Summary: Miss X complained about the Council’s handling of her son, Y’s education since 2022. The Council was at fault. It failed to ensure Y received some of his specialist provision outlined in his Education, Health and Care (EHC) Plan between September 2023 and October 2024 and delayed holding Y’s annual review and issuing the amended Plan. The Council agreed to make payments to acknowledge the impact this had on Y’s education and social development and for the distress and uncertainty caused to Miss X.

The complaint

1. Miss X complained about the Council’s handling of her son, Y’s education since 2022. Specifically she complained:
1. The Council failed to issue Y’s amended Education, Health and Care (EHC) Plan following an annual review in September 2022
2. Delayed holding the September 2023 annual review by seven months.
3. Failed to ensure Y received mentoring and Speech and Language provision as outlined in his EHC Plan when he moved to college in September 2023.
2. Miss X said the matter has caused distress, uncertainty and delayed appeal rights. It has also impacted on Y’s education and development.

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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. 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.
5. 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)
6. 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

7. I have investigated complaints b and c.
8. 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)
9. Y’s annual review was held in September 2022 and Miss X has complained the Council failed to issue the amended Plan following that review. Miss X was aware from January 2023 onwards the EHC Plan was late. However she did not complain to the Council until March 2024 and us until September 2024. Miss X’s complaint about events from 2022 (complaint a) is therefore late as it was reasonable for her to have complained to us much earlier about this.
10. I have investigated from September 2023 when Y began college and when the 2023 annual review was due.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. Miss 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

EHC Plan

13. 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.
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.
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.

What happened

18. Y is a young person with special educational needs including a diagnosis of autism and he has an EHC Plan. In September 2023 Y began attending a post-16 placement, college A. Y’s EHC Plan in place at the time was issued in September 2022. The specialist provision outlined in Y’s Plan included:
• One hour a week social skills group
• Support to develop his self-esteem
• Outreach mentoring for two hours each week
• Qualified staff to provide tuition and therapies
• Counselling and mentoring from staff trained in dealing with young people with complex needs to develop self-esteem
• Speech and language interventions
• 45 minute weekly sessions to develop his social communication skills, delivered at least half-termly by a qualified speech and language therapist
• Language and communication targets set up by a speech and language therapist
19. Y’s annual review was due in September 2023 however this did not take place and therefore Y began college with the EHC Plan issued in September 2022 which named his previous school setting.
20. Records show Miss X began raising concerns with the Council in September 2023 about some of his provision not being in place at the college, specifically mentoring. She also pointed out that Y had an out of date EHC Plan which was not amended following a review in 2022 and that the next review was due now but had not been arranged.
21. Miss X chased the Council again during October and November about a lack of mentoring for Y at College A. She also continued to point out that Y’s annual review was overdue. An email from a Council officer to Miss X said it would be for College A to request additional funding and it is for the college to provide the provision. It said Y’s previous school should have held the annual review and the officer said they would chase it up.
22. The matter appears to drift without any meaningful action until March 2024 when Miss X formally complained to the Council about both the lack of mentoring provision and failing to carry out annual reviews in line with the relevant law and guidance. Miss X also said other provision such as speech and language provision and small group work for Y’s self-esteem was not being provided. Miss X said she has had to pay for private mentoring, but this had stopped due to the cost.
23. The Council responded to Miss X at stage one of the complaints procedure in early April 2024. The Council said it now understood the annual review was arranged for the end of April 2024. It did not respond to Miss X’s concerns about the lack of provision but said the annual review would give her the opportunity to discuss this. Miss X escalated her complaint to stage two of the complaints procedure.
24. College A held Y’s annual review at the end of April 2024. Records of the review show Miss X raised concerns that Y was not receiving the full provision in the Plan, including the correct one to one support and mentoring which meant his development and progress had declined. The review records show the Council intended to remove Y’s mentoring provision from the EHC Plan going forward as it believed it was a social care need. The review records show the EHC Plan was to be amended.
25. The Council issued its stage two complaint response in May 2024. It said it expected schools to arrange and convene annual reviews and it said Y’s previous school failed to do so during 2023. It said following the review at College A it was processing Y’s amendments as a priority. With regards to Y’s mentoring provision it said that provision was specific to Y’s previous school setting and not something it expected College A to deliver. The Council said it was not clear what other aspects of Y’s EHC Plan was not being delivered.
26. Miss X remained unhappy and complained to us.
27. The Council issued Y’s amended EHC Plan following the April annual review in mid-October 2024. Records show Miss X had instructed solicitors to take legal action against the Council about a failure to deliver Y’s provision since the amended Plan was issued.

The Council’s response to us

28. The Council said Y received Speech and Language provision at College A which it funded. It has not provided any further evidence confirming this. Neither has the Council provided any evidence to show Y received mentoring provision or any of the group provision around his self-esteem and social communication.

My findings

Y’s provision

29. Y began attending College A in September 2023 with an outdated EHC Plan because the Council had not amended it following a previous annual review in 2022. However, that EHC Plan, although outdated remained a legal document and the Council remained responsibly for ensuring the provision outlined within it was delivered and in place. Miss X raised concerns as soon as Y began attending College A about mentoring not being in place. The Council said in its complaint response that mentoring was not something it expected College A to deliver. Given this, on balance, mentoring was not in place and Y did not receive it between September 2023 and October 2024 when Y’s Plan was amended. That was fault.
30. In her complaint to the Council in March 2024 Miss X raised concerns about other provision not being in place such as speech and language and the group work provision. I have not seen any evidence which shows Miss X raised these concerns prior to March 2024 and therefore, without knowledge of this we cannot hold the Council to account for the non-delivery of this provision prior to March. However, upon Miss X raising the concerns the Council should have investigated whether the provision was in place and if not, ensured it was. There is no evidence of any investigation or oversight and it has not provided us with any evidence showing the provision was delivered. It also did not adequately respond to it in its complaint response. The failure to carry out oversight was fault and on balance meant Y did not receive the provision in section F outlined in paragraph 18 between March and October 2024.
31. The above faults meant Y did not receive all of the provision in his Plan during the 2023/24 academic year and this continued into the next academic year until the Council issued the amended Plan. This impacted on Y’s academic and social development and caused Miss X distress.

Y’s annual review

32. Councils can delegate the annual reviews to schools and colleges but it remains responsible for ensuring they are held in a timely manner. Y’s annual review was due in September 2023, however it was not held until April 2024 which is a delay of seven months and fault.
33. Following the annual review in April 2024 the Council should have issued Y’s amended Plan by mid-July 2024. It did not issue it until October 2024 which was a delay of 13 weeks. This delayed Miss X’s appeal rights and meant Y remained with an outdated EHC Plan for much longer than necessary throughout the 2023/24 academic year.
34. During 2025 we have made recommendations to this Council to carry out actions and improvements following similar findings of fault. This includes the Council
• Carrying out a review with a view to implementing a system to monitor the delivery of provision in line with EHC Plans.
• Implementing a system to monitor the timeliness of annual reviews where it delegates the process to schools and colleges.
• Reminding its officers to take proactive action when issues relating to the lack of provision in line with an EHC Plan is brought to its attention.
• Reminding officers that provision in an EHC Plan cannot be changed without amending and issuing another final EHC Plan.

Given the above I have not made any further service improvement recommendations. We will monitor compliance of the above actions through our casework.

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Agreed action

35. Within one month of the final decision the Council agreed to take the following actions:
1. Apologise to Miss X and pay her a total of £350 to recognise the distress, uncertainty and delayed appeal rights caused by annual review delays and a failure to ensure Y received all of the specialist provision in line with his EHC Plan between September 2023 and October 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Miss X a total of £1550 to acknowledge Y’s loss of specialist provision in line with his EHC Plan between September 2023 and October 2024.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman