Summary: The Council accepted that it had delayed in issuing the complainant’s son’s Education, Health and Care Plan. We too find fault, resulting in avoidable distress and a loss of suitable education for Miss X’s son. The Council had already offered to make a symbolic payment for the lost education and avoidable distress and time and trouble for the complainant. We consider this is a suitable remedy. We are therefore closing the complaint.

The complaint

1. Miss X complained that the Council delayed in issuing a final Education, Health and Care (EHC) Plan for her son, Y, after it was decided to amend his EHC Plan at the annual review of July 2023. The Council issued a final EHC Plan in May 2024. This delayed Miss X’s right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
2. Miss X also believes that, but for the delay, Y could have been placed at the special school, School C in September 2024. He has remained at his primary school during 2024/2025. But Miss X says his primary school (School D) is unsuitable and cannot meet Y’s needs.

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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’.
4. 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).
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
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).
8. 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

9. I have investigated events between July 2023 to May 2024, when the Council issued the final amended EHC Plan for Y. Miss X appealed the final Plan and, in December 2024, the Council agreed to name School C from September 2025 with Y remaining at School D. The SEND Tribunal issued a consent order.
10. As Miss X appealed the final EHC Plan, we cannot look at events related to the appeal. But we can consider whether the Council met Y’s special educational needs as set out in his EHC Plan.
11. The Council has investigated Miss X’s complaints, and it accepted it delayed in finalising Y’s EHC Plan and frustrated her right of appeal. It apologised and offered £900 for the injustice. Miss X does not consider this fully recognises the adverse impact on Y or the family. The Council has now reconsidered its offer.
12. Because the Council accepted fault, I have only set out brief facts.

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How I considered this complaint

13. I considered evidence provided by Miss X and by the Council and as well as relevant law, policy and guidance.
14. I issued a draft decision to the Council and to Miss X. I have taken into account their further comments when reaching my final decision.

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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.
16. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section J: Details of any personal budget made. 

17. 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).

Annual reviews

18. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
19. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
20. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan, it must do that “without delay”. A recent court case stated it should take 12 weeks from the annual review to complete an amended final EHC Plan.

Key facts

21. Y has a diagnosis of autistic spectrum condition (ASC) and wider and significant language and developmental delay. Y has no sense of danger and requires constant supervision. Miss X has two other pre-school children. Y has had an EHC Plan before starting primary school in view of his extensive needs.
22. Y was placed at School D, the local primary school, in accordance with his EHC Plan. In July 2023, there was an annual review of Y’s EHC Plan. Four weeks later, the Council agreed that the EHC Plan required amending. Miss X requested a placement at the mainstream special school for autistic pupils (School C).
23. In November 2023, the Council consulted School C ahead of a Panel hearing. There was then a delay in arranging a Panel hearing (which makes decisions about what is required for pupils with special educational needs). This Panel did not take place until February 2024. The Council accepts this was an unacceptable delay.
24. The Panel agreed that Y required a specialist school placement. But the Panel was unsure whether Y required a specific autistic school or a school for pupils with profound multi learning difficulties (PMLD). The Council consulted two PMLD schools.
25. In April 2024, Miss X complained to the Council.
26. In May 2024, the Panel decided that an autistic specific school was more appropriate. But School C, the Council’s specific school for autistic pupils, declined to accept Y because it considered that Y functioned at a lower level than the other pupils.
27. The Council decided to issue a final EHC Plan, naming School D for 2024/2025 school year and an unnamed specialist school for September 2025. The Council says it did this so that Miss X had a right of appeal to the SEND Tribunal. The Council consulted some other possible schools.
28. In September and October 2024, the Council sent its complaint responses, accepting fault, apologising and offering £900 for the avoidable distress. The Council has accepted that its complaint responses have taken too long.
29. Miss X appealed to the SEND Tribunal and, in December 2024, by consent, the Council agreed to name School C with Y starting in September 2025. The Council says that it had to direct School C to admit Y.
30. Y has remained at School D. Miss X says Y is isolated from his peers and has been for the past two years. He is in a room on his own with support staff. He is non-verbal and has not been receiving a suitable education while there. Miss X says he is not learning valuable life skills. School D cannot meet his sensory needs and do not have the trained staff to deal with his behavioural problems.
31. The Council says that it provided higher need funding for School D.
32. The Council has acknowledged the delay in issuing the final EHC Plan and the knock-on effect in providing the specialist provision. In response to my enquiries, the Council says that Y did not obtain a suitable education for the school year 2024/5.
33. The Council has now suggested a remedy payment for £1,200 per term, an additional £3,600 to the £900 already offered for the avoidable distress and frustration caused to the family.
34. The Council also introduced in December 2024 an EHC planning practice guidance for case officers and a complaints flowchart, both designed to reduce delays, along with an improved computer system.

Findings

35. It is to the Council’s credit that it accepts fault in its delay in issuing a final amended EHC Plan and also in dealing with Miss X’s complaint. It is also clear that Miss X and her family have had to cope with Y’s complex behaviours and, although the Council recognised Y required a specialist school place, it delayed in finding this.
36. I note that the Council did direct School C to admit Y. Miss X will always be left wondering why the Council did not do this earlier. She made the request for this placement in July 2023 and believes that, but for the Council’s faults, Y could have been placed at School C in September 2024 or at least in that academic year (2024/2025).
37. I agree with the Council’s findings of fault.

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Action

38. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
39. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
40. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
41. Our guidance on remedies also says that “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”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

42. I have considered the Council’s revised remedy. Y had a placement at School D and, while the education fell short of what was required, it is only right to take into account that some education was available. I also cannot say that Y could have been placed at School C sooner although I recognise Miss X will always be left wondering if that might have happened.
43. Therefore, on balance, I consider that the Council’s revised remedy is appropriate and in keeping with our guidance.
44. So, within one month of the final statement, the Council will:
1. make a symbolic payment of £3,600 to Miss X for the loss of suitable education for Y; and
2. make a symbolic payment of £900 to Miss X for the avoidable distress and frustration to her and her family caused by the Council’s delay in dealing with her complaint.
45. The Council should provide us with evidence it has complied with the above actions.
46. The Council has updated its procedures to try to prevent a recurrence of the faults in this case. So, I am not recommending any service improvements.

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Decision

47. I find fault causing injustice. I consider that the Council’s offer for the injustice caused by the faults is suitable. I am therefore closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman