Summary: Mr D complained the Council caused delay in the Education, Health and Care (EHC) plan process, failed to provide his child (X) with an education, and how it handled his concerns. We found fault by the Council for causing unnecessary delays in the EHC plan process, to arrange educational provision for X, and provide Mr D a refund for agreed provision. The Council will apologise and make payment to Mr D to acknowledge the injustice this caused X and the family.

The complaint

1. The complainant, Mr D, complained about the Council’s handling of his daughter’s (X) education. He said it had failed to:
• adhere to the statutory timescales to finalise X’s EHC plan following an emergency annual review;
• provide X with an education since July 2023 and provision set out in her EHC plan; and
• respond to his communication and reimburse him for agreed provision in a timely manner.
2. Mr D said, as a result, X experienced distress and had a loss of education. He said he also experienced distress and uncertainty.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. 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)
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 Mr D’s complaint about the Council’s handling of:
• the EHC plan process following the emergency review in December 2022. While this part of Mr D’s complaint is late, I have found it appropriate to exercise my discretion to consider this as he continued to pursue his concerns with the Council;
• X’s education from July 2023 to February 2024 when Mr D complained to the Council, and X’s tuition started; and
• its refund to Mr D for X’s therapy provision.
10. I have not investigated Mr D’s concerns about:
• the provision set out in X’s final amended EHC plan in September 2023 and how the Council reached its views. This is because the contents of the plan can be, and have since been, appealed to the SEND Tribunal;
• a refund for, or payment towards, X’s transport costs as this was not agreed or provision set out in the EHC plan at the time; and
• educational provision provided to X from March 2024, which was when the Council had put in place tuition for X. This is because any subsequent concerns was not part of the complaint to the Council.

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How I considered this complaint

11. I considered evidence provided by Mr D and Council as well as relevant law, policy and guidance.
12. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received 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

Education, Health and Care plans

14. 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.
15. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. 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.
17. 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.
18. 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)
19. 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.
20. There is a right of appeal to the Tribunal against a council’s decisions. This includes:
• 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; and
• amendment to these elements of an EHC Plan.

Education other than at school (EOTAS)

21. Councils have a duty to provide educational provision which meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school. This is referred to as Educational Other Than At School.
22. For children and young people with an EHC plan, the EOTAS provision must be covered in section F of an EHC plan which should detail the package of education being provided.

Council’s complaints policy

23. The Council says it will:
• initially attempt to resolve complaints through informal resolution. This should take a maximum of 10 working days;
• if the matter is not resolved, it will consider complaints under its stage 1 process. A response will be provided within 20 working days, which starts from the point when it decides a complaint is acceptable under its stage 1 process; and
• if the matter remains unresolved, a complainant can request a stage two review. This will be handled by a senior manager and a response will be provided within 25 working days.

What happened

24. Mr D’s daughter (X) has an EHC plan which sets out her health conditions, her special educational needs, and the support she should received to enable her to access her education.
25. In September 2022 X’s EHC plan listed the mainstream school she should be attending. However, during the autumn term the placement broke down. Attempts to put a reduced timetable and other steps in place did not result in X accessing her education.
26. An emergency annual review was held in December 2022. It was agreed X’s needs could not be met in a mainstream school, and she could not currently attend a school placement. X’s EHC plan should therefore be amended, and this should focus on home tutoring and support relevant for her needs.
27. The Council asked X’s school to arrange tuition for X. The school arranged for a tuition provider and paid for weekly specific therapy sessions.
28. In Summer 2023 the Council issued X’s draft amended EHC plan. This set out a school placement was currently not suitable for X, and she should receive EOTAS. This should include tuition up maximum 10 hours per week. It also agreed X should continue to receive her specific weekly therapy sessions.
29. In September 2023 X’s previous school no longer arranged X’s tutoring, nor did it pay for her therapy sessions. The Council had sought providers to deliver X’s tuition and found a new provider. X’s final amended EHC plan was also issued by the Council.
30. However, X’s tuition did not start with the Council’s chosen provider, and Mr D had to fund X’s specific therapy sessions himself.
31. By November 2023 the Council became aware the tuition had not started. It spoke with the tuition provider which explained the delay had been due to staffing issues. The Council also spoke with Mr D who no longer wanted to work with the tuition provider and asked the Council to find an alternative.
32. The Council agreed and started searching for a different tuition provider.
33. Mr D also asked the Council to pay for X’s specific therapy sessions, including transport and other provision he believed X should receive.
34. In November 2023, the Council started the process for X’s therapy to be paid by the Council. It explained, once this was in place, it would pay the provider directly for sessions since September 2023. The provider would subsequently refund Mr D. However, it did not agree to fund transport or other provision Mr D asked for, which was not in X’s EHC plan. It explained he had the right to appeal to the SEND Tribunal.
35. Mr D appealed the contents of the September 2023 EHC plan to the SEND Tribunal.
36. In December 2023, Mr D continued to raise his concerns to the Council that X was not receiving an education, and he had not received his refund for X’s therapy.
37. In January 2024 the Council paid X’s specific therapy provider, which subsequently refunded Mr D for the costs he had since September 2023. The Council continued to fund the therapy afterwards.
38. In late February 2024 the Council had found a new tuition provider for X and her tuition started.

Mr D’s complaint

39. Mr D complained to the Council in February 2024. He said it had failed to:
• adhere to the statutory timescales to finalise X’s EHC plan following the emergency annual review;
• provide X with an education since July 2023 and provision set out in her EHC plan; and
• respond to his communication and reimburse him for agreed provision in a timely manner.
40. The Council acknowledged Mr D’s complaint and arranged for tuition to be put in place, but did not provide its complaint response until April 2024. It initially upheld part of his complaint only.
41. Mr D asked the Council to escalate his complaint as he did not believe the Council had arranged tutoring in Autumn 2023 and only parts of his complaint was upheld.
42. The Council provided its final complaint response in May 2024. It agreed:
• it had failed to adhere to the statutory timescales for the EHC plan process for X. It explained it had since made significant investments in its special educational needs staffing and support to address the delays; and
• X had experienced a loss of education between September 2023 and February 2024. It explained it had arranged for tuition in Autumn 2023, but this was not delivered to X and it had taken an extended amount of time to find an alternative provider.
43. However, the Council did not agree it had communicated poorly, or a senior manager had failed to respond to his communication. It explained its senior manager had responded to his communication in July 2023, but it was appropriate for staff allocated and involved with X’s case to respond to subsequent communication.
44. Mr D remains unhappy about the Council’s complaint response. He feels the impact on X and the family has not been properly considered. He also said the Council’s complaint response was late and its stage one was completed by the officer involved in X’s case.

Analysis and findings

Delays in the EHC plan process

45. The Council agreed and apologised for the delays it caused in the EHC plan process following its emergency review in December 2023. This was fault which caused a delay of almost seven months.
46. Mr D has since appealed the Council’s final amended EHC plan for X issued in September 2024, I can therefore only consider the delay in the finalisation of the plan. I cannot consider the impact the delay may have had on X as the provision in the EHC plan is subject to an appeal.
47. However, I am satisfied the Council’s delay caused Mr D distress and uncertainty. The Council’s apology was not enough to remedy this.
48. I have not made service improvement recommendations on this part of the complaint. This is because the Council has since increased in funding and staffing for its special educational needs service to improve its handling of the statutory timescales.

Failure to provide X with an education

49. The Council agreed it had failed to provide X with an education from September 2023 to late February 2024.
50. The evidence shows the Council had arranged for a tuition provider in Autumn 2023. However, due to issues by the tuition provider this did not start. There were subsequently further delays as the Council struggled to commission another provider to deliver X’s tuition.
51. While I acknowledge the challenges the Council faced, it was responsible for ensuring X received her education. It should have kept this under review and been aware the tuition had not started. I therefore agree the Council was at fault, and failed to ensure X received an education for a six-month period. This was from September 2023 to late February 2024.
52. The Council apologised to Mr D. However, I am not satisfied this was enough to acknowledge to impact its fault had on X and the family.

Communication and refunds

53. The Council did not agree it had communicated poorly, or it had failed to respond to Mr D’s communication.
54. I have not found the Council at fault in how it communicated with Mr D. It is clear the Council caused delays in the EHC plan process and the arrangement of tuition for X. However, it provided responses to Mr D’s concerns. Also, I would not expect for senior managers to be required to respond to the same concerns and communication as it was appropriate for officer’s involved with X’s case to respond.
55. Mr D also said the Council caused delays in providing the refund for X’s therapy, which he had to fund initially from September 2023. The evidence shows the Council arranged for the refund to the provider in January 2024 and Mr D subsequently received the refund.
56. I understand the Council had procedures it needed to follow to put such payments in place with the therapy provider. However, I found it should have known from Summer 2023 it would need to put this in place from September 2023 when X stopped being on roll with her school, or to have arranged a direct payment to Mr D. There were also some further unnecessary delays in late 2023 when it took a further two months to arrange the refund.
57. This did not cause X an injustice as she continued to receive the therapy sessions. As Mr D has since received the refund, the injustice is limited to the frustration he experienced as a result of the Council’s poor handling of this.

Complaints handling

58. I have also considered whether there was fault in the way the Council handled Mr D’s complaint. The evidence shows it initially attempted to resolve the complaint by arranging the tuition X was entitled to. However, while the Council’s policy allows it time to do this and provide a formal complaint response, I have found the Council caused a delay. This is because it took over 9 weeks to do so before its stage one complaints response was provided. This was fault, which caused Mr D some additional frustration.
59. There was no delay in the Council’s handling of its stage two response. Nor have I found fault by the Council for an officer involved in the case providing the stage one response, as this is allowed under its policy, and a senior manager reviewed the complaint at stage two.
60. The Ombudsman’s ‘Complaint Handling Code’ was updated in 2024. This sets out our expectations of local authorities when handling complaints. The Council’s existing policy does not fully comply with the code, which includes the process and timescales. I have therefore made a service improvement recommendation for the Council to review its policy’s compliance with our updated code.

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Action

61. To remedy the injustice the Council caused to Mr D and X, the Council should, within one month of the final decision:
1. apologise in writing to Mr D to acknowledge the injustice its faults caused the family and X;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Mr D a symbolic payment of £500 to acknowledge the distress and uncertainty he experienced as a result of the Council’s delays and faults;
3. pay Mr D a further £3,300, to use as he sees fit for the benefit of X, to acknowledge the impact of the loss of education and special educational needs provision she experienced between September 2023 to late February 2024.

In total the Council should pay Mr D £3,800.

62. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind staff in its special educational needs team to ensure agreed educational provision is put in place without unnecessary delay. This means planning and arrangements of such provision should start when the Council becomes aware a child’s or young person’s provision will no longer be arranged by a school; and
5. review its corporate complaints policy against the Ombudsman’s Complaint Handling Code. This is to ensure it operates it complaints process in line with the process and timescales set out in the code, or have good reasons to depart from the guidance.
63. The Council should provide us with evidence it has complied with the above actions.

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Decision

64. I have completed my investigation with a finding of fault by the Council which caused injustice to X and Mr D. The Council will apologise and make payment to acknowledge the injustice its faults caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman