Summary: Mr X complained about the Council’s failure to complete his child’s (Y) Education, Health and Care Plan annual review. He also complained the Council did not provide Y with suitable education and with the provisions contained in his Plan after he was excluded from his school and its poor communication with Mr X. There were various faults by the Council which caused injustice to Y and Mr X. The Council will take action to remedy the injustice caused.

The complaint

1. Mr X complained the Council did not:
1. complete annual reviews of his child, Y’s, Education, Health and Care (EHC) Plan between 2019 and 2024.
2. provide Y with suitable education and with the provisions set out in his EHC Plan after he was permanently excluded from his school in January 2024.
3. communicate with Mr X after Y was permanently excluded from school in January 2024 and about his EHC Plan.
2. Mr X said as a result, Y had been left without a school placement, he lost out on education and support and caused him extreme distress because he relies on routine. Mr X said the matter also caused him significant distress and worry.

Back to top

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 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 Tribunal in this decision statement.
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. 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.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

Back to top

What I have and have not investigated

11. I have investigated matters from August 2023 to August 2024. This period covers 12 months from when Mr X complained to the Ombudsman in August 2024.
12. I have not exercised discretion to investigate matters prior to August 2023. This is because they are late complaints and there are no good reasons to investigate them now. Mr X was aware of the matter at the time, and I consider he could have complained to the Ombudsman sooner.

Back to top

How I considered this complaint

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

Back to top

What I found

Education, Health and Care Plans

15. 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.
16. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (section 42 of the Children and Families Act 2014). 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)
17. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
18. Councils can delegate the holding of the review meeting to a school, but councils remain responsible for the overall review process.
19. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
20. There may also be situations when an emergency review or a re-assessment becomes appropriate particularly when a child or young person’s needs change significantly. The council must notify the child’s parent or the young person of its decision whether it will undertake a re-assessment within 15 calendar days of receiving the re-assessment request. Where the council decides not to re-assess, it must notify the parent or young person of their right to appeal that decision. (9.190 SEND Code)
21. Where the council decides to re-assess, the overall maximum timescale from its decision to re-assess to the issuing of the final EHC Plan is 14 weeks. (9.192 SEND Code)
22. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final Plan is issued.

Alternative Provision

23. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
24. If a child is unable to attend school because of permanent exclusion, the council must provide suitable full-time education for the child from the sixth school day of exclusion.
25. 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)
26. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.
27. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? updated August 2023. Some of the recommendations we made included:

• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Independent Review Panel (IRP)

28. The IRP considers the evidence and reviews the decision taken by a school’s governing body not to reinstate a child following their permanent exclusion from school.
29. The IRP has no power to direct the governing body to reinstate a child or remove the fact that the child was permanently excluded from their school record.
30. The IRP’s decision may:
1. uphold the exclusion decision.
2. recommend that the school’s governing body reconsiders its decision.
3. quash the decision and direct the governing body reconsiders the exclusion.
31. The governing body may still make the same decision not to reinstate the child. Where this is the case, the governing body must inform the parent. The parent has no further right of review.

Background

32. Y has special educational needs (SEN), and he has an Education, Health and Care (EHC) Plan.
33. Some of the provisions set out in Y’s final EHC Plan which was issued before his December 2023 annual review included:
1. access to a child-led experiential and play-based specialist learning environment where he can explore and discover with support from a high ratio of staff.
2. planned activities with clear routines that incorporate modelling, praise and the inclusion of one or two peers who he can practice taking turns with.
3. a key adult (either via one-to-one intervention or within lessons) should support Y to regulate his feelings.
4. specific, planned opportunities by means of individual and small group experiences to develop social language and play skills, with both adults and other children in the learning environment.

Key events

34. Y’s EHC Plan annual review was initially scheduled for late October 2023. Mr X was sent an invitation letter to the review meeting, but he could not attend. This was because Mr X travelled out of the UK for an extended period.
35. Y’s school informed the Council that Y was at significant risk of permanent exclusion due to his behaviour and risk to others at school. The school said it believed Y might require a change in placement to meet his needs.
36. Y’s EHC Plan annual review was rearranged to December 2023. The Council said it verbally invited Mr X to the review meeting because it had originally sent him an invitation for the initial October 2023 meeting.
37. On 15 December 2023, Y’s EHC Plan annual review was conducted by Y’s school, and it was held over the phone. The annual review paperwork stated Y’s mother attended the meeting. Mr X said he was not invited, and he was unaware the meeting was an annual review. The Council said the outcome of the annual review meeting was for Y’s EHC Plan to be amended due to concerns about his escalating behaviour and a need for a placement change.
38. On 17 January 2024, Y was permanently excluded from his school. The school informed the Council about Y’s exclusion the same day.
39. On 26 January, the Council made a 15-hour per week home tuition referral for Y. It said this was to provide Y with alternative provision under section 19 of the Act and to deliver the special educational provision contained in his EHC Plan. The Council said the commissioned hours it requested was based on Y’s attainment level from his last assessment completed by his school.
40. On 28 February, the Council said Y started a 15-hour one-to-one home tuition. Mr X said Y only received 2.5 hours of home tuition per week.
41. In February 2024, the Council said it issued its decision letter to amend Y’s EHC Plan. The decision letter stated Y’s annual review was held in January 2024. And in April, the Council said it sent a copy of Y’s draft EHC Plan to Mr X and invited parental comments. The draft Plan stated Y’s annual review was held in October 2023. Mr X said he did not receive the decision letter and the draft Plan and therefore he was unable to make any parental comment. Mr X said this was because a subject access request showed the Council had sent the document to a wrong email address. The Council said it was provided with conflicting email addresses for Y’s parent.
42. In April, the Council said it received response from a school it consulted with the previous month. The Council said the school was an appropriate setting for Y, but it had no availability.
43. On 19 April, an Independent Review Panel (IRP) meeting which was facilitated by the Council was held to consider the permanent exclusion decision made by Y’s school. The IRP decided that the decision made by the governing body of Y’s school not to reinstate him at school be quashed and it directed the school to reconsider Y’s reinstatement.
44. Y’s school maintained its original decision not to reinstate Y.
45. The home tuition provider reviewed Y’s progress in March and July 2024. The report showed Y received five hours tuition per week and had made some progress in reading but not in other areas. The review report was sent to Mr X and the Council.
46. The provider’s invoices indicated the home tuition hours Y received in the following months were:

• February – 6 hours
• April – 15 hours
• May and June - 20 hours each
• July - 12.5 hours.

47. The Council consulted with seven additional schools in July, but none was suitable either to meet Y’s needs or due to lack of available spaces.
48. The Council has not issued Y’s final EHC Plan as of April 2025.

Complaint

49. On 12 April 2024, Mr X formally complained to the Council about its:

• failure to reassess Y’s changing SEN and its failure to undertake Y’s EHC Plan annual review;
• lack of communication with Mr X since Y was excluded from school and about his EHC Plan;
• failure to provide Y with alternative provision from day six of his exclusion; and
• failure to provide Y with full-time education. Mr X said Y was only receiving 2.5 hours of education per week and that the provider was unable to provide him with more hours.

50. Mr X asked the Council to allocate Y a caseworker and to arrange an urgent annual review of Y’s EHC Plan. He also asked the Council to reassess Y’s needs by conducting an Educational Psychologist (EP), Speech and Language Therapy (SALT) and Occupational Therapy (OT) assessments. Mr X asked the Council to consult with other schools immediately in the event the IRP decision was unsuccessful.
51. In its complaint responses, the Council:

• said it sent Mr X an invitation for the original annual review scheduled for late October which was then re-arranged to 15 December 2023 due to his extended trip outside the UK.
• confirmed it made the home tuition referral on 26 January 2024 after it received Y’s latest assessments from his school and confirmed Y started receiving home tuition in February 2024.
• said Y was receiving 15-hours home tuition per week on a one-to-one basis which was more intense and therefore there was no requirement to provide Y with 30 hours or full-time tuition.
• said the provider may have the capacity to increase the home tuition hours in line with Y’s needs until a suitable educational placement was identified.
• said it would continue to formally consult with appropriate educational settings.
• apologised for its delay with reallocating a caseworker to Y’s case after the previous worker left the service. It apologised for its poor communication with Mr X.
• confirmed it had requested an EP assessment for Y.

52. Mr X remained dissatisfied with the Council’s response, and he made a complaint to the Ombudsman.
53. In response to our enquiries about Mr X’s reassessment request on 12 April 2024, the Council said it holds no record of its decision to Mr X’s request on its system. The Council stated it asked for an EP input on 26 June, and a report was issued in September 2024. As regard an OT assessment, the Council said Y’s case was considered by the health gateway panel but said he did not meet the criteria for the assessment.
54. Mr X said that after several months, the Council eventually agreed to complete the SALT and OT assessments for Y.

Analysis

EHC Plan annual review process

55. There were conflicting accounts from the Council and Mr X about the 15 December 2023 annual review meeting. The annual review paperwork stated Y’s mother attended the meeting, but Mr X alleged they were unaware it was an annual review meeting. The Council was unable to provide evidence of the call recording and/or case notes to show it informed Mr X of the meeting. Therefore, I cannot come to a view about what happened in relation to this matter. However, I criticise the Council for its poor record keeping. It is good practice for councils to keep proper and appropriate records for audit purposes.
56. The Council should have issued its decision letter that it would amend Y’s EHC Plan to Mr X on 12 January 2024 which was four weeks after the December 2023 annual review meeting. The Council did not send its decision letter until February 2024. This was fault and not in line with statutory guidance. I acknowledge the Council said it was provided with conflicting email addresses for Y’s parent which caused some confusion about which email address to use. However, there was no evidence to show the Council updated its records/system when it was provided with different email addresses for Y’s parents. So, on balance, I find the Council sent the decision letter in February 2024 and Y’s draft EHC Plan in April to a wrong email address which meant Y’s parents did not receive both documents. These were faults which caused distress and uncertainty to Mr X. I also find the Council’s error sending Y’s draft EHC Plan to a wrong email address meant Mr X was denied his opportunity to make parental comments on the draft Plan.
57. Statutory guidance states a final EHC Plan must be issued within 12 weeks of the review meeting. Therefore, in this case, Y’s final EHC Plan should have been issued on 8 March 2024. The Council has still not issued Y’s final EHC Plan. This is a significant delay. The Council’s failure to complete Y’s final EHC Plan within the statutory timescale is fault.
58. I cannot say what specific injustice the Council’s delay has caused to Y. This is because his Plan has not been finalised, therefore I do not know what additional provision may have been agreed and included in the final Plan. In the absence of a new EHC Plan, the Council should have continued to secure the special educational provision set out in Y’s previous EHC Plan.
59. A parent/guardian or young person’s appeal right to the Tribunal is engaged when the Council issues the final EHC Plan. I find the Council’s action has delayed Mr X of his right of appeal to the Tribunal if he disagreed with the content of the Plan. The Council’s delays also caused Mr X distress, frustration and worry.
60. Mr X asked the Council to reassess Y in April due to the significant changes in his needs. In line with the SEND code, the Council should have made a decision on whether it would complete a re-assessment and notified Mr X within 15 days of his request and then completed Y’s re-assessment within 14 weeks. This includes the Council issuing Y’s final EHC Plan.
61. In this case, there was no evidence to show the Council issued its decision letter about the re-assessment request. This was poor record keeping and it was fault. The Council should have completed the re-assessment process by 19 July 2024, but this was not done in Y’s case, and it was fault. It caused Mr X distress, frustration and uncertainty. It also meant Y was denied an opportunity for his changing needs to have been re-assessed sooner and on balance to determine what additional provisions would have been required and put in place to meet his SEN.

Special educational provision and alternative provisions

62. The Council was aware that Y was at risk of permanent exclusion and needed a new placement in December 2023. Y was excluded from school on 17 January 2024 which meant the Council should have provided him with suitable full-time education from 25 January 2024 (the sixth school day of exclusion) in line with statutory guidance. This also meant that the school named in Y’s EHC plan was no longer accessible to him. The Council made a home tuition referral on 26 January 2024 and Y did not start the tuition until 28 February 2024. This was a delay of approximately 20 school days, and it was fault. It meant Y lost out on educational provision during this period.
63. Although the Council provided some education to Y and it had decided 15 hours tuition per week was sufficient, yet Y did not consistently receive 15 hours home tuition (section 19 of the Education Act 1996). There was also no evidence the Council was able to provide the provision set out in Y's EHC Plan as outlined in paragraph 33 above (section 42 of the Children and Families Act 2014). These were faults. It led to loss of education and provision for Y from January to July 2024 (from when Y was permanently excluded to the end of the summer term). It also caused uncertainty to Mr X in not knowing whether the home tuition hours provided to Y was suitable to meet his needs.
64. I find the Council missed out on different opportunities to have reviewed whether the tuition hours were fully delivered and was sufficient for Y. For instance, when Mr X raised his concerns to the Council in April 2024 that Y was only receiving 2.5 hours per week and the provider was unable to provide him with more hours. Also, the provider’s review reports in March and July 2024 and the monthly invoices it sent to the Council all showed Y was only receiving 5 hours of tuition per week instead of the 15 hours it originally commissioned. These were faults

Poor communication

65. The Council already accepted and apologised for its poor communication with Mr X and its delays with reallocating a new worker to Y’s case. I consider these were faults and caused Mr X distress and frustration.

Conclusion

66. As identified above, I find evidence of faults by the Council which caused injustice to Y and Mr X. This will be addressed in the ‘action’ section below.
67. We have recently made service improvement recommendations in other decisions that the Council should provide an action plan to ensure it completes EHC Plans annual reviews in line with statutory timescales. We also recommended staff training about the Council’s section 19 duty and for the Council to have a strategic overview of the available alternative provision in its area and resolve identified gaps in provision. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made service improvement recommendation about the same identified issues in this case. These identified issues are already being addressed through other cases we have investigated.
68. However, I will make further service improvement recommendations as regard other faults identified in this case in the ‘action’ section below.

Back to top

Action

69. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• issue Y’s final Education, Health and Care Plan
• apologise in writing to Y and Mr X to acknowledge the injustice caused to them by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• review Y’s level and suitability of his home tuition provision. The Council should then amend/provide Y with the appropriate educational provision based on the review outcome and in line with section 19 of the Education Act 1996 and section 42 of the Children and Families Act 2014
• make Y a payment of £3,200 to acknowledge the loss of suitable education and provisions to him caused by the Council’s failure to discharge its duties under section 19 of the Education Act 1996 and under section 42 of the Children and Families Act 2014. This is calculated at £1,600 per term (January to July 2024) in line with our guidance on remedies
• make Mr X a symbolic payment of £300 in recognition of the uncertainty about what additional provision Y may have missed out on because of the Council’s failure to issue his final EHC Plan following the December 2023 annual review. And to also acknowledge the distress, frustration, worry, uncertainty caused to Mr X and denying him of his appeal rights to the SEND Tribunal
• remind relevant staff of the importance of good record keeping. This is to ensure all Education, Health and Care Plan annual review documents such as invitation letters and decision letters to parents are properly kept on the Council’s system for audit purposes
• ensure the Council holds the correct contact details for parents on its system and communicate with them in a timely manner. This is to make sure relevant documents of their children’s Education, Health and Care Plan annual reviews are correctly issued to them, and they are kept updated about their children’s cases
• provide guidance and training to relevant staff about the Council’s non-delegable duty under section 42 of Children and Families Act 2014. This is to ensure the Council provide the specified special educational provision contained in Section F of an Education, Health and Care Plan for the child or young person
• remind relevant staff to consider and complete re-assessments of a child and young person’s needs in accordance with statutory timescales, Regulation and Code.

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

Back to top

Decision

71. I find fault by the Council causing injustice to Y and Mr X. The Council will take action to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman