Summary: The Council failed to review and issue Mr X’s son, Z’s, Education, Health and Care Plans on time. It also failed to plan for the support Z would need when he started post-16 college. This meant Z missed key support he needed during his GCSE year of school, he had no record of his needs as his physical disability progressed and he avoidably missed out on post-16 education. The Council’s faults also caused Z and Mr X avoidable frustration, distress and uncertainty. To recognise the injustice caused, the Council has agreed to apologise, pay Mr X and Z £2,500 and take action to improve its services.

The complaint

1. Mr X complained the Council:
• failed to have sufficient oversight of whether his son, Z, was receiving the provision in his Education, Health and Care (EHC) Plan;
• failed to carry out regular annual reviews of Z’s EHC Plan; and
• delayed finalising Z’s EHC Plan following his annual reviews.
2. Mr X said because of these faults, his son missed out on key additional support that he needed during his GCSEs, his educational attainment was affected and they have both been caused avoidable frustration and distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, if there is a conflict of evidence, 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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. (Local Government Act 1974, section 26(5), section 34(B)6
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 exercised discretion to investigate events from 17 July 2023 to the date of the Council’s final complaint response of 1 July 2024. I have considered and remedied ongoing injustice beyond that date.

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How I considered this complaint

10. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
11. Mr X and the Council have an opportunity to comment on a draft decision. All comments received are considered made before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

12. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
13. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
14. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC Plans must be reviewed as a minimum every 12 months (para 9.166);
• within four weeks of the review meeting the council must decide whether it proposed to keep the EHC Plan as it is, amend the Plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the Plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the Plan, councils must send the child’s parent or the young person a copy of the existing Plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
15. Within twelve weeks of the annual review meeting, the final, amended EHC Plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

Post-16 planning in EHC Plans

16. 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.  

Arranging provision

17. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
18. 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)  
19. 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. 

SEND Tribunal

20. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
21. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.

What happened

Background

22. Mr X’s son, Z, has a progressive physical disability which causes mobility to become worse over time. Z is a wheelchair user. Z attended a mainstream secondary school where he required additional support due to his disability. This additional support was set out in his EHC Plan.

Key events

23. An annual review of Z’s EHC Plan was held in July 2023. This review was held because Mr X had raised a complaint with the school that Z was not receiving enough support to meet the needs from his progressive disability.
24. Z’s last in force EHC Plan at that time was from 2021 as the Council had not amended his Plan since then. Z’s 2021 EHC Plan said he should receive several forms of additional support, including but not limited to:
• Multiple sessions with his physiotherapist and occupational therapist per year;
• A range of equipment including height adjustable tables in classrooms to accommodate his wheelchair;
• Equipment to support toileting;
• Access to a laptop and to be allowed to type rather than handwrite their notes.
25. By the date of this annual review, Z had just finished year 10 and was about to go into his final year of compulsory education in September 2023, when he would sit his GCSEs.
26. The Council did not attend the annual review but Mr X, the school and several health professionals attended.
27. The review said Z’s grades were below expected and he was not meeting all his EHC Plan outcomes. It also noted his physical disability was progressing and recommended his EHC Plan should be amended. It noted:
• Z’s ability to use his arms had decreased and professionals needed to explore different ways he could write notes, such as the use of alternative technology or a scribe;
• The school had been providing 1:1 support in lessons as his condition progressed and this now needed to increase. The school asked to be provided with additional funding for this;
• It set out his exam arrangements, which said he would need extra time, a prompter, a reader and a scribe or a laptop.
28. The Council did not progress this annual review or amend the EHC Plan. This annual review did not consider any post-16 placements for Z or discuss what Z’s post-16 arrangements should look like.
29. Mr X raised concerns with the school again in December 2023 that the provision Z needed was not in place and the school passed these concerns onto the Council. The Council did not amend Z’s EHC Plan or progress the review further.
30. In December 2023 the Council consulted several post-16 colleges for Z. The Council used Z’s last in force EHCP from 2021 to consult those colleges, which no longer reflected his increased need for support.
31. The Council held another annual review of Z’s EHC Plan in February 2024. Mr X attended along with the Council, the school and Z’s health professionals. It again recommended that Z’s EHC Plan should be amended. The review said:
• Z had started using an ipad provided by the school to support him writing notes but this had mixed results and other forms of technology needed to be looked into. The school asked the Council to fund a laptop;
• It repeated the exam arrangements he required from the previous annual review;
• It repeated that he needed more 1:1 support in lessons; and
• It said he should access support from a specialist organisation – Service A - to assist him in understanding and coping with the physical symptoms and emotions arising from his disability.
32. The annual review again did not discuss or consider what Z’s post-16 arrangements should look like. The Council consulted more post-16 colleges for Z after the annual review.
33. Mr X sent a stage one complaint to the Council on 8 May 2024. He said the Council had failed to review Z’s EHC Plans annually and Z was not receiving all the additional support he needed in school.
34. Mr X complained that:
• Z did not have enough 1:1 support in class;
• Tables in one of his lessons were not height adjustable for his wheelchair; and
• He was not accessing the specialist support from Service A to assist him in coping with the challenges of his disability.
35. The Council received some responses to its consultations for post-16 colleges and emailed Mr X to ask which of the colleges Z would want to attend. Mr X said he and Z had not been given enough time to make that decision and complained that Z’s post-16 arrangements should have been explored through his annual reviews. Mr X told the councils his preferred colleges shortly after and the Council consulted them.
36. The Council responded to Mr X’s complaint at stage one of its complaints procedure. Regarding the additional 1:1 provision, it said this was not a requirement of Z’s EHC Plan and the school chose to provide it, so Mr X should complain to the school. However it also acknowledged that following the July 2023 annual review (which recommended the additional 1:1 support), it failed to amend the Plan and apologised for this. The Council said it was working to finalise Z’s EHC Plan following the most recent annual review and said it had received confirmation that Z was now accessing the support from Service A.
37. Mr X was unhappy with the Council’s response. He said Z’s increasing lack of mobility in his arms meant he needed additional support for writing and this was still not in place. He also said the support from Service A still had not started.
38. On 1 July 2024 the Council responded at the final stage of its complaints process. It apologised again for its failure to progress the July 2023 annual review and said the officer responsible no longer worked for the Council. It said it had consulted Mr X’s preferences for Z’s post-16 placement and it had now asked the school for evidence of the provision it had put in place for Z in that academic year.
39. When Mr X contacted the Ombudsman, he said Z did not receive all the additional support he required during his exams and at points had to handwrite his answers, which caused him pain and affected his condition.
40. The Council issued Z’s final EHC Plan on 2 August 2024. It named a post-16 college, College A, that Z would start at in September 2024. In Section F, the Plan set out support that Z would require at college. This included but was not limited to:
• the same specialist equipment he had for toileting at his previous school would need to be provided by his college;
• 1:1 support in lessons as required; and
• the same exam arrangements that he needed in school.
41. Z attended College A for the first time on 3 September 2024 but within a few hours, Mr X had to collect him and bring him home. College A did not have key equipment or relevant staff in place to meet Z’s needs, including equipment for him to use the toilet. Z was asked by the college to return home for a period of 6-8 weeks while it put the support in place.
42. College A told Mr X that when the Council consulted it in December 2023, the documents at that time did not reflect the changes in Z’s needs so it had not made the necessary arrangements.
43. The Council held an emergency annual review in October 2024 and College A said it was not currently the right setting to meet Z’s needs. Due to the progression of Z’s disability by this time and with no post-16 education placement available, Z stayed home and Mr X provided care for him.
44. Mr X said this period affected Z negatively. He said Z was not attending college while his peers were and this caused him distress. Mr X said it also had an impact on him, as without a college place, he was providing care during the day to Z while working night shifts in the evenings.
45. From February 2025, Z began receiving interim tutoring and in March 2025 the Council issued an EHC Plan which named College A again, but with a range of additional support to be put in place for a September 2025 start.

My findings

Fault

46. For the entirety of Z’s final year of compulsory education, when he sat his GCSEs, Z did not have an up-to-date record of his needs through his EHC Plan. His most recent EHC Plan in force during that period was from 2021, despite his physical disability having progressed since that time. The 2021 Plan did not include Z’s need for 1:1 support, alternative equipment for taking notes due to the reduced use of his arms or the additional support he needed during his GCSE exams.
47. This up-to-date record was missing because the Council failed to complete its annual review of Z’s EHC Plan in July 2023 and significantly delayed finalising Z’s EHC Plan following its review in February 2024. The Council failed to review and amend Z’s EHC Plans in line with the legal timeframes and this was fault.
48. The Council also did not carry out any post-16 planning with Z or his family at these two annual reviews. It should have completed the preparatory work and discussions around Z’s post-16 placement and issued a final EHC Plan, naming the college he would attend in September 2024, by 31 March 2024. The Council failed to do this. Instead the EHC Plan was not issued until August 2024. This was fault by the Council.
49. Finally, the Council failed to provide up to date EHC Plans to the post-16 placements it consulted for Z and so these colleges did not have a clear picture of Z’s needs when they considered whether to offer him a place.
50. The Council’s failure to properly review and issue Z’s EHC Plans and properly prepare for his post-16 education have caused significant injustice to Z and his family. I set out the impact of these faults in further detail below.

Injustice

51. 1:1 support: At the annual reviews in July 2023 and February 2024, professionals said Z now needed 1:1 support from a teaching assistant, due to the progression of their disability. When the Council issued its delayed final EHC Plan for Z following this review, it did not specify how much 1:1 support Z needed and only said 1:1 support should be provided “as required”.
52. I therefore cannot say, even on balance, exactly how much 1:1 support Z should have received in his lessons during the year I have investigated. Any disagreement over the amount of 1:1 provision, as set out in Z’s EHC Plan, would be a matter for the SEND Tribunal to resolve, as the Ombudsman cannot order changes to be made to EHC Plans.
53. However the records do demonstrate Z had an increased need for support in his lessons, to the extent that his school began providing some additional teaching assistant support despite this not being in his EHC Plan. The Council’s fault has therefore caused Z and Mr X distress and uncertainty about whether Z should have accessed more support than he did in his GCSE year. This uncertainty is a significant injustice to them.
54. Alternative technologies for writing and a laptop: The school trialled use of an iPad from September 2023 to help Z take notes. This had mixed results so the school asked the Council to fund a laptop from February 2024 onwards. Access to a laptop was a requirement of Z’s 2021 EHC Plan, so once the Council became aware Z did not have a laptop, it should have promptly taken steps to ensure the provision was arranged. It failed to do this.
55. The Council’s duty to arrange the provision in Section F is non-delegable, so if it asked the school to do it and it failed to, the Council remains responsible. The Council failed to ensure Z had a laptop for recording his notes from February 2024 until July 2024. This missed provision is a significant injustice to Z as it took place when he was sitting his GCSE exams.
56. Adjustable tables at school: Adjustable tables were a requirement of Z’s 2021 EHC Plan so he could sit at them in his wheelchair. When Mr X complained in May 2024 that this was not in place in one of Z’s lessons, the Council should have followed up with the school and taken action to ensure this was in place. It failed to do this.
57. Again, the Council’s duty to arrange the provision in Section F is non-delegable, so if it asked the school to do it and it failed to, the Council remains responsible. The Council became aware of the problem in May 2024 but failed to ensure Z had access to a suitable desk. This fault caused Z to miss out on equipment he needed for a period of several months.
58. Exam arrangements: Mr X and Z both said Z did not receive all the additional support required for him to sit his exams. Mr X said at times Z had to handwrite his answers, despite the progressive disability in his arms and the impact this had on him.
59. When the Council issued Z’s significantly delayed EHC Plan in August 2024, it included all the recommendations made during the July 2023 and February 2024 annual reviews for Z’s exam requirements. These included that he needed extra time, a prompter, a reader and a scribe or laptop.
60. The Council was not informed of this lack of provision in enough time to resolve it ahead of Z’s exams. However if the Council issued Z’s EHC Plan when it should have, in March 2024, Z would have had a legal record of their exam requirements much sooner and the school and Council would have had a duty to arrange this provision. On balance, I consider it is most likely that if not for the Council’s fault, Z would have accessed this additional support during his exams. Instead Z missed out on this provision during key exams and this was a significant injustice to him.
61. Service A - specialist emotional support: At Z’s annual review it was recommended he should access Service A – which offered support in understanding and managing the physical and emotional impacts of disability. This provision was not included in Z’s EHC Plan after it was recommended to be added during his annual review. The school’s provision records do not demonstrate that this was arranged in the 2023/34 academic year.
62. I cannot say, even on balance, whether the Council would have added this provision to Z’s final EHC Plan if it had issued the Plan in time. This is because, by the time the delayed Plan was issued, it reflected Z’s post-16 provision, rather than the support he should have received in school.
63. The Council’s failure to issue Z’s EHC Plan in a timely way has caused Z and Mr X frustration and uncertainty about whether Z would have accessed this support if not for the fault.
64. Missed provision – no post-16 placement: From September 2024 to February 2025 Z had no provision in place, as College A was not properly prepared by the Council for the extent of Z’s needs. He could not attend his post-16 college and as a result, Z received no education for a period of five months, which was a further, significant injustice to him. This also caused frustration and distress to Mr X who then needed to provide additional care to Z at home. I have recommended a remedy for missed education in line with our Guidance on Remedies to recognise this injustice.
65. From February 2025 onwards Z received interim tutoring and so I have not recommended a financial remedy in line with the scale we use for missed provision. However this period still caused Z distress and frustration as he wanted to attend a college like his peers, not be tutored at home. I have recommended a symbolic payment to recognise the impact of this.

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Action

66. Within one month of the date of the final decision, the Council should:
1. Apologise to Z and Mr X for the injustice caused by the faults in this case;
2. Pay Z £1,200 to reflect the period he had no post-16 education in place (September 2024 to February 2025);
3. Pay Z £500 to recognize the additional support he should have received during his GCSE year but which the Council failed to arrange;
4. Pay Z £400 to recognise the frustration, uncertainty and distress he has caused by the Council’s faults in this case;
5. Pay Mr X £400 to recognise the frustration, uncertainty and distress he has also been caused by the Council’s faults in this case; and
6. Consider whether it would still be beneficial for Z to receive support either from Service A, or from a similar service, that may provide useful emotional support for Z as his disability progresses. If so, it should put this in place.
67. Within three months of the date of the final decision, the Council should demonstrate that:
1. Senior management have considered this decision and carried out a lessons learned review, including producing an action plan for ensuring faults like this do not occur in future; and
2. It has shared the details of this case with its SEND team and reminded all relevant staff of the importance of adhering to the statutory timeframes for reviewing and finalizing EHC Plans, as well as the important of transition and post-16 planning being completed by the legal deadlines set out in the SEND Code of Practice.
68. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. I find fault causing injustice. The Council has agreed to take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman