Summary: Miss X complained the Council delayed issuing an Education, Health and Care Plan after an annual review. And that her child, Y, missed education because of illness. There was a delay of four months in issuing a final Education, Health and Care Plan after the annual review. There was also a failure to adequately monitor Y’s education when they were ill for extended periods of time and not in school. A payment and apology remedies the injustice from the delay and uncertainty to Miss X and Y.

The complaint

1. The complainant, Miss X, complains the Council failed to amend Y’s Education, Health and Care (EHC) Plan following an annual review in line with statutory timescales.
2. Miss X also complains the Council failed to deliver the content of Y’s EHC Plan and alternative education when a child became too unwell to attend school. Miss X says that Y has missed education and it has been very stressful for the family.

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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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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).

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What I have and have not investigated

6. I have investigated from March 2024 onwards, when the annual review took place until 16 October 2024 when Miss X complained to the Ombudsman and the new EHC Plan was issued.
7. 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)
8. Miss X says the original Educational Psychologists report meant the contents of the 2023 EHC Plan did not reflect Y’s needs. Miss X explained by the time the 2023 EHC Plan was sent to her, she was out of time to appeal the decision to the SEND tribunal. I see no reason to exercise discretion to investigate events leading up to the 2023 EHC Plan now. This is because I would have expected Miss X to make a complaint to the Council about the delay in 2023 and/or to ask the SEND tribunal for permission to make a late appeal.
9. Miss X complains no educational provision was made from 16 October 2024 to January 2025. She complains the Council has not issued an EHC Plan naming specialist school after panel agreed to this. She can make a new complaint to the Council and then the Ombudsman for this time period.

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How I considered this complaint

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

The law

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. 
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. 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.
15. 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;
16. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Key facts

20. Y has complex health problems which impact on theit ability to attend school when they are unwell. They have an EHC Plan, dated 16 March 2023, which named a mainstream primary school.
21. Due to medical needs, Y started to attend school part time (mainly in the morning) from March 2024.
22. The annual review meeting for Y’s EHC Plan was on 15 March 2024.
23. The school put a part time timetable in place from 29 April 2024. The Council were told that Y was not in school full time on 10 May 2024. The Council referred Y to an online school service on 17 May, to start on 20 May 2024. This was for 10 sessions a week for 3 weeks to provide education while Y was unwell.
24. The Council wrote to Miss X on 17 May 2024 to ask for further, updated information about Y’s medical conditions and diagnosis to support her request for a change of placement to specialist school.
25. Miss X replied on 17 May 2024 that Y was in hospital and was likely to be there for 2-3 weeks so would not be able to access online learning. Miss X said that Y would be enrolled into the hospital education plan. The Council delayed the online school until 10 June. Y returned to school for 2 mornings but was then unwell.
26. The Council’s records of 18 July 2024 say ‘panel decision that more evidence was needed to make a decision on whether a change of placement to a specialist school was appropriate’.
27. The Council emailed the school on 1 September 2024 to ask for an update. School said that Y was possibly going into hospital.
28. A final EHC Plan was sent to Miss X on 16 October 2024. This named Y’s current mainstream school. The Council told Miss X of her right to appeal to the SEND tribunal.
29. On 16 October 2024 the Council’s education panel agreed to carry out a reassessment by an Educational Psychologist. The panel also agreed to a change in placement to a specialist school. The Council told Miss X this on 22 October.
30. The Council asked for an update in November 2024. On 18 December 2024 the school said that Y attended school when well enough. On 7 January 2025 Y was isolating before an operation in hospital. There was one session with a teacher on 14 January 2025.
31. From January 2025 Y received 2 hours a week of tuition at home.

Annual Review

32. Miss X complains the Council failed to amend a child’s Education, Health and Care Plan following an annual review in line with statutory timescales.
33. The Council was at fault. The final plan should have been sent to Miss X by 7 June 2024. It was not sent until 16 October, this is a delay of 4 months. The Council has offered an apology and a symbolic financial remedy of £400 to acknowledge the frustration and uncertainty caused by the delay in the annual review process.
34. The remedy offered by the Council is in line with our remedies guidance and so I consider it remedies the injustice to Miss X.

Educational Provision

35. Miss X complains that Y has not received a full time education and the provision in Section F of the EHC Plan from March 2024 until October 2024. Miss X has explained that Y’s medical needs increased and this has meant they have been unable to attend school full time.
36. From the information I have, Y has not received full time education from March to October 2024. My role is to find out if there is fault by the Council.
37. From the information I have, Y was unwell and in hospital in March 2024. On return to school Y was on a part time timetable from 29 April 2024. The school told the Council of this on 10 May 2024.
38. The Council enrolled Y in an online school from 20 May. As Y was in hospital, they were enrolled into the hospital school and the start of the online school was delayed until 10 June. Y returned to school for 2 mornings but was then unwell. The Council promptly arranged online schooling once it was aware Y was on a part time timetable. I find no fault by the Council up till this point.
39. I can from the school’s attendance records that Y attended school on 12 mornings from 10 June to 22 July 2024. Y did not log into the online schooling.
40. In response to my complaint the Council said ‘Y attends school until lunch time, accessing 20 hours a week of education at school, this has been in place since April 2024. A written agreement with parents is in place and is reviewed fortnightly. A specialist provision is being pushed for to accommodate for needs. Parents and school are working together well’. However, the attendance records provided by the Council show that Y was not accessing 20 hours a week of education at school. The Council has said that ‘Y is open to OT (Occupational Therapy) & SALT (Speech and Language Therapy)’.
41. From 10 June until 16 October 2024 there are two emails on file, where the Council emailed the school to ask for updates in June and September 2024. On both occasions the school told the Council that Y was unwell. The Council did email the school to ask for updates and had tried to put some online provision in place, so I can see the officer did review the case. Given that the Council was gathering evidence which subsequently supported a change of provision to specialist school I do consider it could have done more to investigate whether Y could have accessed alternative educational provision, such as home tuition. The Council could have also considered whether other parts of the provision in Section F of the EHC Plan, such as the OT and SALT provision could have been provided outside of school. The failure to do this was fault.
42. I now have to consider the injustice caused by the failure to adequately monitor Y’s education and the provisions in the EHC Plan from 10 June to 16 October 2024. I cannot be certain that Y would have been well enough to receive educational provision during this period, as they were in hospital on several occasions. Y was offered access to online education and six weeks of this time was the school holidays. Y did also attend some mornings in school. It may well have been the case that there was no other suitable provision for Y but there is no evidence the Council adequately considered the other options available.
43. The injustice to Miss X is the uncertainty of never knowing if Y could have managed some more educational provision for this time if it had been offered. An additional symbolic financial remedy is appropriate for this time, as the uncertainty was made worse by the delay in finalising the EHC Plan after the annual review. The Council should pay £250 towards Miss X’s uncertainty during this period.

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Action

44. Within one month of the date of this decision the Council will:
• Apologise to Miss X. 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.
• The Council has provided evidence it has already paid the £400 referred to in paragraph 33. It should pay Miss X the £250 referred to in paragraph 43.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman