Summary: Miss B complained that for several years the Council failed to ensure her son received a suitable education. We upheld the complaint, finding the Council failed to have enough oversight of her son’s case. It also did not properly review his Education, Health and Care Plan during years 10 and 11 of his education. This contributed to Miss B’s son missing education provision at a critical time and caused distress for Miss B. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy this injustice and improve its service to try and prevent a repeat.

The complaint

1. Miss B complained that for several years the Council failed to ensure that her son, C, received a suitable education. C has special educational needs and from June 2022 had an Education, Health and Care (EHC) Plan. But Miss B said he never received the education set out in his Plan.
2. Miss B said as a result C had not received a full-time education, or education suitable to meet his needs. This resulted in his isolation from his peers and contributed to him disengaging during Year 11 of his education.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) We can investigate how the Council has secured educational provision set out in Section F of the young person’s Education, Health and Care Plan. Because in these cases, schools are acting on behalf of the council.
7. 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)
8. 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.
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I did and did not investigate

11. I investigated events between September 2022 and July 2024; years 10 and 11 of C’s education.
12. I noted Miss B considered C should have had more support for his special educational needs before September 2022. However, I found her complaint about events before this time was late. I considered there were no special reasons justifying investigation (see also paragraph 5).
13. In addition, much of Miss B’s complaint about events before this time focused on dissatisfaction with C’s school. I could not investigate how C’s school delivered education to him, except in the circumstances explained in paragraph 6. For most of this time, C did not have an EHC Plan (he received his first Plan in June 2022). So, for this reason also most of Miss B’s complaint about events before September 2022 was outside my power to investigate.
14. As Miss B did not contact us until September 2024, some of her complaint was still late. However, I considered there were special reasons which justified investigation back to September 2022.
15. The key facts set out below explain the Council considered amending C’s EHC Plan around September 2022. It knew then Miss B was unhappy with C’s education provision and she wanted or expected the Council to act on that dissatisfaction. But the Council communicated poorly in response. I did not think it fair to penalise Miss B for not making her complaint sooner, where the Council had not explained its position at the time.
16. The other matter I needed to consider that impacted the scope of my investigation was whether Miss B could have appealed to the Tribunal at any point. The facts show that during the period under investigation she had one opportunity to do so, in July 2023, when the Council issued C with a final EHC Plan.
17. However, almost immediately after issue, C’s Plan was again under review. The Council began consulting Miss B on proposed changes. I considered it was not reasonable to expect Miss B to have appealed given the Council had invited her to propose changes to the Plan. And the Council would have to consider the changes Miss B wanted as part of the review process.

Back to top

How I considered this complaint

18. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
19. I gave Miss B and the Council a chance to comment on a draft version of this decision statement. I took account of any response they made, before finalising the content of the statement.

Back to top

What I found

Legal considerations

20. 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 arrangements to meet them. The EHC Plan has different sections. Section F sets out the education provision the child will receive. Section I names the child’s education setting or the type of education setting the child needs. We cannot direct changes these parts of an EHC Plan. Only the Tribunal or the council can do this. 
21. 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 councils owe this duty personally to the child and cannot delegate it. This means if a council asks another organisation to make provision, which then fails to do so, the council remains liable. (see R v London Borough of Harrow ex parte M [1997] ELR 62 and R v North Tyneside Borough Council [2010] EWCA Civ 135)  
22. 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. But councils should be able to show they have gathered information to fulfil their legal duty. So, we expect them to: 

• check the special educational provision is in place when issuing a new or amended EHC Plan or when there is a change in educational setting; and
• quickly investigate and act on complaints or any concerns raised about provision not being in place. 

23. In addition, councils must arrange for a review of an EHC Plan at least once a year. A 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 education setting. A review meeting must then take place. The review procedure only completes when the council issues a decision to amend, maintain or end the EHC Plan. This must happen within four weeks of the meeting (see Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). 
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. With this it should enclose details of 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). This should also happen within four weeks of the date of the review meeting. Councils then have eight weeks to issue a final amended EHC Plan.
25. A parent can appeal to the Tribunal any decision to end an EHC Plan. They can also appeal the content of a final amended EHC Plan.

The key facts

26. In September 2022 C was enrolled in a mainstream secondary school beginning Year 10 of their education. They had an EHC Plan because of their special educational needs. The Plan set out what provision C should receive in Section F. C was not regularly attending school and had not regularly attended since they began their secondary education in Year 7. Miss B says this was because of their social, emotional and mental health needs.
27. The Council had held an early emergency review of C’s Plan at the end of Year 9, in July 2022. And at the start of Year 10 (September 2022) it began consulting specialist schools to see if they had places for C. It consulted three schools, one of which said it could not meet C’s needs. It did not provide me a record of any response it received from the other two schools.
28. In October 2022 the Council sent notice to Miss B that it would amend C’s EHC Plan. Later that month it sent her a draft version of an amended Plan. But it did not go on to issue a final plan.
29. Its next record dated from March 2023, when it recorded contact from Miss B expressing dissatisfaction with the provision C received. He was still not attending school.
30. Meanwhile, C received around four hours a week home tuition. He also attended a one-to-one tutoring course for a particular vocation. This was for five or ten hours a week.
31. In June 2023, the Council issued a final EHC Plan. The following month it held another review.
32. In September 2023 it then issued a further revised draft EHC Plan. The copy it sent me does not identify what the proposed amendments were. The Plan continued to name the mainstream school. It said C would receive eight hours a week tuition provided by the school and would continue attending the vocational tuition for two days a week.
33. Miss B asked for amendments to the Plan. On the form provided by the Council she also ticked a box asking for a meeting with the Council. However, the Council did not go on to arrange a meeting.
34. In December 2023 Miss B sent a further email asking for changes to the EHC Plan. And around the same time the school sent an email to the Council highlighting concerns with C’s engagement. Because around this time C experienced a decline in their mental health. They stopped attending their vocational tuition. The school also cancelled the tuition it arranged for C as he no longer engaged with it.
35. In December 2023 a Council officer asked a Case Management Panel for advice. The Council agreed to commission a specialist service to help C “build self-esteem and promote re-engagement” with education.
36. In January 2024 the Council SEND service learnt C would not engage with the specialist service. His case again went to its Case Management Panel and the Council noted “the school does not know what to do”. The Council asked the school to comment on what work it had done for C’s post-16 transition.
37. In February 2024 the Council held a meeting with the school to discuss C’s case and in March considered identifying a personal assistant for C. It also received confirmation from the school that all tuition to C had stopped because of his non-engagement.
38. During April 2024 the Council had a series of discussions with Miss B about C and recorded her saying that “education is the last thing on his mind”. C consistently refused to engage with Council officers to discuss his education.
39. In July 2024 there was a further review of C’s EHC Plan. This was shortly before his education at secondary school was due to end. There had been discussion C might take a college course to pursue the vocation for which he received one-to-one tuition. But this was no longer viable as C did not have the basic education qualifications needed.
40. Since this time the Council has discussed ending C’s EHC Plan and issued two more draft versions of the Plan. There has also been involvement from its Children’s Services and discussions around C attending education settings.
41. Miss B began her complaint to the Council in June 2024. In its replies, the Council recognised communicating poorly with Miss B at times but otherwise defended its actions. It said that after it issued C with an EHC Plan in June 2022 it had encouraged his school to make reasonable adjustments for his special educational needs. And that it had approved extra funding for his case and it had tried specialist coaching (the service commissioned in December 2023).

My findings

The 2022 / 2023 academic year (Year 10)

42. I begin my findings by considering the position in September 2022. The Council had recently reviewed C’s EHC Plan and knew C was not attending school. The only education he had was from alternative provision arranged by his school. The Council must have considered this did not meet his needs, because it began consultation with specialist schools.
43. But the Council then stopped taking an active interest in C’s case for many months. There is no record about what happened to two of the specialist school consultations nor why the Council stopped its search for specialist provision after September 2022. There was no record of why the Council did not proceed to issue C with a new EHC Plan identifying he needed specialist provision given it began that consultation.
44. Further, there was no record of the Council checking in with the school or Miss B to gain an update on C’s attendance at school or with the alternative provision. There was also no record the Council checked again during C’s Year 10 if C was receiving provision in line with his Plan nor if this was sufficient. This was despite knowing such provision was not full-time and clearly not what it foresaw when it drew up his EHC Plan, which referred to C’s reintegration and attendance at school.
45. I explained above that we do not expect councils to micro-manage education provision set out in EHC Plans. But we expect the Council to act if it knows a child is not receiving the provision set out in their Plan, nor attending their education setting. And while it can reasonably delegate a school to arrange alternative provision for a child, the Council must check that such provision meets needs and reflects the contents of a Plan. It must also consider that if a child has not attended school for a long time and there is no reintegration plan in place (or working) what else it should do. Because it must always look to ensure a child gets the provision in their Plan. Or, if it is the case the Plan is no longer fit for purpose, then it must amend it or even reassess the child’s needs. The Council showed none of that oversight here.
46. And consistent with this lack of oversight of C’s case, the Council also failed to follow the annual review procedure. It did not confirm its intent to amend C’s Plan with four weeks of the July 2022 review. It failed to send Miss B amendments within four weeks. It failed to issue an amended final plan within 12 weeks of the review, instead taking 12 months to do so.
47. In summary therefore during the 2022/23 academic year, the Council did not adequately monitor C’s provision and did not properly review that provision. This was despite knowing of C’s long-term inability to engage with schooling. While I recognise the limited records of Miss B pressing it to act in this time, the Council still knew of her dissatisfaction at C’s continued enrolment at a school he did not attend. The onus was on the Council to tell Miss B what it was doing in response. It did not do that.
48. So, the Council was at fault for its lack of oversight of C’s case and its communications during Year 10 of his education.

The 2023 / 24 academic year (Year 11)

49. During the beginning of the following year, I find the Council continued to not show enough interest in C’s education. In September 2023, as over the previous 12 months, the Council knew C was not receiving education provision in line with his Plan. But again, the Council failed to try and remedy that situation. This was despite knowing C was also now rapidly approaching the end of his compulsory school education.
50. And once again, it failed to ensure that it kept to the review procedure timetable. It did not confirm its intent to amend C’s Plan with four weeks of the July 2023 review. It failed to send Miss B amendments within four weeks. It failed to issue an amended final plan within 12 weeks of the review. Ultimately, it failed to issue C with a revised Plan at all following the July 2023 review.
51. So, during the 2023/24 academic year also the Council was at fault for its lack of oversight of C’s case.
52. That said, I recognise from December 2023 the Council began to show more engagement with C’s case. But this only followed a significant decline in C’s mental health. Which in turn coincided with his disengagement from all interventions including both home tuition and vocational one-to-one tuition.
53. The Council tried to engage C with some coaching or mentoring, but without success. C also would not engage with Council officers wanting to talk to him about future education choices. While these efforts did not mitigate the earlier fault, I had to give some weight to them when thinking about the impact of the fault on Miss B and C. Even if, as Miss B explained to me, she believed the Council only acted to support C because matters had reached a crisis point.

The injustice caused to Miss B and C

54. I considered next if the Council’s fault summarised in paragraphs 48 and 51 had caused injustice to Miss B and C. I began by considering the impact on C’s education provision.
55. I found that for the four terms between September 2022 to December 2023, C received some education provision. However, it was not full-time and not as set out in their Plan. Had the Council kept a proper oversight of C’s case, I could not say for sure what it would have done to rectify this. But it would not have tolerated that situation. It would have looked for a way to re-engage C with full-time education. I accepted C’s needs would not have made this straightforward. But the evidence showed C had more engagement with education during Year 10. So, there was no reason for me to assume that full-time education, suitably differentiated to meet his needs, was beyond him. I therefore found C had suffered a loss of education provision because of the Council’s fault.
56. I went on to recommend action I wanted the Council to take to remedy this injustice, including making a symbolic payment to Miss B for C’s benefit. In doing I considered the Ombudsman’s published guidance on remedies. This sets out that we will apply a tariff for such lost provision, which has a maximum amount of £2400 per term where a child is without all education. I reduced this taking account that C received some provision. But I had to also take account it was not full-time and that this was a crucial phase in C’s education. So, I decided a sum of £1250 a term appropriate for the four terms between September 2022 and December 2023.
57. I recommended a payment based on a lower tariff of £750 per term for the remaining two terms of the 2023/24 academic year. This was after I gave weight to the work undertaken by the Council summarised in paragraph 53. While I had to recognise the efforts of its officers in this time, C still remained without suitable education provision. And while C had not engaged with those efforts, I considered his non-engagement likely resulted, at least in part, by the Council failing to attempt such engagement with him sooner. I noted Mrs B’s views here. She considered C’s lack of engagement arose from the Council’s lack of attention given to meeting his needs sooner. It left him feeling ignored. I found this view understandable and credible.
58. In addition, I found the fault by the Council had caused injustice to Miss B. She experienced distress because of the Council not engaging adequately with her son’s circumstances. She also lost appeal rights because of the Council’s delays in completing reviews of C’s Plan. I therefore recommended a further symbolic payment to recognise this.

Back to top

Agreed Action

59. The Council has accepted the findings set out above, and recommendations I made in my draft decision statement. It has agreed, that within 20 working days of this decision, it will:
1. provide Miss B with an apology taking account of the advice set out in paragraph 60 below;
2. make a symbolic payment to Miss B of £7000. This will comprise £6500 for K’s lost education provision (see paragraphs 56 and 57) and £500 for Miss B’s distress and loss of appeal rights (see paragraph 58).
60. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology agreed.
61. I did not recommend any specific action concerning C’s EHC Plan. I considered it clearly worrying that C remained without an up-to-date EHC Plan or else the Council had not confirmed if it would end his Plan (a decision carrying a right of appeal). I encouraged the Council to make its intentions known as soon as practicable. But I knew that discussion between Miss B and the Council (and hopefully C) had taken place regularly in recent months and remained ongoing. And as I had not investigated the service C received after September 2024, I considered it would be unhelpful for me to recommend specific action without knowing all relevant facts.
62. But I did consider what action the Council could take to avoid a repeat of the fault found in this case. It has agreed to further recommendations here. So, within three months of this decision, it will:
1. remind relevant staff of the importance of adhering to the statutory timescales for completing annual reviews, including when it issues notice that it intends to amend a Plan, and when it should then issue a final amended Plan. The reminder will be in person (for example at a staff briefing, team meeting or pre-arranged training event) and in writing;
2. alongside this reminder, the Council will review its current data management to ensure that it can identify when it has failed to keep to the statutory review timescales. It will ensure that managers know of such cases and can intervene with caseworkers to ensure issue of final amended EHC Plans within time;
3. also remind relevant staff of the importance of ensuring oversight of cases where they know children with EHC Plans are not attending the school named in their plan and / or not receiving education in line with their plan. This will take account of the Ombudsman’s position on such cases set out above and in our focus report “Out of school, out of sight?” published in July 2022 which is available on our website Focus Reports and Good Practice Guides - Local Government and Social Care Ombudsman. This briefing will also be in person and in writing;
4. alongside this reminder, the Council will review any existing procedure it has, or consider introducing a new procedure, that provides advice to officers on the actions they should take when they know a child with an EHC Plan is not in the school named in their plan and / or not receiving education in line with their plan.
63. The Council knows that we expect it to provide us with evidence that it has complied with these actions.

Back to top

Final Decision

64. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss B and C. The Council accepted these findings and agreed to take action to remedy that injustice and improve its service to help avoid a repeat. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman