Summary: Mrs X complained that since 2021, the Council has not updated her child Y’s Education, Health and Care Plan or provided Y with an education. We find the Council at fault, resulting in a loss of education for Y. This has impacted Y’s mental health and caused Mrs X avoidable distress and uncertainty. The Council has agreed to apologise, make a payment to Mrs X, and issue a final amended Education, Health and Care Plan.

The complaint

1. Mrs X complained that, since 2021, the Council has not updated her child Y’s Education, Health and Care (EHC) Plan or provided Y with an education.
2. She says this has significantly impacted Y’s mental health.
3. She wants a final amended EHC Plan to be issued and for Y to receive an education.

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The Ombudsman’s role and powers

4. 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)
5. 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.
6. 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)
7. 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

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. Mrs X became aware of the delay issuing Y’s previous final amended EHC Plan in February 2022 and 2023 and should have brought her complaint to the Ombudsman within 12 months of this. She brought her complaint in October 2024. I will therefore only investigate matters that have taken place since October 2023.

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How I considered this complaint

10. I considered evidence provided by Mrs X and Council as well as relevant law, policy and guidance.
11. Mrs 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

Law and legislation

Education, Health and Care Plan

12. 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. 

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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. 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.

Transition planning

16. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  

Appeal rights

17. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

What happened

19. Y has special educational needs and was first issued an EHC Plan in 2018. His EHC Plan was not amended following the annual reviews in 2021 or 2022.
20. In October 2023, shortly after starting year 10, Y stopped attending school due to a decline in his mental health. The school placed Y onto a reduced timetable.
21. In November, an annual review took place at Y’s school. The review documented that Y was no longer attending school and plans to re-engage him had been unsuccessful. The school stated it could not meet Y’s needs. Mrs X also shared that the school was not working for Y and raised concerns about his mental health.
22. In February 2024, Mrs X contacted the Council for an update following the review, as she had not received a draft or final amended EHC Plan. She also formally requested that Y be considered for a specialist school, explaining that he had been unable to join lessons since Year 7 due to his special educational needs.
23. In March, after receiving no response, Mrs X contacted the Council again. She restated that Y was not attending school and expressed concern that his EHC Plan had not been updated, nor had any preparation been made for his transition to adulthood.
24. Later that month, after receiving no response from the Council, Mrs X made a formal complaint raising:
• the school had been reporting for three years that it could not meet Y’s needs, yet the Council had taken no action. Y had not attended any lessons, mixed in the main school, followed the curriculum, or begun GCSE preparation;
• Y had received no education since October 2023;
• no final amended EHCP had been issued since 2021; and
• her request for Y to attend a specialist provision had been ignored.
25. The Council suggested resolving the matter informally with a SEN resolution officer, and Mrs X agreed.
26. In April, a further EHC Plan review meeting took place at the school. The review concluded that Y’s EHC Plan needed amending due to significant changes in his needs.
27. By May, Mrs X had seen no progress regarding her complaint, so she requested it to be escalated to a formal investigation. She had to follow up and provide additional information before the Council agreed to move forward with the complaint.
28. In June, the Council responded to the complaint. It said:
• there was clear evidence from the last three annual reviews that the school could not meet Y’s needs, and an updated EHC Plan is needed as a priority;
• no formal request for specialist school has been recorded, though the Council accepted this was due to a communication breakdown and apologised; and
• despite annual reviews, no updated EHC Plan had been issued since 2021. The Council admitted it had not received a response from the SEND team and could not confirm who Y’s caseworker was but stated that a caseworker needed to contact the family.
29. In July, dissatisfied with the response, Mrs X escalated her complaint to stage two. She raised:
• Y had not received any alternative provision since October 2023;
• a final amended EHC Plan had not been provided following the review in November 2023;
• communication from the SEND team was poor, and no progress had been made; and
• provided evidence that she requested a specialist school in February 2024 and that the Council acknowledged receipt of the email.
30. In September, the Council provided its final response, upholding Mrs X’s complaint. It accepted that despite repeated communication from both the school and Mrs X, it had failed to take appropriate action or respond adequately. The Council apologised and offered £900 per term for the three terms Y had been without education (a total of £2,700). However, it documented that it was doubtful Y’s case would be reviewed or that any decisions would be communicated to Mrs X due to responses it had received from its own SEND team.
31. Later that month, Mrs X arranged for Y to attend a six-week course, funded by the school. However, Y only attended the initial meeting and induction.
32. The Council has since advised that Y’s school had offered online learning in December 2023. However, it could not confirm how much education was offered, if it was suitable for Y’s needs, or whether it was provided. The Council acknowledged it failed to ensure Y received full-time equivalent education and that it had significant gaps in its records, which contains only school consultation records, and no evidence of education provision.

My findings

Alternative provision

33. The Council has accepted that it failed to consider arranging suitable alternative provision for Y. In recognition of the missed education, the Council offered Mrs X £900 per term for the year, a total of £2,700.
34. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. In my view, while the Council has considered the missed education, it has not considered the significance of Y’s situation or the impact on his education and wellbeing. Given that Y has been out of education for 12 months, I consider an increased remedy appropriate.
35. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special educational needs, whether any provision was made, whether this was a key year of education, and any loss or delayed right of appeal to tribunal.
36. Given Y’s significant needs, the fact that this occurred during a key transition period when he should have been preparing for his GCSEs, and the Council’s failure to oversee or ensure a full-time equivalent education, a higher remedy of £6,600 is justified.
37. Y missed three terms of education, but the circumstances varied across each term:
• Term 1 (Autumn 2023). The school offered a reduced timetable and online provision. However, the Council failed to consider whether this was suitable for Y or ensure it was delivered effectively. Even when informed that this provision was not working, the Council did not intervene. Given that some level of provision was offered but not properly overseen, I recommend a remedy of £1,800 for this term.
• Terms 2 and 3 (Spring and summer 2024). During this period the Council was aware that Y was out of education and was not accessing any alternative provision. Despite this, it failed to review the situation, take action, or ensure that Y received suitable provision. Due to the lack of alternative provision and its impact on Y’s education and development, I recommend a higher remedy of £2,400 per term for these two terms.

Final amended EHC Plan

38. The Council has accepted it failed to issue a final amended EHC Plan within the statutory timescales.
39. Y’s final amended EHC Plan should have been issued within 12 weeks of the annual review in November 2023, so in January 2024. It was still not issued when Mrs X brought her complaint to the Ombudsman in October 2024, a delay of 9 months. This delay is fault.
40. This delay has left Y without the necessary support to prepare for adulthood, affecting his future prospects. It also denied Mrs X her right of appeal and caused avoidable distress and uncertainty.

Poor communication

41. When Mrs X initially agreed to discuss the complaint informally with a resolution officer, she believed she would receive a quicker resolution. Instead, the process caused further delays, and she ultimately had to request a formal complaint investigation. Even after this, she had to follow up the Council for acknowledgment and progress updates.
42. The Council has accepted that its communication was inadequate. It acknowledged that the SEN team failed to act on, or respond to, the request for a specialist school, and the Council itself could not identify Y’s caseworker. The Council’s poor communication is fault. I cannot say, even on the balance of probabilities, whether Y would have moved to a specialist school if the request would have been considered. However, this unknown caused uncertainty and distress.

Conclusion

43. The Council’s handling of Y’s EHC Plan and Mrs X’s complaint had several faults which caused them significant injustice. Despite clear evidence of need, the Council failed to act appropriately, leaving Y out of education, without suitable alternative provision, and without an updated EHC Plan. The situation was further aggravated by poor communication and administrative failures, resulting in unnecessary distress and uncertainty for Y and his family.

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Action

44. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X £6,600, as a remedy for Y’s benefit, in recognition of the lack of alternative provision (this is instead of the Council’s proposed remedy);
• pay Mrs X £500 in recognition of the distress and uncertainty caused by the Council’s failure to issue the final amended EHC Plan in line with statutory timescales, failing to consider her request for a specialist school, and for its poor communication; and
• issue the final amended EHC Plan for Y.
45. Once the final amended EHC Plan is issued, the Council has agreed to remedy, in line with our Guidance on Remedies, any special educational provision Y would have had sooner but for the delay (in this case since October 2023).
46. I have not recommended any action for the Council to take to improve its services. This is because the Council recently assured the Ombudsman of the actions it is taking to address delays within its SEND team.
47. However, considering the significant concerns raised in this case, I recommend, within three months of the date of my final decision, the Council should share this decision with its relevant scrutiny committee or panel for this issue.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman