Summary: Miss B complained the Council’s Education, Health and Care Plan process failed her son, X. Miss B says X has been placed in an unsuitable placement and is receiving little to no education. We found the Council at fault for a delay in issuing a final Education, Health and Care Plan following an annual review and failing to consider its section 42 duty once it was aware X was not attending school. This has caused distress, frustration and uncertainty to Miss B and X. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Miss B complained the Council’s Education, Health and Care Plan process has failed her son, X. Miss B says X is in an unsuitable placement and is receiving little to no education. Miss B also says communication throughout the process has been poor and the Council has not taken action to resolve the issues raised in her complaints. Miss B says she has been unable to return to work and has experienced stress as a result. She also says X is socially isolated and his mental wellbeing has been impacted. Miss B would like the Council to work in line with correct policy, process and legislation to ensure her son receives suitable, full-time education.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
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).

Back to top

What I have and have not investigated

7. I have not investigated the suitability of the placement named in X’s Education, Health and Plan. Miss B had a right to appeal this placement each time X’s EHC Plan was issued. The law says we cannot normally investigate where a person has a right to appeal. I have considered whether it was reasonable for Miss B to appeal the setting. The Council explained Miss B’s appeal rights and signposted to independent support each time a final Plan was issued. Therefore, I consider it was reasonable for Miss B to appeal the named setting in section I of X’s EHC Plan if she believed it was unsuitable.
8. My investigation will cover the Council’s actions between February 2023 to September 2024.

Back to top

How I considered this complaint

9. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
10. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Legal and administrative background

Education Health and Care Plan

11. 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.
12. 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). 
13. 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.

Key-stage transfer reviews

14. 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.

Annual review process 

15. 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.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the Plan is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
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.

Council complaints policy

18. The Council has a separate complaints procedure for children’s social care, education and SEND. This procedure does not set out a timeframe for the Council to respond to complaints.
19. The procedure advises complainants can ask to speak or meet with the team manager of the service they are complaining about.

What happened

20. X was due to start secondary school in September 2023. The Council issued an updated EHC Plan in February 2023.
21. The updated EHC Plan said that from September 2023, X should attend a mainstream school with a specialist centre attached. The Council did not name a specific setting but explained to Miss B it would work hard to secure the most appropriate placement for X. The Council also offered to meet with Miss B to discuss what happens next and any concerns she may have.
22. In July 2023 the Council secured a place for X at a mainstream setting, which he began in September 2023. X’s Plan was not updated with this placement named until October 2023.
23. In its stage one complaint response the Council acknowledged X went through multiple case officer changes and Miss B experienced a lack of communication from the service during the key stage transfer process.
24. In November 2023 a targeted support meeting took place as X had been struggling to attend school. Following this meeting the Inclusion officer emailed the SEND team to explain X was on a reduced timetable and only receiving 10 hours of education per week. The inclusion officer asked the SEND team to confirm the Council’s plan moving forward. There is no evidence the SEND team responded to this email. I have seen no evidence the Council considered its section 42 duty once it became aware X was unable to attend school.
25. An annual review meeting took place in December 2023. Following this review the Council decided it needed to amend X’s EHC Plan. In accordance with statutory timeframes the Council should have issued its decision letter no later than the first week of January 2024. It should have issued X’s final amended EHC Plan no later than the end of February 2024.
26. The Council did not issue X’s final amended EHC Plan until September 2024. In response to our enquiries the Council told us it did not receive the annual review paperwork from the setting until March 2024.
27. The annual review paperwork, completed in December 2023, explained X was struggling to attend school and this was due to a number of factors related to his special educational needs. The paperwork also explained that X was accessing school for 10 hours per week, but he was significantly behind expected attainment and engagement for his year groups due to his attendance. X’s school requested the Council find him a specialist placement suited to his needs.
28. Between January 2024 and July 2024 X remained on a reduced timetable at school. The Council has provided evidence it was aware of X’s limited access to education and its inclusion team monitored this. The Council has not provided evidence it considered its section 42 duty to ensure X received the special educational provision detailed in his EHC Plan, or whether the 10 hours of education X was accessing was suitable.
29. Miss B submitted a complaint to the Council at the end of September 2023. The Council acknowledged receipt of the complaint the following day. The following week a Council officer contacted Miss B to ensure make sure the Council understood Miss B’s complaint. The officer explained a manager would respond to the complaint within 10 working days of Miss B confirming her complaint. Miss B confirmed the details of her complaint and requested a meeting with the Council to discuss her concerns.
30. The Council officer contacted Miss B the following week to tell her the complaint details had been passed to a manager who had been asked to contact Miss B directly to arrange a meeting. The officer advised if Miss B had not been contacted by the following week, she could contact the officer who would chase up the manager.
31. The Council issued a stage one complaint response in October 2023. The Council upheld Miss B’s complaint and offered apologies for the poor communication and confusion. The Council did not offer to meet with Miss B to discuss her complaint.
32. Miss B raised a further complaint in July 2024 because no progress had been made following the first complaint and X was still not accessing full time education.
33. The Council issued a complaint response two weeks later. The Council apologised for the delay in completing the December 2023 annual review and offered a meeting with Miss B to discuss her concerns.
34. Miss B escalated her complaint, and the Council issued a stage two complaint response in September 2024. The stage two complaint response apologised for the delay in completing the annual review and says the Council correctly monitored X’s attendance. The Council offered Miss B a symbolic payment of £700 in recognition of the delay. Miss B did not accept this offer.

My findings

35. There is no fault in the Council issuing an EHC Plan in February 2023 which did not name a specific setting. The Council has a duty to name either a specific setting or a type of setting.
36. During the key stage transfer process X had multiple case officer changes and Miss B experienced poor communication from the Council. This is fault which caused Miss B frustration, distress and uncertainty.
37. There was a three month delay in the Council updating X’s EHC Plan to name the setting he attended from September 2023. This is fault which caused Miss B and X uncertainty and delayed their appeal rights.
38. Between November 2023 and September 2024, the Council was aware X was not accessing full time education. This meant he was not receiving the provision set out in section F of his EHC Plan. In the December 2023 annual review, X’s school raised concerns about the impact his limited access to education was having on his progress. The Council has not provided any evidence it considered its section 42 duty to ensure X was receiving the special educational provision set out in his EHC Plan. This is fault which caused distress, frustration and uncertainty for X and Miss B.
39. Following the annual review in December 2023, the Council did not issue X’s amended final Plan until September 2024. This is a delay of approximately 7 months. This is fault which frustrated Miss B’s right to appeal and caused distress, frustration and uncertainty to X and Miss B.
40. The Council failed to arrange a meeting with Miss B to discuss her complaint. This is fault which caused Miss B frustration.

Back to top

Action

41. Within one month of the final decision the Council will:
• Apologise to X and Miss B for the faults identified. 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 its apology.
• Make a symbolic payment of £1000 to Miss B in recognition of the injustice caused by the delay in updating X’s EHC Plan in July 2023 and the delay in issuing the amended EHC Plan following the December 2023 annual review. This is calculated at £100 per month of delay.
• Make a symbolic payment of £750 to X and Miss B in recognition of the injustice caused by the Council’s failure to consider its section 42 duty between November 2023 and September 2024. This is calculated at £250 per term.
• Make a symbolic payment of £250 to Miss B in recognition of the poor communication Miss B experienced during the key stage transfer process and the Council's failure to arrange the meeting Miss B was expecting during the stage one complaint process.
42. Within three months of the final decision the Council will:
• Issue a reminder to a reminder to the schools in its area, explaining the annual review process and timeframes for sending the annual review paperwork following the annual review meeting.
   
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman