Summary: Mrs B complained about the way the Council dealt with her son, C’s education. The Council was at fault for failing to issue the Education, Health and Care plan within statutory timeframes, delaying in completing an annual review, failing to identify a post-16 placement for C within required timeframes, failing to provide provision set out in the plan and poor communication and complaint handling. This caused C to miss provision and Mrs B and C frustration, distress and uncertainty. The Council will apologise, complete the annual review and make payments to recognise the personal injustice caused.

The complaint

1. Mrs B complains about the way the Council dealt with her son, C’s education. She says the Council failed to:
1. send a final Education, Health and Care (EHC) plan within statutory timeframes;
2. complete an annual review within expected timeframes;
3. amend C’s EHC plan for his transfer to post 16 education;
4. provide provision named in the EHC plan;
5. provide a school placement;
6. complete actions from her complaint response;
7. reimburse her the same fuel costs that it reimburses its staff;
8. provide free school meal equivalent while no school place was provided;
9. respond to her about a financial payment it said it would consider as part of its complaint response; and
10. poorly communicated with her and delayed in responding to her complaint.
2. Mrs B says this has caused significant distress and has caused C to be without provision and has left secondary school with no qualifications and with gaps in his language development. She also says C has also been isolated from his peers. Mrs B says this has caused her significant distress. She says she is unable to work as she must provide the care and support that the Council should have provided through the provision set out in the EHC plans. Mrs B says this has also caused her financial distress as she must cover costs that would not be needed if C had access to the provision he was entitled to.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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)

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What I have and have not investigated

7. I have not investigated Mrs B’s complaint that the Council failed to provide free school meal equivalent while no school place was provided (from October 2022 to April 2023). This is because it would have been reasonable for Mrs B to have complained about this matter to the Ombudsman before September 2024 and I have not seen a good reason to use my discretion to investigate.
8. I have also not investigated Mrs B’s complaint that the Council failed to reimburse her the same fuel costs that it reimburses its staff. This is because the Council agreed to backdate the amount Mrs B requested as part of the complaint process. The Council has also told me that it has since significantly increased the mileage allowance further, and so there is no worthwhile outcome achievable by our investigation.
9. I have investigated the remainder of Mrs B’s complaint. The start date of my investigation is September 2023, and the end date is September 2024.

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How I considered this complaint

10. I have considered the information Mrs B and the Council provided.
11. Mrs B and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

EHC plan 

12. 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. 

Reviewing EHC plans

13. 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 take place. The process is only complete when the council issues a decision about the review.

Reassessments of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
15. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Maintaining the EHC plan

16. 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)  
17. 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. 

Post-16 – review, provision and naming placement deadline  

18. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

Summary of key events

19. C is a young person with additional needs and an EHC plan. The Council says it reviewed this in May 2022, but Mrs B says she does not recall this happening.
20. At the end of September 2023, the Council agreed to complete a reassessment of C’s EHC needs.
21. In late February 2024 the Council sent Mrs B a copy of a draft EHC plan for C. Mrs B then made requests for amendments to the EHC plan.
22. Mrs B complained to the Council about the same issues as this complaint at the end of April.
23. The Council responded to Mrs B’s complaint mid-June. The Council accepted:

• it had failed to send a finalised EHC plan for C within the 14-week timeframe for reassessment of need. The Council said it would send this to her today, and aimed to send the final EHC plan in two weeks’ time;
• it had not identified or named a post-16 placement for C by 31 March 2024, in line with statutory timeframes. It had now consulted with a provision and confirmed that C could start this in September 2024;
• it had not held an annual review within statutory timeframes, but would arrange a review when his EHC plan was finalised;
• it had not provided provision named in section F of C’s EHC plan, including quality tutoring, speech and language therapy, a referral to an independence provision and personal assistant support, but said it was taking action to provide this; and
• accepted it failed to find C a new educational setting from November 2022. It accepted that there is a current lack of specialist school places in its area, and it was making plans for a solution to this issue.

24. The Council also said it would consider Mrs B’s request for compensation and update her by the end of June.
25. In mid-June, Mrs B told the Council she was unhappy with its complaint response and asked it to escalate to stage two.
26. The Council issued C’s final EHC plan in July.
27. The Council responded to Mrs B’s stage two complaint mid-July 2024. In this, the Council:

• acknowledged C’s EHC plan was finalised on 26 July 2024, which was 44 weeks after it agreed to reassess and a further four weeks after they stated in the stage one complaint response;
• apologised for the impact of the delays on Mrs B, C and their family;
• accepted there had been a significant delay in completing C’s annual review;
• upheld Mrs B’s complaint that it failed to assess and amend C’s post-16 education phase transfer EHC plan within timeframes;
• accepted fault for the lack of time C had spent in education and the poor quality of education provision it had provided by way of Alternative Provision;
• accepted it had failed to deliver the provision in C’s EHC plan. It noted it had delayed in providing speech and language therapy and occupational therapy and failed to provide quality tutoring. The Council acknowledged it had not provided personal assistant;
• it had still not provided occupational therapy, multi-agency meetings or personal assistant hours for C; and
• it had poorly communicated with Mrs B.

28. The Council also said it would contact Mrs B about a financial remedy to recognise its faults. In the meantime, it offered Mrs B a financial remedy of £100 to recognise the delay in sending a stage two complaint response, which she declined.
29. The Council completed C’s annual review meeting mid-November 2024 but has still not completed the review process nor sent the paperwork to Mrs B
30. The Council has since offered Mrs B a financial remedy but there is no evidence it responded to her queries about this, and she confirmed the Council had not made a financial remedy payment to her.

Response to my enquiries

31. The Council said it acknowledged delays in issuing C’s final EHC plan. It said this was caused by significant capacity issues within the SEN service and the complexity of C’s situation.
32. It told me that during C’s assessment period, the service was managing over 8,000 EHC plans, with the same staff members that were managing only 4,000 EHC plans previously.
33. In response to this, the Council approved a recruitment campaign in spring 2024, with new council officers joining the department in July and August 2024. It restructured its department to have dedicated teams focussing on different aspects of the SEN process to increase effectiveness.
34. The Council also told me it was now holding regular meetings with Mrs B to maintain communication. But, Mrs B says the Council has continued to communicate poorly with her.

Analysis

EHC plan

35. The Council agreed to complete a reassessment of C’s EHC needs in September 2023. It should have issued a final EHC plan 14 weeks after this date, but it did not issue the final EHC plan until July 2024, which is a delay of 30 weeks. The Council’s failure to meet the required timeframes here amounts to fault.
36. This caused Mrs B and C frustration and distress.
37. The Council has put in place service improvements already and so I will not recommend anything further here, but I will recommend remedies for the personal injustice caused to Mrs B and C.

Annual reviews

38. It is clear from the documentation and the Council’s admissions there have been delays in C’s case. The Council should have completed an annual review by May 2023, but it did not hold the meeting until November 2024 and has still not completed the process nor sent Mrs B the paperwork.
39. This considerable delay is fault which caused Mrs B and C distress and uncertainty. I cannot say what the outcome would have been had the Council completed an annual review on time. But its failure to do so means it is unclear whether C had suitable support by way of an EHC plan from May 2023, and frustrated Mrs B’s appeal rights.

Post-16 education

40. The Council acknowledged it had failed to identify and name a post-16 placement for C, by the required statutory timeframe of March 2024. I welcome that it did go onto confirm a placement, that C was able to start in September 2024. But the Council’s delay in doing so was fault, which caused Mrs B and C frustration and uncertainty about his future education.

EHC plan section F provision

41. C was entitled to support by way of the EHC plan. Councils have a legal duty to secure all the provision named in section F of an EHC plan. In C’s case, this included tuition hours, occupational therapy, speech and language therapy, and personal assistant support.
42. Mrs B chased this provision several times, and then complained the Council had still not provided this in April 2024. The Council acknowledged in its complaint response in June 2024 that it had not progressed actions to secure this provision for C. There is evidence the Council did start to take some action after this to secure this provision, however, there was still a significant delay. This is fault, because the Council had a legal duty to ensure the provision in line with section F was secured and provided.
43. This caused C to miss out on four provisions as named in section F of his EHC plan from September 2023 (which is the start date of our investigation) to September 2024 (which is the end date of our investigation). This had a detrimental impact on C as he lost out on provision he was legally entitled to, which his EHC plan said he needed to access for his development and wellbeing, and to transition into adulthood. The Council should provide personal remedies to C to recognise his injustice in relation to these faults.

School placement

44. The Council accepted that it failed to find C a school place from November 2022 to September 2024. This was fault, which caused Mrs B and C significant distress and frustration. I will recommend remedies for the injustice caused by this during my investigation period, which is September 2023 to September 2024.

Communication and complaint handling

45. The Council has already accepted fault and apologised to Mrs B for poor communication throughout the EHC process and a delayed response to her complaint.
46. The Council also said in its stage two complaint response that it would contact Mrs B about a financial remedy. Although it did do this, it delayed in doing so. The Council also failed to respond to Mrs B’s queries about the financial remedy and this payment remains outstanding. This further poor communication with Mrs B is fault, which has caused her further frustration. I have already recommended the Council provide Mrs B with remedies related to this fault in a linked case and so will not suggest anything further here.

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Action

47. Within four weeks of my final decision, the Council will:

• write to Mrs B to apologise for the injustice caused by its faults. 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;
• complete C’s annual review and send the paperwork to Mrs B;
• make a symbolic payment of £500 to Mrs B, on behalf of C, to recognise the frustration, distress and uncertainty caused by the delay in reviewing Y’s EHC plan, failing to issue an EHC plan within timeframes and failing to name a post-16 provision within required timeframes;
• make a payment of £250 to Mrs B to recognise the frustration, distress and uncertainty caused to her by the delay in reviewing Y’s EHC plan, failing to issue an EHC plan within timeframes and failing to provide Y’s provision; and
• make a payment to Mrs B, on behalf of C, of £7,600 to reflect the lack of section F provision for C. This is made up of £1,900 over four terms from September 2023 to September 2024. This payment acknowledges the prolonged delay and the vulnerability of C. We suggest Mrs B uses this payment for C’s educational benefit.

48. The financial remedies listed, should replace the Council’s previous proposed financial remedy.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman