Summary: Mrs X complained the Council failed to complete her son, Y’s, Education, Health and Care Plan annual review within the statutory timeframe and to follow the SEND Tribunal’s order requiring amendments to his Plan. She also complained Y has not received the support in his EHC Plan. We found fault by the Council on all matters. We recommend the Council apologise to Mrs X and Y and make payments in recognition of the injustice caused to them.

The complaint

1. Mrs X complained about the Council’s handling of her son Y’s, Education Health and Care (EHC) Plan and his special educational needs provision. She states the Council did not:
1. complete the annual review of Y’s EHC Plan within the statutory timeframe.
2. follow the SEND Tribunal’s order requiring amendments to Y’s ECH Plan.
3. put in place the support in Y’s EHC Plan including support recommended by its Educational Psychologist (EP) in March 2024.
2. Mrs X states the Council’s actions have negatively impacted Y’s education and caused his mental health to decline significantly. It has also caused her distress, financial hardship and put her to avoidable time and trouble.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person, if the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
9. 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)
10. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
11. 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)
12. 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

13. I have investigated matters from June 2023 to December 2024, when our investigation began. I have not investigated matters which occurred after we began our investigation.
14. I have not investigated Mrs X concerns the Council has not provided Y with provision in his EHC Plan between June 2023 and May 2024. This is because of the restrictions set out in paragraphs 4,5,6,7 and 8.
15. I have not investigated matters we considered as part of our investigations into Mrs X’s previous complaints to us.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council and relevant law, policy and guidance.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

18. 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. 
19. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 

Maintaining the ECH Plan

20. 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)  
21. 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. 

Reviewing EHC Plans

22. 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) 
23. 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.
24. 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.
25. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this. In all cases, where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.

What happened

26. What follows is a summary of the key events. It does not show everything that happened.
27. Y has special educational needs and some health conditions. He has an ECH Plan.
28. In 2023 Mrs X complained to the Ombudsman about delay by the Council in considering her request for a re-assessment of Y’s needs, completing the annual review of his EHC Plan and failure to issue a final EHC Plan. We found fault by the Council and made recommendations including that it issue Y with a final EHC Plan.
29. In June 2023 the Council issued Y with a final EHC Plan.
30. Mrs X was unhappy with the contents of Y’s EHC Plan. She appealed to the Tribunal about Sections B and F of the plan.
31. In September Y began his post-16 college placement at College 1. Y’s mental health began to decline after his placement began.
32. College 1 refused to provide Y with support for his GCSE Maths and English resits. As a result Y stopped attending his English class. Mrs X told the Council. Mrs X had to provide support to help Y with his resits and paid £500 for exam tuition support.
33. In October the Council told the Tribunal it would bring forward Y’s EHC Plan annual review, which was due on 28 February 2024. This was in response to Mrs X’s concerns about Y’s provision and the impact this was having on his mental health.
34. However the Council did not bring forward Y’s EHC Plan annual review nor did it complete the review by 28 February 2024.
35. On 28 March 2024 the Council held Y’s EHC Plan review meeting, During the meeting Y’s placement for September 2024 was discussed including arranging taster days for a level 3 course. The Council also agreed to look for apprenticeships for him.
36. Also on 28 March the Council’s appointed Educational Psychologist (EP) issued a report following her assessment of Y. The report said:
• Y could access a level 3 course with appropriate support and adjustments.
• Y needs focused interventions to reduce his anxiety around completing more formal academic tasks and exams.
• Y needs extra support to develop inferencing and analysing skills. These skills are part of the GCSE English curriculum. Y needs to gain his GCSE English to move on to a level 3 college course.
37. In April the Council agreed it needed to amend Y’s EHC Plan. It said it would offer Y a bespoke Education Other than at School (EOTAS) package, if he did not do a level 3 college course.
38. On 28 April the Tribunal heard Mrs X’s appeal.
39. In May Mrs X provided details of an EOTAS package for Y, as the Council had not done so.
40. The Council refused Mrs X’s proposed EOTAS package. Instead it offered Y an EOTAS package consisting of English tuition, a low-level IT course and a photography course. It did not provide details about the courses.
41. Meanwhile Mrs X applied for a personal budget for Y to receive tuition for exam practice. It refused the request.
42. On 23 May the SEND Tribunal issued its decision on Mrs X’s appeal, which it allowed in part. The decision said:
• Y’s EHC Plan failed to meet the SEND Code of Practice guidance requiring it to be clear, concise, understandable and accessible. The Council will completely rewrite Sections B and F in a revised EHC Plan for Y.
• The rewrite of Sections B and F will include the changes specified in the order. The changes clarified the special educational provision Y required. This included exposure to exam papers and practice building up to exams, having 1:1 support from a designated and appropriately qualified tutor and two hours of English tutoring from a specialist tutor per week.
• The rewrite should also include removing teaching first practices from the Plan.
• The decision did not say Y needed mental health support or counselling. However it did say the Council should further consider this matter with Y and Mrs X.
43. In late May the Council and College 1 met and decided to withdraw Y’s placement because he was failing his course. This left Y without a placement for September.
44. Also in May Y was diagnosed with college related stress. A referral was made to the Children Adolescent Mental Health Service (CAMHS). Mrs X told the Council.
45. In June Y took his GCSE English. Y failed the exam. Mrs X states this was because he did not receive the required provision to support his exam resit.
46. In August Y’s CAMHS support stopped because his placement at College 1 had ended.
47. Meanwhile Mrs X found Y a new placement at College 2. She asked the Council to provide a transition plan for Y, but it did not do so.
48. In September Y started College 2 to study a level 3 course. However Y struggled as he did not receive the support set out in the Tribunal Order. The Council told Mrs X it was tendering for a provider to deliver Y’s English provision.
49. On 20 September the Council issued an amended final EHC Plan for Y. Mrs X disagreed with the Plan. The Council told her she did not have a right of appeal as the Plan was issued following the Tribunal’s decision.
50. In late September Y was diagnosed with college related stress again and he stopped going to college. He was also prescribed antidepressants. Mrs X told the Council.
51. In October Mrs Y began to fund private counselling session for Y costing £50 per session. She did so because of the continued decline in Y’s mental health and because his CAMHS sessions were yet to be reinstated.
52. In December Mrs X asked the Council to explain why it was taking so long to arrange Y’s English provision. She said Y was failing his course because he was not getting the support in his EHC Plan.

Mrs X’s complaint

53. In July 2024 Mrs X complained to the Council. She complained the Council failed to:
• comply with the SEND Tribunal order and to amend Y’s EHC Plan within five weeks of its order.
• meet the statutory timeframe for completing the annual review of Y’s EHC Plan or issue an outcome letter.
• amend Y’s EHC Plan to reflect the support its EP recommended. As a result Y has not received this support.
• provide the provision in Y’s current EHC Plan.
• include her in a meeting between it and Y’s college in May 2024.
• approve her request for a Personal Budget to secure the support Y needed for his GCSE English resit.
54. The Council replied in August. It said:
• The review of Y’s placement at College 1 found he was struggling. An EOTAS package can be discussed however Y is still on roll at College 1.
• A meeting to discuss Y’s case was arranged for late July however Mrs X cancelled. It will rearrange this if Mrs X would like it to do so.
55. Unhappy Mrs X escalated her complaint.
56. The Council replied in September. It said:
• it apologised for the delay in issuing Y’s EHC Plan annual review, implementing the Tribunal’s order and issuing a final Plan.
• a draft EHC Plan will be issued today.
• it offers English support via its Individual Package of Education Support (IPES) process.
• it is for Y’s college to provide the SEN provision he needs.
• a Senior Clinician has been checking in on Y over the summer break and a referral has been made to the Progression Team to support a move to Adult Services.
57. Correspondence between Mrs X and the Council continued. In October the Council told Mrs X:
• it has issued Y’s final amended EHC Plan following the SEND Tribunal’s decision. As the Plan was issued following her appeal to the Tribunal, she does not have a right of appeal.
• delays in issuing Y’s final EHC Plan were due to Mrs X asking for amendments.
• Y’s Plan does not contain any provision for mental health needs or counselling as there was no evidence showing he needed such provision.
• it acknowledged Y was signed off from college and said an EOTAS package could be explored.
58. Mrs X replied saying she was not challenging the Tribunal’s decision and is complaining about the Council’s failure to implement its decision. She also refuted the delay in issuing a final EHC Plan for Y was due to her requesting amendments.
59. Mrs X remained unhappy with the Council’s actions and asked the Ombudsman to investigate. We asked the Council for information. In response it provided copies of key documents. It told us it has complied with the Tribunal’s order and provided an annotated copy of Y’s EHC Plan showing its compliance.

Finding

EHC Plan annual review

60. The regulations require the Council to complete an annual review of a child’s EHC Plan every 12 months. The Council needed to complete Y’s EHC Plan annual review by 28 February 2024. However it did not begin the annual review of Y’s EHC Plan until 28 March 2024. This is fault.
61. The Council should have told Mrs X whether it would maintain, amend or cease Y’s plan within four weeks of the meeting. It did not do so. This is fault.
62. The Council did not issue Y with a final plan until 11 September 2024. This is a significant delay of nearly seven months. This is fault.
63. The identified fault means Mrs X was caused distress, frustration and put to avoidable time and trouble in pursuing this matter.
64. Additionally the delay meant the Plan issued after Y's annual review was the same Plan it issued following Mrs X’s appeal (about the EHC Plan issued to Y in June 2023) to the Tribunal. For this reason Mrs X has been denied her right to appeal the plan issued following Y’s annual review.
65. Furthermore Y’s amended EHC Plan should have been issued while Mrs X’s appeal to the Tribunal was still ongoing. If the plan had been issued within the statutory timescales and Mrs X disagreed with parts of it, she could have asked the Tribunal to have considered the new plan as the working document in her appeal. Mrs X was denied this opportunity by the Council’s delay.
66. I also note the Council told the Tribunal it would bring forward Y’s annual review in response to Mrs X’s concerns about Y’s provision once he began his placement at College 1. I consider its failure to bring forward the annual review compounds the fault and injustice I have already identified.

Delay in complying with the Tribunal order

67. The Tribunal issued its order on 23 May 2024. The Council had five weeks from the date of the order to amend Y’s EHC Plan and so this should have been done by 27 June 2024.
68. The Council did not issue Y’s amended EHC Plan until 11 September 2024. This is a delay of 11 weeks. This is fault.
69. I have cross referenced the Tribunal’s order with Y’s final amended EHC Plan. I am satisfied Y’s EHC Plan includes the changes specified in the order.
70. However the order also required the Council to completely rewrite sections B and F of Y’s plan. The Council has not done so and has instead inserted or removed the changes specified in the order. The Council should have complied with the order and its failure to do so is fault.

Failure to provide support in Y’s EHC Plan

71. We cannot investigate the lack of special educational provision received by Y from June 2023 to May 2024 for the reasons explained in paragraphs 4-8 above. The lack of special educational provision during this period was connected to matters Mrs X appealed to the Tribunal about.
72. However the final plan issued in September 2024, was also the plan issued following Y’s annual review due in February 2024. So I can consider if the support in the Plan would have been put in place sooner if there had been no delay in the annual review process.
73. Y’s final plan included amendments to Sections B and F which considered the information gathered as part of Y’s annual review, including the recommendations made by its Educational Psychologist in March 2024. It also accepted in May 2024 that Y’s Plan needed to be amended. Therefore, I consider that, on the balance of probabilities, the provision set out in the final plan would have been put in place sooner if there had been no delay in the annual review process.
74. As a result, Y missed out on the provision in his plan between February 2024 and September 2024, when the plan was issued. During this period Y continued to struggle with his studies and his mental health deteriorated, as evidence in his diagnosis of college related stress and referral to CAMHS. Y failed his English GCSE resit and College 1 withdrew his placement (which meant he also lost his CAMHS provision). This is a significant injustice.
75. During this period Mrs X was put to the avoidable time and trouble of pursuing provision for Y. She also supported Y herself and found and paid for tuition. This is injustice.
76. Y’s final EHC Plan said he should receive transition planning if his placement changed. Y began a new placement in September 2024 but did not receive any transition support, despite Mrs X asking the Council about this before the placement began. This is fault. As a result Y did not receive the support he needed to start his new placement. This caused him distress as shown in his second diagnosis of college related stress and being prescribed antidepressants. This is injustice.
77. Y’s final plan was issued in September 2024. The plan says Y would receive support for his English GCSE resit including exposure to exam papers and practice building up to exams. It also said he would have 1:1 support from an appropriately qualified tutor and two hours of tutoring from a specialist tutor. Y has not received this support. As a result Y missed out provision he is entitled to. This has negatively impacted his studies and his mental health. Mrs X funded provision for Y including tuition and counselling to help him deal with the impact of not receiving the support he is entitled to. She also took time off work to support him. This is injustice.
78. I note the Tribunal’s order stated the Council should further consider if Y requires support with his mental health. Mrs X told the Council about Y’s declining mental health including his diagnosis of college related stress. I have seen nothing to demonstrate the Council consider this matter during the period I have investigated. This is fault.

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Agreed Action

79. Within one month of my final decision the Council will take the following action:
• Apologise to Mrs X and Y for the identified fault. 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.
• Pay Mrs X £4800 in recognition of the injustice caused by the identified fault. This comprises of:
1. £300 to acknowledge the distress, worry, avoidable time and trouble caused to her in pursuing the matters complained about and denying her of her right to appeal to the Tribunal.
2. £700 in recognition of the delay in issuing Y with a final EHC Plan. This remedy covers the period from 28 February 2024, when Y’s annual review should have been completed, and September 2024 when a final plan was issued. It also covers the delay by the Council in issuing a final plan following the Tribunal’s order.
3. £2500 in recognition of the special educational provision Y missed between March 2024 and December 2024. I have taken into account that Y missed support at a pivotal point in his post-16 education and the costs incurred by Mrs X in sourcing tuition herself.
4. £1300 in recognition of the impact on Y of his missed educational provision. I have considered the cost incurred by Mrs X funding counselling to help Y address the deterioration in his mental health.
80. I note we have made service improvement recommendations on previous complaints of a similar nature and so I do not consider it is necessary to make further recommendations currently.
81. The Council should provide us with evidence it has complied with the above actions.

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Decision

82. I have completed my investigation and found fault by the Council which caused injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman