Summary: Miss E complained the Council failed to provide a suitable education to her daughter for two years. The school did not follow her Education, Health and Care Plan. It delayed finalising a review of the Plan, was poor in its communications and did not provide any alternative education for times her daughter was not able to attend school. We uphold the complaint because of delay, poor communications and some lack of alternative provision. These faults have caused Miss E and her daughter distress and uncertainty. The Council has agreed to my recommended remedies.

The complaint

1. The complainant (Miss E) complains:

• the Council failed to provide a suitable education for her daughter (X) for two years. The school did not follow her Education, Health and Care (EHC) Plan. Miss E provided many examples of this to the school. It agreed they could not meet X’s needs;
• after a July 2023 review of X’s EHC Plan, there was a delay of six months before sending a draft. And a final Plan had not been issued after a year, when the school held a new annual review. Miss E had still not received a final revised EHC Plan at the time of her complaint to the Ombudsman;
• the Council was poor in its communications;
• the Council failed to provide any alternative education when X was unable to attend school, or from the start of the September 2024 term;
• there was a delay in consulting schools;
• the Council’s stage 2 complaint response contradicted its stage 1 response about what consultations it had made. So Miss E did not know what the Council was doing.

2. Miss E says both she and X have been affected by the Council’s fault. It had a detrimental effect on X’s health.

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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. 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 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. 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 only investigated matters from a year before Miss E’s complaint to us, for the reasons set out in paragraph 4. It was reasonable to have expected Miss E to complain earlier if she wanted us to consider matters from over two years ago.
10. I have not considered the consultation process, as ultimately that is a matter for the Tribunal (see paragraphs 5 & 6). I have however, in my remedy, considered the delay in providing appeal rights.

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How I considered this complaint

11. I considered evidence provided by Miss E and the Council as well as relevant law, policy and guidance.
12. I sent my draft decision to Miss E and the Council and considered their comments.

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What I found

Legal and administrative background

13. A child or young person with special educational needs may have an 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. 

Maintaining the EHC Plan

14. 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)
15. 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

16. 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) Case law found councils must issue the final amended EHC Plan within a further eight weeks.

Key-stage transfer reviews

17. A council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. One of the key-stage transfers is between primary school and secondary school

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. 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)

What happened

20. The information below is a summary of relevant events, and does not include everything that happened during this period.

Background

21. X is a child with special educational needs (SEN) with an EHC Plan. In the time before this complaint considers she had transferred to a special school. The Council had completed the last review of X’s EHC Plan in October 2022.

The EHC Plan review process

22. In May 2023 Miss E says she requested an emergency review of X’s EHC Plan, including that X be moved to a school more suited to her needs. In July X’s then school held a meeting to review her EHC Plan. The record of the review meeting noted Miss E’s view that it would be best for X to move to a school more suited to her needs.
23. In August the Council agreed to amend X’s EHC Plan.
24. In September Miss E chased an update. She noted again X’s needs were not being met in the school.
25. In December 2023 Miss E emailed a manager noting X’s needs were not being met in the school. She noted the possibility of alternative provision or education out of school. But she could not move forward until she knew what was in the revised EHC Plan.
26. The Council sent Miss E a draft amended EHC Plan in mid-January 2024. She provided her comments by the end of January. Miss E chased a response in February, March, April, May and June.
27. In May Miss E removed X from the school. She says this was “due to safeguarding concerns and unmet needs”. She wrote to the Council asking it to finalise the plan so she could seek amendments to it.
28. By July the Council had not finalised X’s previous EHC Plan. But the school held an annual review meeting. In response to this review Miss E noted her view the school could not meet X needs, she was not at school and there was no alternative provision in place.
29. In September the Council wrote to Miss E, stating it was going to amend X’s EHC Plan as a part of the key-stage transfer process (X would reach secondary school age the following year). And that information from the review and update reports would be considered as a part of the amendment.
30. In mid-September the Council issued a draft EHC Plan for X’s key-stage transfer.
31. In the meantime, the Council continued consulting with schools for X to attend from September. There was no final EHC Plan issued from either review by the time X started at a new school at the end of September.
32. In early October an officer advised Miss E she was now working on X’s EHC Plan. The Council sent an amended draft EHC Plan in October 2024, as a part of the key-stage transfer process.
33. The Council says it did not issue a final EHC Plan as it was in the key-stage transfer process, so was aiming to send a final EHC Plan within the timescales for national naming day on 15 February 2025. In response to my enquires the Council accepted it should have sent out a final EHC Plan in September 2024. It acknowledged that was fault and apologised for the delay, confusion and frustration this caused.
34. Miss E says she received a revised EHC Plan on 20 February 2025. She says it named the school X was by then attending, so she has no reason to appeal.

After X stopped attending school

35. Towards the end of May 2024 Miss E removed X from the school due to safeguarding issues and her concerns about unmet needs.
36. The Council’s complaint response advised it understood Miss E had removed X from school for safety reasons. But the place remained available and it was not aware of an issue with the school not being able to meet X’s needs or stopping her attending. It was satisfied the school had support and provision in place to ensure X was kept as safe as possible in school. Its officer worked closely with the school to ensure concerns were raised and the school had shown it had support in place, including ensuring Miss E’s concerns around X’s safety were taken seriously.
37. In September Miss E was in discussions with the Council’s officer about a possible placement. The officer advised Miss E that the Council continued to have X on the roll of her last school, so that it would continue to provide work at home. Miss E responded to say the school had advised it was no longer responsible for X’s education as it could not meet her needs. It was no longer doing welfare checks. The officer responded to advise the school should still be checking regularly. The officer said she would remind the school.

The Council’s complaint responses about consultations

38. The Council’s stage one complaint response advised Miss E the Council completed its consultation by 21 March 2024. Miss E’s preferred school was not able to offer a place. The Council had made new consultations and was awaiting responses. It would contact Miss E when it had received responses.
39. The Council’s response at stage two of its complaints procedure (sent around a month after its stage one response) confirmed Miss E’s preferred school was not able to offer a place. It accepted the Council delayed in consulting at that time. But when it had completed its full assessment, it could carry out new consultations through the review process.

Was there fault by the Council?

40. We expect councils to follow the statutory timescales set out in the law and Code (see paragraph 16) which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
41. The Council has accepted there was fault in this case. It is required by law to produce a final EHC plan within 12 weeks of an annual review. It should have done this by 30 September 2023 (12 weeks after the review meeting). It did not send Miss E a final review until 20 February 2025. That is a delay of over 16 and a half months.
42. During that time the Council wrongly did not finalise one review and instead moved to a new review, due to X’s upcoming phase transfer. I agree with its complaint response that to not conclude the earlier review was fault.
43. I also uphold Miss E’s complaint about poor communications. The record shows Miss E was chasing a response about when she could expect to hear from the Council. She ended up contacting a manager when she had not received a response. While I accept that there may have been little news, the Council should have kept in touch with Miss E at regular intervals.
44. At the July 2023 review Miss E said X’s school could not meet her needs. She repeated this view several times, and in December mentioned other options such as education out of school or alternative provision. But she did not specifically name any part of X’s EHC Plan the school was not providing. The school told the Council it could meet X’s needs. I cannot say whether the school was providing X with the full contents of her EHC Plan. But my decision is it was fault for the Council to not enquire further with Miss E about what, in her view, were the needs the school could not meet. It missed several opportunities to do this.
45. The Council was aware Miss E had decided that X should not attend the school from May 2024. I cannot say whether this meant the Council had a duty to provide alternative provision. That is because I cannot say, even on the balance of probabilities, whether it was reasonably practicable for X to access the school, so making it available and accessible to her (see paragraph 18 and 19). So I cannot uphold this part of the complaint.
46. In September 2024, despite not having a finalised new EHC Plan, X started at a new school. But Miss E notes that for the first few weeks of term, before X started, the Council had not put in place anything for X. I can see from the Council’s records its officer believed the school was providing work from home. Miss E advised it that was wrong. On this occasion, my decision is I can say, more likely than not, there was some fault here, as it seems by that time, the Council had agreed the school was not suitable for X. So it should have done more to ensure education was available (under its Section 19 duties) for X during this transitional period. My decision is to have not done so was fault.
47. I agree with Miss E that the Council’s complaint responses provide contradictory accounts of the Council’s consultation with schools and my decision is that was fault.

Injustice

48. As there is fault in this complaint, I have to consider the injustice caused to Miss E and X and recommend a remedy. Miss E and X have experienced avoidable uncertainty and distress.
49. In making my recommendation, I am taking account that the delay meant Miss E could not appeal, including about the school X moved to in September 2024. Against that, I need to take account that Miss E did not appeal the EHC Plan when it was issued, so limiting the injustice from the delayed appeal rights.
50. But there was avoidable uncertainty for X in an important, key-stage transfer, year. Miss E was put to time and trouble pursuing this matter.
51. I am not making any recommendations around loss of SEN provision from the delay. To do so would stray into the SEND Tribunal's remit in trying to decide what the provision should/would have been but for the delay. If a child’s SEN had been disadvantaged by any delay, we would expect the EHC Plan, when issued, to reflect their needs at that stage (so it will take account of the impact of any delay in SEN provision). If it does not, then the Plan is appealable.

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Agreed action

52. Within a month of my final decision, the Council has agreed to my recommendations to:

• apologise to Miss E. 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 Miss E £1650 for the delays in finalising X’s EHC Plan. She should use this payment for X’s educational benefit as she sees fit;
• pay Miss E £400 for not providing X with any provision in September 2024 in the weeks before she started at her new school. She should use this payment for X’s educational benefit as she sees fit;
• pay Miss E £500 to recognise the uncertainty, her avoidable distress and frustration caused by the delay, not contacting her about her view about the school not meeting X’s needs, poor communications (including the complaint responses) and the delayed appeal rights.

53. The Council should provide us with evidence it has complied with the above actions.
54. Since the time this investigation considers, the Department of Education has issued an improvement notice to the Council to take steps to improve its special educational needs and disabilities services. So I am not making any recommendations for service improvements.

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Final decision

55. My decision is I find fault causing injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman