and the opportunities to develop his social skills. Mr X says this impacted the whole family including his, and his wife’s careers and ability to work. Mr X wants the Council to provide an appropriate school placement for Y.

Back to top

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. 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)
4. 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.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I read the documents Mr X provided and discussed the complaint with him on the phone.
8. I considered the documents the Council sent in response to my enquiries.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant legislation and guidance

Education, Health and Care Plan

10. 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. 
11. 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. 

Reviewing the Plan

12. 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.
13. 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) 
14. 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.
15. 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 and the Council should go on to issue the final amended EHC Plan within a further eight weeks.
16. 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.

Appeal rights

17. 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.
18. 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, and an amendment to these elements of an EHC Plan;

Special educational provision

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. 

What happened

21. Y is a primary school aged child who lives at home with his parents and sibling. At the time of these events Y had an EHC Plan. It set out that Y had complex learning, communication, interaction, sensory and social needs which impacted his speech and language, attention, social communication and sensory processing skills.
22. The EHC Plan set out the additional support Y needed to engage with his education. This included full time one-to-one support from a teaching assistant to support his learning, and social and emotional needs. The Plan stated Y needed quality first teaching in the classroom and small group targeted interventions with an appropriate workspace in the classroom that did not exclude him from the rest of the class. The Plan said Y should attend a mainstream primary school and named School A (the school).
23. In the summer of 2023 Mr X raised his concerns about Y’s education and EHC Plan as Y had been put on a part-time timetable and was often being sent home from school due to being very upset and his behaviour deteriorating.
24. The school held and emergency annual review meeting of Y’s Plan on 20 July 2023. The meeting was attended by the school, Mr X, the Council SEN officer and its behaviour support team. The record of the meeting showed changes were needed to sections B, F and I of Y’s Plan. It said Y was not integrated into the class, had not made any progress and despite implementing many strategies recommended by professionals Y was not able to access any of the curriculum. It said Y had been on a part-time timetable for a term. It said Y should attend school for three and a half hours every morning but the school had to ask Mr X to collect him early most days as Y was so upset.
25. Everyone at the meeting agreed the school was no longer suitable and Y urgently needed a specialist provision. It said that being in an unsuitable setting was having a highly detrimental impact on Y’s mental health, wellbeing and education. The school sent the record of the review meeting to the Council at the beginning of August.
26. The Council discussed Y’s case at a panel meeting at the beginning of August and decided it needed a report from its autism team about the support Y required.
27. The autism team visited Y at school and provided a report on 10 October 2023. It said Y needed a higher level of support than expected in a mainstream classroom and set out the specific individualised support he required.
28. The Council considered Y’s case again at the end of October and decided that Y required a specialist setting to meet his needs.
29. The Council began consulting for specialist school placements in January 2024. It consulted five schools. By the end of the month all the schools had said they could not offer Y a place. The Council consulted another school in March, another in April and several more in July 2024.

Complaint

30. Mr X complained to the Council in April. He said the Council was failing Y. He said it had not provided the correct setting for Y to attend and he was still on a part-time timetable. He said he was a danger to himself and others while in the wrong setting. He asked the Council to provide an appropriate school setting.
31. The Council responded to Mr X, upheld his complaint and apologised for the time it was taking to identify a specialist school for Y since it decided he needed one in October 2023. It provided a list of 13 schools it had consulted for Y and said 10 could not offer Y a place and 3 had not yet responded. It said it was taking all necessary steps to find a placement and would hold an interim review of Y’s EHC Plan.
32. Mr X asked the Council to consider his complaint further. He said the meeting in July 2023 was an interim review of the Plan as no provision was being offered and no progress had been made, and he was unaware the Council had consulted with any schools.
33. The Council told Mr X it would not consider his complaint further, as it had upheld the complaint and outlined the steps it was taking to find an appropriate placement. It said further consideration of the complaint would not result in a different outcome.
34. Dissatisfied with the Council’s response Mr X complained to us.

Issuing the EHC Plan

35. The Council issued a draft amended EHC Plan for Mr X’s comments in May 2024. The Council told the school it was considering any alternative provisions for Y that might be suitable in the interim.
36. On 1 August 2024 the Council issued an amended Final EHC Plan for Y. It reflected the support he needed which included the autism specialists recommendations, and said he should attend a specialist setting. It did not name a school Y should attend.

Further information

37. In response to my enquiries the Council said it held no correspondence with the school about the provision Y was receiving between June 2023 and August 2024.
38. It said it did not have any evidence of how it kept Y’s part-time timetable under review to ensure it met his needs, or how it considered if the provision set out in Y’s EHC Plan was in place for him.

My findings

39. The Council issued an EHC Plan for Y in August 2024. It specified Y should attend a specialist school but did not name a placement in section I. Mr X had a right of appeal against the content of that Plan, including section I, to the SEND tribunal and it was appropriate for him to use it. I have not investigated events after August 2024.

Education, Health and Care Plan review

40. The school held an emergency annual review meeting on 20 July 2023, which the Council attended. In line with the guidance the Council should have gone on to issue its decision to amend the EHC Plan within four weeks with the proposed amendments, and an amended final Plan within a further eight weeks and by 12 October 2023. The Council did not issue an amended final EHC Plan until 1 August 2024 which was a delay of 42 weeks and is fault.
41. We made recommendations to the Council to consider its failure to adhere to the statutory timelines at a scrutiny committee in another investigation (23008082). The scrutiny committee is due to consider that matter in November 2024. I have therefore not made a further service improvement recommendation on that point in this investigation.

Educational placement and specialist educational provision

42. The record of the annual meeting in July 2023 stated the professionals, including the Council officer, and Mr X agreed Y required a specialist placement. The Council considered the matter at a panel meeting in August, and again in October 2023 after it received additional information on Y’s needs before it officially confirmed a specialist placement was needed. The delay in making a decision for three months was fault.
43. The Council did not begin consulting for a specialist school until January 2024 which was five months after everyone agreed Y needed a specialist placement. After negative responses the Council did not consult another school for a further two months. The delay in both the initial and follow up consultations to schools was fault.
44. The records show Y had an EHC Plan that set out the support he needed to be able to access the education available to him. The Council was aware in July 2023 that Y was only attending school for a couple of hours each morning and was often sent home early as the school could not meet his needs. The Council has provided no evidence of how it considered if the provision set out for Y was in place, if he was able to access it, or if a part-time timetable was in his best interests. The Council told the school it was considering interim provision; however I have seen no evidence of this and none has been offered to Mr X. The Council’s failure to maintain proper oversight of how it was fulfilling its legal duty (Section 42, Children and Families Act) to make sure Y received the provision in his Plan was fault. On the balance of probabilities, Y did not receive most of the provision in his Plan between July 2023 and August 2024.

Injustice

45. The faults set out in the paragraphs above meant Y was without an up-to-date EHC Plan that set out the support he required for seven and a half months between October 2023 when the amended final Plan should have been issued and August 2024. This also delayed Mr X’s appeal right to the tribunal if he disagreed with the content of the EHC Plan.
46. The Council’s failure to provide an appropriate placement, failure to consider if the provision was in place for Y or met his needs meant Y missed a significant amount of education and specialist educational provision for three terms between July 2023 and August 2024. Y did not make any academic progress and his emotional wellbeing was detrimentally affected. This also caused Mr X frustration and distress.

Back to top

Agreed action

47. Within one month of this decision the Council will:
• Write to Mr X and apologise for the frustration and distress caused to him by the Council’s faults and pay him a symbolic amount of £500 to recognise the same. 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.
• Pay Mr X £6,000 for the specialist provision Y missed over three terms. Mr X should use this for Y’s benefit as he sees fit.
48. Within three months of this decision the Council will:
• review its processes and ensure it has clear procedures in place for how it carries out oversight of children with EHC Plans who are not attending named placements to ensure it meets its Section 42 duty and the action it should take when the provision is not in place; and
• provide training for all relevant officers on the Council’s duty under Section 42 of the Children and Families Act.
49. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy the injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman