Summary: Ms A complained to the Council that it was not dealing with her child’s special educational needs appropriately. She brought the matter to the ombudsman because the Council did not respond to her complaint. We found the Council is at fault. The Council has agreed to make payments in recognition of the injustice caused and carry out service improvements to avoid a repeat of what has happened.

The complaint

1. Ms A complained to the Council about the way it had handled her child’s special educational needs. She raised the following specific complaints in September 2023:

a. The Council has not provided the special educational provision agreed

b. The Council did not provide Learning Support Assistants (LSA)

c. The Council did not hold review meetings

d. The Council failed to review direct payments

e. The Council failed to respond to the complaints appropriately

2. The Council did not provide a full response to the complaints, so Ms A brought the issues to the Ombudsman. Ms A is seeking a resolution to the issues she raised with the Council.

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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. 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)
5. 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

6. Ms A has raised a previous complaint about the Council which looked at a period ending in June 2022. This investigation is focussed on matters which took place after this date and up to July 2024.
7. During the period I am looking at, there was an appeal to the SEN Tribunal. I have not investigated any issues which were considered by the Tribunal or which could have been. Please see paragraph 16, below.

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How I considered this complaint

8. I have considered information provided by the Council and Ms A, alongside the relevant law and guidance.
9. Ms A and the Council have provided comments and evidence on a draft decision before this final decision was made. I have considered their comments before making a final decision.

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What I found

Law and guidance

EHC Plans

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. In preparing an EHC Plan, the council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
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.
13. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
14. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
15. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment or reassessment, and of its 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 in their EHC Plan.
16. 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)
17. 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.
18. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
19. 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).

Section 19 duty

20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
21. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
22. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
23. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
25. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Section 42 duty

26. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
27. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Annual Reviews

28. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
29. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

SEN (personal budgets) Regulations 2014, regulation 11

30. The regulation states that the local authority must monitor the payment and use of direct payments by the recipient, at least once within the first three months of direct payments being made, and when carrying out a review or reassessment of the EHC plan.

The Complaints

The Council has not provided the special educational provision agreed.

31. Ms A’s child, X, has special educational needs, and has an EHC plan in place setting out his needs and the provision the Council will provide to meet those needs.
32. Amongst other things, the EHC plan in place at the time, set out that X would receive 15 hours of tuition each week, and weekly mentoring sessions.
33. It was agreed that this provision would be increased gradually until X could manage the full 15 hours. In September 2022, the Council agreed to increase the provision to 12 hours.
34. The Council contacted the tuition provider in July 2022 and asked it to increase from 9 hours to 12 for the Autumn term.
35. No further action was taken, and the increase did not take place.
36. Ms A appealed to the SEN Tribunal, and a new EHC plan was issued in December 2022. This EHC plan reiterated that X should receive 15 hours of tuition each week. Despite this, X received only 9 hours of tuition until September 2023.
37. The Council is at fault as it did not provide the provision it agreed to provide for the whole of the 2022/2023 academic year. The Council has caused an injustice to X as he has not had the provision he ought to have. He has also not had the opportunity to develop to the point of managing 15 hours per week sooner.
38. The Council has also caused an injustice to Ms A as she has been worried her son is not receiving the education he should for the whole year.

The Council did not provide Learning Support Assistants (LSA)

39. Following the Tribunal hearing in November 2022, the EHC plan of December 2022 included provision for 30 hours of LSA weekly to support X’s education.
40. Ms A had complained to the Tribunal that this had not been previously provided and had meant she was having to provide this support.
41. The Tribunal agreed this is a function the Council should provide, not the parents, and it was therefore included in the plan.
42. The Council failed to put a suitable LSA in place despite attempts to do so. From September 2023, the Council funded 25 hours of weekly LSA, but an LSA was not put in place.
43. The distress of having to try to support X’s learning has therefore remained with Ms A despite the Tribunal’s decision. Ms A says there have been time when tuition could not go ahead as she was unable to attend. X was also to receive peer support activities which could not go ahead as they require an LSA to attend. This is fault and the impact on both X and Ms A is an injustice.

The Council did not hold review meetings

44. In June 2022, Ms A requested that the Council review the EHC Plan which was in place at that time. The plan was dated February 2022.
45. The Council did not review the plan as an annual review was not due until February 2023. The Council also said it could not review the plan as Ms A had appealed the plan and was awaiting a Tribunal Hearing.
46. The Council was not obliged to carry out a review on Ms A’s request. However, if it had felt there was good reason to do so, the Council could have reviewed the plan on request.
47. The Council has accepted that its response to Ms A was incorrect in this regard. As the Council was not obliged to review the plan, and clearly considered the request and responded to Ms A, I have not found it to be at fault here.
48. The SEN Tribunal considered Ms A’s point that the Council had failed to review X’s provision.
49. Following the Tribunal, the Council issued a new EHC plan in December 2022. This plan said the Council would carry out meetings with all professionals working with X, and a lead point of contact every eight weeks. This was to ensure a comprehensive multi-disciplinary approach.
50. The Council did not carry out the first multi-disciplinary meeting which was due in March 2023. The meetings were held from May 2023. Between January and July 2024, the Council missed one of the review meetings although the others went ahead.
51. The Council is at fault as it did not carry out the meetings every eight weeks as required by the Tribunal. However, the meetings broadly took place as they should have, so the injustice here is limited to Ms A having to monitor the provision without any oversight during the periods when meetings were missed. I cannot say whether this caused X an injustice.
52. The next annual review took place in November 2023. The EHC plan should have been issued within eight weeks. The next EHC plan to be issued is dated June 2024. This is four months late, which is fault.
53. The Council has caused Ms A an injustice by not issuing the new EHC plan as it should when Ms A is clearly already concerned about the way in which the Council is managing his education. It has also caused X an injustice as he missed the opportunity to have changes needed to his plan implemented.

The Council failed to review direct payments

54. Ms A also complained the Council did not review the direct payments it put in place as it should have.
55. The Council has said the direct payment covers provision specified in section F of the Tribunal Final EHC plan, which is weekly enrichment activities, weekly resources for curriculum subjects, and weekly PE activities.
56. This was reviewed in June 2022, as this is when the Council agreed to increase the number of hours of tuition X was receiving. The overall provision was again reviewed in November 2022 as part of the Tribunal process and the EHC plan which was issued following the hearing.
57. However, the Council has not shown that it specifically reviewed whether the payments were being paid and used as intended. The Council did not review the direct payments following the December 2022 plan either. This is fault.
58. The injustice to Ms A and to X are somewhat limited in relation to the earlier plan as the overall provision was considered four months after the February 2022 plan, and again five months after that. The impact of not reviewing the later plan is greater, as the Council did not consider whether the payments were meeting their intended purpose.
59. However, the lack of a review of the direct payments has caused Ms A to have to chase the Council for funds to cover the provision where the funds were lacking, and some provision was missed due to this.

The Council failed to respond to the complaints appropriately

60. Ms A raised the above complaints with the Council in September 2023. The Council failed to provide its substantive response until after Ms A had brought the matter to the ombudsman, in July 2024. This is fault.
61. Ms A’s complaint was that her child’s special educational needs were not being met. The Council’s delay in responding to the complaint has delayed the issues being considered and addressed. This is a significant delay, causing significant injustice to Ms A and to X.
62. When the Council responded to Ms A’s complaints, acknowledged failures in its service and made an offer totalling £5,300 in acknowledgement of the impact. This includes a £300 payment each to Ms A and X, to recognise the impact on each of them of the delayed complaint response.
63. There is therefore an offer of £4,700 in recognition of the injustice caused by missing provision. I am satisfied the offer made by the Council is an appropriate remedy for the injustice I have identified.

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Agreed action

64. Within one month of the decision, the Council should:

• Make a payment of £5,300, less any part of this offer already paid to Ms A.

65. Within three months of the decision, the Council should:

• Review how it ensures that the provision in an EHC plan is being provided, and make changes if needed, in order to avoid what has happened. If changes are implemented, they should be shared with all relevant staff. If there is an appropriate process in place, the Council should remind relevant staff of the need to comply with this.

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

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Final decision

67. We found the Council is at fault and has caused an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman