Summary: Mrs X complained the Council has failed to provide her son with any educational provision. We find the Council was at fault for failing to provide Mrs X’s son with the education and specialist provision in his Education, Health and Care Plan. This caused Mrs X distress and upset, and her son lost out on the education and provision he was entitled to. The Council apologised to Mrs X and paid £6,750 to reflect the missed education and provision and the distress and upset caused. The Council has agreed to our recommendation to pay a further £750 to reflect the loss of Mrs X’s son’s education and provision.

The complaint

1. Mrs X complained the Council has failed to provide her son (Y) with any educational provision. She says this has had a detrimental impact on Y and the wider family.
2. Mrs X is supported by Y’s advocate (Mrs Z) in bringing the complaint to the Ombudsman.

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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 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.
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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).
8. 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)

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What I have and have not investigated

9. I have investigated events from late May 2023 to July 2024. I have not investigated matters before this as they are late and there are no good reasons why Mrs X did not bring her earlier concerns to us sooner.

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How I considered this complaint

10. I considered evidence provided by Mrs X, Mrs Z and the Council as well as relevant law, policy and guidance.
11. Mrs X, Mrs Z 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

Special educational needs

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)  

Annual reviews

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
15. 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) 
16. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

What happened

17. Y has complex special educational needs and an EHC Plan. Section F of his EHC Plan says he needs access to fortnightly speech and language (SALT) sessions, differentiated literacy/numeracy and learning programmes and access to physical and sensory rich activities and soft play. Y has not attended a school setting for several years. His current EHC Plan says he needs access to a specialist setting, but the name of the placement is blank.
18. The Council agreed funding in June 2023 for Y to access tuition at Provider X for nine hours per week.
19. The Council called Provider X in August and asked whether the tutor had confirmed a timetable for Y’s tuition. Provider X said it would contact the tutor.
20. The Council held an annual review of Y’s EHC Plan in September. It noted Y was accessing music therapy sessions at home once a week and it was exploring tuition. It agreed to explore placements for Y.
21. The Council issued a draft EHC Plan for Y in late October.
22. The Council sent a referral to a tuition provider in November. It also updated Mrs X and said it would continue to look for placements for Y.
23. Mrs Z complained to the Council in January 2024 about its failure to provide Y with the education and special educational provision in his EHC Plan.
24. The Council consulted with four educational settings in late January for Y to attend from September onwards.
25. The Council responded to the complaint in late February. It said Y had not received a consistent and suitable education for several years. It had explored local provision and alternative provision, but they were not successful. It said it had consulted with several settings, and it was waiting for responses.
26. The educational settings responded to the consultation letters and said they could not meet Y’s needs.
27. The Council had a meeting with Mrs X and Mrs Z in March. The Council said it would request a SALT assessment and sensory occupational therapy assessment for Y. It also said it would send consultations to other settings. Mrs X said she would send some activities that Y could engage in.
28. The Council consulted with further settings in April, May and June. They all responded and said they could not meet Y’s needs.
29. The Council issued its final response to the complaint in June. It apologised Y had not been able to access education. It said the main provision Y had accessed was music therapy. It would continue to make referrals to other providers. It also said it had reviewed and amended Y’s EHC Plan several times without finalising it. However, it was unsure the Plan accurately reflected Y’s needs and therefore it was going complete a reassessment of his EHC needs. To reflect the distress caused to Mrs X and Y, it offered £6,750. Mrs X accepted the Council’s offer.

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Analysis

30. From late May 2023 to July 2024 Y received music therapy once a week for up to 60 minutes. However, he has not received any other provision. There is no evidence the Council made any attempt to secure SALT, access to physical and sensory rich activities and soft play. In its response to my enquiries, the Council explained tuition was not consistent due to the difficulties finding a tutor. The Council agreed funding for Y to receive tuition at Provider X, but it has not given me any evidence this materialised. It also made a further referral for another tuition provider in November 2023, but there is no evidence it received a response, or it pursued the matter any further. Therefore, Y has not accessed differentiated literacy/numeracy and learning programmes. The Council has a legal and non-delegable duty to secure the provision in a young person’s EHC Plan. Its failure to secure Y’s provision is fault.
31. The Council held an annual review of Y’s EHC Plan in September 2023. It should have issued Y’s final EHC Plan by December 2023. The Council issued Y’s draft EHC Plan in October 2023 but did not finalise it. This is fault. I note when the Council issued its final response to the complaint, it said it would do a reassessment of Y’s EHC needs to ensure his EHC Plan is up to date.
32. The Council’s faults have caused Y a significant injustice. Children have an effective right to an education and time they miss is difficult to replace later. Y has missed a significant amount of education and provision. The period I have investigated also covers years 10 and 11, and so it was a significant time in Y’s school career.
33. The Council’s faults have also caused Mrs X distress and upset over an extended period. She has had to take on additional caring responsibilities while Y has been at home. The Council’s delays in finalising Y’s EHC Plan have also frustrated her appeal rights to the SEND Tribunal and caused her uncertainty over Y’s education and provision.
34. The Council has accepted it was at fault. It has apologised and offered £6,750. In its response to my enquiries, it said this covers £1,750 per term from April 2023 to July 2024 and £500 for the distress and upset caused to Mrs X. However, this does not equal £6,750 and so it is not clear how the Council has calculated its offer. Our guidance on remedies says where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. Y has complex special educational needs. He did not receive any educational provision apart from limited music therapy and this was not in his EHC Plan. It was also an important time in his school career and Mrs X’s appeal rights have been frustrated. I therefore recommend £2,000 per term from late May 2023 (which is when my investigation starts) to July 2024. This is £7,000. £500 for Mrs X’s injustice is in line with our guidance on remedies. Therefore, my total recommendation is £7,500. The Council has already paid Mrs X £6,750. It should therefore pay a further £750.
35. It appears some progress on Y’s education and provision may have been made since July 2024. However, this is outside of my consideration for this investigation (paragraph nine of this statement).
36. We have recently highlighted issues in other cases with the Council’s failure to secure the education and provision in a young person’s EHC Plan and its delays during the annual review process. We have asked the Council to review its processes and produce an action plan. Therefore, I have not made any further service improvement recommendations.

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Agreed action

37. By 17 April 2025 the Council has agreed to pay Mrs X a further £750 to reflect the loss of Y’s education and specialist provision. We suggest Mrs X uses this payment for Y’s educational benefit.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was fault by the Council, which caused Mrs X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman