Summary: Mrs Y complained the Council failed in its duty to ensure that her son’s Education, Health and Care plan was reviewed in line with the statutory timescales. She also complains the Council did not ensure her son received the educational provision he was entitled to. Some of Mrs Y’s complaint is too old for us to consider. In the other parts of the complaint, we find fault and the Council has agreed to provide a symbolic remedy in recognition of a shortfall in D’s interim provision between May and September 2024.

The complaint

1. Mrs Y complains the Council has failed in its statutory duty to ensure that her son’s Education Health and Care (EHC) plan was annually reviewed between 2021 and 2024. As a result, Mrs Y says her appeal rights have been frustrated because she was not given the opportunity to challenge the decision to maintain the EHC plan.
2. Mrs Y also says the Council has failed in its duty to ensure that Section F of the EHC plan was delivered and as a result her son did not receive the provision he was entitled to.
3. Mrs Y says the failures have caused injustice in the form of educational loss and distress.

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The Ombudsman’s role and powers

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. 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)
6. 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)
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)

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What I have and have not investigated

8. I have not investigated matters which happened between March 2021 and July 2023 for the reasons explained in paragraph four of this decision statement. I have considered Mrs Y’s explanation for not complaining to us sooner, but I am not persuaded this represents good reason. This investigation has instead focused on events which happened after July 2023 as this is within one year of Mrs Y’s complaint to us.
9. I have investigated what happened until the end of the school year in July 2024. This is because the LGSCO’s Investigation Manual suggests that, where there are on-going issues, we should specify an end date beyond which we will not investigate. This should be no later than the date when the complaint was submitted to us and may well be earlier. Mrs Y submitted her complaint to us on 1 July 2024.
10. I understand there are ongoing disagreements around D’s provision, finalisation of his EHC plan and the personal budget. These are recent matters which post-date Mrs Y’s approach to the Ombudsman and are outside the scope of this investigation. Mrs Y may wish to make a separate complaint to the Council about things which have happened since July 2024.

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How I considered this complaint

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

What should happen

14. Councils have a duty to secure the specified special educational provision set out in Section F of the EHC Plan for the child or young person (S42 of The Children’s and Families Act). 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)
15. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan all the time, for example the council may secure provision which subsequently stops without it being informed. The Ombudsman does consider that councils should be able to demonstrate due diligence and as a minimum 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 placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
16. When a pupil of compulsory school age is unable to attend school for physical or mental health reasons, or otherwise, Section 19 of the Education Act may apply. Where the pupil has an EHC plan, we expect councils to try and secure as much Section F provision as is possible in the home or alternative provision setting.

Summary of key events relevant to the complaint

17. This section provides an overview of the key events leading to Mrs Y’s complaint. It does not include every action which happened in the period complained about.
18. Mrs Y’s son, who I will call D, has special education needs and is working significantly below age related expectations. The educational provision which D needs is set out in an EHC plan which the Council first issued in March 2021. This named a mainstream primary school and an independent secondary school from September 2021.
19. Amongst other provision, Section F of D’s EHC plan says:
• D will receive education within a “highly structured multisensory 1:1 intervention teaching for English and Maths”
• D will develop his word processing skills through a touch-typing programme.
• Staff to use visual prompts to ensure D knows the order of activities.
• D to have access to a quiet nurturing space at times he is feeling overwhelmed.
• D to be taught key social skills in a structured way.
20. D stopped attending school in February 2024. Mrs Y contacted the Council to confirm D’s absence. Mr and Mrs Y also attended a meeting at the school to discuss D’s education. Throughout February, Mr and Mrs Y maintained contact with the Council about D’s provision.
21. On 5 March 2024 the Council called Mrs Y to discuss D’s case and agreed it needed to arrange a review of his EHC plan.
22. On 13 March 2024 D’s school emailed Mrs Y to gather her views for the review. D’s EHC plan had not been reviewed in the three years since its issue in 2021. Mrs Y had raised concerns about the failure of the school to meet D’s needs.
23. The Annual Review meeting went ahead on 20 March. The school confirmed D had not attended for eight weeks. During that time the school had funded eight hours of home tuition each week for D.
24. D’s school gave six weeks’ notice to end his placement on 27 March with an end date of 8 May 2024. The school’s letter said: “Until this date we will support [D] by using his EHCP budget to fund a package that we have agreed with parents including Tutoring and Vocational activities”.
25. The Council agreed to take responsibility for funding after this date and proposed 15 hours of provision each week as an interim measure. The Council said this “… could include a combination of academic subjects work and creative elements such as Dance. If the Local Authority could not commission someone suitable then they would pay for the Parents to arrange known or suitable sessions”.
26. On 28 March the Council wrote to Mrs Y confirming its decision to amend D’s EHC plan. The letter said the Council would send a draft EHC plan within six weeks.
27. The Council issued an amended draft EHC plan on 9 April. Mrs Y says the plan she initially received was for another child, not D. The Council re-issued the draft plan and Mrs Y expressed concerns that the new plan did not contain any updated information and did not properly reflect D’s needs.
28. D’s school removed him from their roll on 9 May. The school ended its provision, and the Council agreed to take over responsibility for funding D’s tutor.
29. Mrs Y complained to the Council about delays with D’s EHC plan and the review process. She also expressed concerns about the Council not ensuring that D’s interim provision was in line with Section F of his existing plan.
30. On 10 July the Council contacted Mrs Y to confirm its decision to reassess D’s needs. The Council said an Educational Psychologist (EP) would contact the family to meet and assess D.
31. On 23 July the Council agreed to reimburse the fees paid by Mrs Y for 1:1 English and Maths tuition and a one hour lesson each week at dance school. The Council reimbursed the fees paid by Mrs Y from 10 May.
32. Invoices provided by D’s tutor show they have now received payment for providing 12 hours of 1:1 tuition each week between 8 May and 23 July 2024
33. The Council issued a final EHC plan on 16 October 2024 with a blank Section I. The Council has acknowledged the plan does not meet D’s needs and he requires further assessment. The Council says another revised plan will be issued once those assessments are complete.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

34. The Council did not meet the statutory timescale to issue the final amended EHC plan within 12 weeks of the annual review meeting. In D’s case, the relevant deadline was 20 June 2024. The Council issued a final EHC plan on 16 October, almost four months later. The Council has since said the October plan does not appropriately meet D’s needs and D remains subject to further assessment. The delays have frustrated Mrs Y’s right of appeal to the SEND Tribunal.
35. The records show that Mrs Y regularly contacted the Council throughout Spring and Summer of 2024. Email exchanges show that Mrs Y requested callbacks to check on the progress of D’s provision and to chase the payment of outstanding invoices. In my view, the Council did not maintain an appropriate level of contact with Mrs Y. I consider this caused Mrs Y avoidable frustration, time and trouble. The delay also left D’s family out of pocket until the tuition costs were eventually reimbursed. This is fault causing injustice which the Council has agreed to provide a remedy for.
36. Whilst D was out of school, the Council had a duty to make interim provision available until it secured permanent provision or issued a final EHC plan with a right of appeal. That provision should reflect what was in Section F of the EHC plan. We say any interim provision should be full-time unless the Council makes a documented decision that full-time education is not in the child’s best interests, for example due to health needs.
37. The law does not define what full-time education is, but it is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. However, if a council is arranging one-to-one tuition, fewer hours may be appropriate due to the increased intensity of learning. Between February and July 2024, records show that D received the following provision each week.
1. Eight hours of 1:1 tuition funded by D’s previous school between March and May 2024.
2. Twelve hours of 1:1 tuition funded by the Council between 8 May and 23 July 2024.
3. One hour of dance provision funded by the Council each week between 10 May and 19 July 2024.
38. In my view, the Council’s duty to make interim provision for D began from 8 May 2024. Until this point, the school agreed to fund a package of tuition and vocational activities and so the Council’s duty was not engaged. After this date the Council agreed to fund 15 hours of 1:1 tuition. This was a suitable offer of interim provision. If a Council is arranging one-to-one tuition, fewer hours may be appropriate, given the increased intensity of learning. Therefore, one-to-one provision is worth more than provision delivered to groups.
39. During the period I have investigated, records show that D’s tutor delivered 12 hours of 1:1 tuition each week. Mrs Y says this was due to the tutor’s availability rather than D’s ability. There is no evidence of any checks undertaken by the Council to satisfy itself that both the quantity and quality of the provision was suitable for D. Had the Council done so it would have known that the tuition being delivered was less than the 15 hours it agreed. This is fault which caused injustice to D.

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Action

40. Within four weeks of our draft decision, the Council has agreed to:
• Contact Mrs Y with an update on the status of D’s final EHC plan. The Council should aim to finalise the plan without further delay and to avoid the need for Mrs Y to complain again.
• Pay £750 to Mrs Y in recognition of her frustrated appeal rights and her significant time and trouble in contacting the Council for updates. This payment also recognises the impact of Mrs Y’s out of pocket expenses due to delays in the Council’s payment of invoices.
• Make a symbolic payment of £350 to Mrs Y for D’s educational benefit. This is for the failure to ensure that D received full-time interim provision during the ten school weeks from 8 May 2024 to the end of the academic year.
41. The Council will provide us with evidence it has complied with the above actions.
42. I have not recommended any service improvements because the Council has already implemented a ‘SEN Improvement Plan’ to oversee various improvements, such as:
• reviewing and streamlining workflows to eliminate bottlenecks and ensure timely issuance of EHC Review outcomes.
• robust monitoring systems to track the progress of EHC reviews and ensure adherence to established timelines.
• comprehensive training for staff to equip them with the necessary skills and knowledge to manage the EHC review process efficiently.
• ensuring adequate resources are available to support the timely completion of EHC reviews, including additional staffing as a result of a £7 million investment.
• establishing channels for parents and guardians to provide feedback, which will be used to continuously improve processes.

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Decision

43. I find fault causing injustice. We have asked the Council to implement the actions listed in the section above to remedy the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman