Summary: Mrs X complained about the Council’s handling of her child, Y’s Education, Health and Care (EHC) Plan and annual reviews since 2023. She also complained about a failure to investigate safeguarding allegations. The Council was at fault. It delayed issuing amended EHC Plans following annual reviews in 2023 and 2024 and delayed putting alternative provision in place during 2024. It considered the safeguarding allegations without fault. The Council agreed to make payments to recognise the injustice caused to Y and Mrs X and issue Y’s EHC Plan without further delay.

The complaint

1. Mrs X complained about the Council’s handling of her child, Y’s Education, Health and Care (EHC) Plan and annual reviews since 2023. She also complained the Council failed to properly investigate safeguarding concerns she reported about Y’s school.
2. Mrs X said Y does not have an up to date EHC Plan following an early annual review in February 2024 and said they were left without education between March and September 2024 when Y was unable to attend school.
3. Mrs X said the matter caused distress, uncertainty and impacted on Y’s education and social development.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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.
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. 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)
10. I have not investigated Mrs X’s concerns about Y’s education or annual reviews prior to June 2023. Although Mrs X’s complaint to the Council contains various issues dating back to 2019 she confirmed that it is from June 2023 onwards that she would like investigating. In any case events prior to this are late as it was reasonable for Mrs X to have complained to us sooner about those events.
11. I have investigated Y’s education and any loss of provision from June 2023 up to July 2024. From September 2024 Y had alternative provision in place and that period is after the scope of Mrs X’s complaint to the Council. If Mrs X has concerns about Y’s provision from September 2024 onwards she should make a new complaint.
12. I have used my discretion to investigate annual review delays to date. This is because there is evidence of ongoing injustice.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. 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

Relevant law and guidance

Education, Health and Care Plans

15. 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.
16. The EHC Plan is set out in sections which include: 
• Section B: 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 educational placement. 
17. 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).

Annual Reviews

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

EOTAS

For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is often referred to education otherwise than in a school (EOTIS), sometimes known as EOTAS

Alternative provision and the Section 19 duty

19. 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.
20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).

The Local Authority Designated Officer (LADO)

21. The Local Authority Designated Officer (LADO) is a person responsible for managing and overseeing investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.
22. The LADO is responsible for:
• providing advice, information and guidance to employers and voluntary organisations around allegations and concerns regarding paid and unpaid workers.
• Managing and overseeing individual cases from all partner agencies.
• Ensuring the child’s voice is heard and that they are safeguarded.
• Ensuring there is a consistent, fair and thorough process for all adults working with children and young people against whom an allegation is made.
• Monitoring the progress of cases to ensure they are dealt with as quickly as possible.
• Recommending a referral and chairing the strategy meeting in cases where the allegation requires investigation by police and/or social care.
23. The LADO is involved from the initial phase of the allegation through to the conclusion of the case.  
24. There are a range of outcomes from LADO investigations which include:
• Substantiated: There is enough evidence to prove the allegation is true.
• Unsubstantiated: There is not enough evidence to either prove or disprove the allegation. This does not imply guilt or innocence.
• Unfounded: There is no evidence to support the allegation, or the evidence proves the allegation is untrue.
• False: There is sufficient evidence to disprove the allegation.
• Malicious: There is clear evidence that the allegation was deliberately made to deceive or cause harm to the person subject of the allegation.

What happened

25. The following is a summary of events and does not include every detail about what happened.
26. Mrs X has a child, Y who in 2023 was of primary school age but due to transition to secondary education from September 2023. Y has special educational needs and an EHC Plan which outlines the specialist provision they require. Y has autism and ADHD (Attention-Deficit/Hyperactivity Disorder). They also have anxiety issues and require significant Occupational Therapy input.
27. Y’s primary school held an annual review in June 2023 in preparation for their transition to secondary school. The Council sent an amendment notice in July 2023 followed by draft Plans. Y began attending secondary school at School 1 in September 2023.
28. The Council issued Y’s amended final Plan in November 2023 which named School 1, a mainstream secondary school. This was a delay of 10 weeks. Upon receiving the EHC Plan Mrs X noticed lots of information was missing and it contained old information. Mrs X said she had told the Council about these errors during the draft stage but she was ignored. The Council agreed to hold an emergency annual review to rectify the errors.
29. Records show Mrs X raised concerns about incidents which had happened at School 1 involving Y which had led to suspensions and fixed term exclusions. Mrs X reported them as safeguarding incidents to the Council, including one where she alleged Y was assaulted by a member of staff. Mrs X complained about the incident to both the Council and School 1.
30. The Council held the emergency review in February 2024. This had been arranged for December 2023 but was adjourned with Mrs X’s agreement due to the school holidays. It noted Y was not attending school at present due to various factors including some safeguarding incidents. School 1 felt the placement had completely broken down.
31. Y was excluded twice more in February 2024 after which they stopped attending School 1 completely in March 2024.
32. Due to the seriousness of the allegations the Council held a multi-agency meeting led by the LADO. Records show the incident was also passed to the police who decided to take no further action. The LADO considered the circumstances and the available evidence and concluded the allegation was unfounded. The LADO decided the matter did not meet the threshold for any further action.
33. Following the February 2024 annual review the Council sent Mrs X an amendment notice in April 2024. Y remained out of school with no provision in place other than access to an online curriculum designed for independent learning which School 1 provided access to.
34. Records show that Y remained out of school for the rest of the academic year. During this period Mrs X requested packages of alternative provision. School 1 also requested it be removed from the EHC Plan as it could no longer meet Y’s needs.
35. Mrs X complained to the Council in July 2024. The complaint was extensive and covered multiple areas and strands which went back many years. Much of the elements of complaint do not form not part of my investigation. The main points of complaint relevant to this investigation were:
• A paperwork/IT error led to Y’s EHC Plan containing inaccurate and old information when they transition to School 1. Mrs X said had School 1 had the up to date information it would never have said it could meet Y’s needs, which ultimately left Y at risk.
• Delay following the June 2023 annual review.
• Missed opportunities to investigate her safeguarding complaints. Mrs X did not believe the Council carried out any investigations.
• Delay holding the emergency annual review until February 2024 and had not issued an amended EHC Plan since.
• Failure to ensure Y received a suitable education since they were no longer able to attend School 1 from March 2024.
36. The Council responded to Mrs X at stage one of the complaints procedure in August 2024. The Council accepted delays following the June 2023 annual review and accepted Y’s EHC Plan was not adequately updated which meant another review was needed. It also accepted that it delayed taking Y’s case to its decision making panel to decide whether to put alternative provision in place. It confirmed an agreement had now been made for some tuition to be put in place. It blamed a high number of cases for the delay and said it had undertaken a significant recruitment drive to ensure casework is completed in a timely manner. The Council said it had considered the safeguarding concerns and was satisfied it had followed relevant policy in deciding to take no further action.
37. Y began receiving an alternative provision package from September 2024. This consisted of 15 hours a week tuition of maths and English which Mrs X said is working well albeit she said Y should be receiving tuition in other subjects also.
38. Mrs X escalated her complaint to stage two in October 2024. Due to the length and complexity of Mrs X’s request the Council asked for clarity before it would consider it further. Unhappy with this, Mrs X complained to us. We advised the Council to respond to Mrs X’s complaint as it understood it.
39. The Council responded to Mrs X at stage two of the complaints procedure in December 2024. It understood Mrs X’s complaint to be about failures around Y’s education and the LADO’s involvement in the safeguarding issues. It reiterated its acceptance that Y had not had accessible education and about annual review delays. It said the decision not to further investigate the safeguarding matters were a professional decision. The Council said the safeguarding matters were more appropriate for the school and Ofsted to deal with.
40. The Council said it held another annual review in December 2024 and was planning to take Mrs X’s request for an EOTAS (Education Otherwise than at School) package to the decision making panel. To date, however, the Council has not issued an amended EHC Plan for Y which means the November 2023 Plan is still the most current.
41. Mrs X remained unhappy and asked us to investigate.

The Council’s response to us

42. The Council said it had found it difficult to communicate with Mrs X who had sent in complaints of significant length. It said it carried out another annual review in December 2024 and was currently submitting the case to its decision panel following Mrs X’s request for EOTAS. Y remains on the alternative provision package which started in September 2024.
43. The Council reiterated that Mrs X’s safeguarding allegations did not meet the criteria for further investigation. It said it received the allegations via Ofsted where the concerns were raised directly. The Council held a meeting and decided there was no role for the Council as the allegation was unfounded.

My findings

Education and annual reviews

44. The Council carried out Y’s annual review in June 2023. In line with statutory timescales it should have then issued the final EHC Plan by mid-September 2023. It did not do so until November 2023 which was a delay of ten weeks. When it did issue the final Plan it was not complete or accurate and contained some old information which the Council accepted was its fault. All of this was fault. It caused some distress and frustration for Mrs X as well as uncertainty around whether School 1 would have agreed to be named on Y’s EHC Plan had it had the correct information. It meant Y began attending School 1 with an EHC Plan that was on balance not fit for purpose and this impacted on Y’s progress and development.
45. Although Y attended School 1 from September 2023 they began struggling, receiving numerous suspension and fixed term exclusions. This resulted in the placement breaking down in March 2024 where it appears School 1 refused to accept Y back. On balance, at this point it was not reasonably practicable for the child to access School 1 so the Council should have considered its Section 19 duty then. The Council has accepted a delay in taking Y’s case to its decision making panel for alternative provision which meant the provision did not start until September 2024. This resulted in Y not receiving any education or the provision in their EHC Plan between March and July 2024. That was fault. Mrs X has indicated Y is doing well with the current alternative provision but it is not clear whether the provision is sufficient or whether it has had oversight from the Council. As explained above it is open for Mrs X to make a new complaint if she has concerns about the provision in place since September 2024 as this falls outside the scope of this investigation.
46. Following the EHC Plan issues the Council agreed to hold an emergency annual review, however it delayed this taking place until February 2024. That delay was fault. The Council agreed to amend Y’s EHC Plan following this review but to date, no amended final EHC Plan has been issued, despite a further annual review being held in December 2024. That is a delay of 16 months and the delay is ongoing.
47. The annual review delays have caused both Y and Mrs X an injustice which is ongoing. Y remans without an accessible school placement (albeit with alternative provision in place) and has an out of date EHC Plan dating back to 2023. The delay in issuing an amended EHC Plan has also denied Mrs X’s right of appeal to the SEND tribunal.
48. Since the start of this investigation we have made recent service improvement recommendations to this Council around EHC Plans and alternative provision. These include:
• Reminding relevant officers of the Council’s statutory duty around both Section 42 and Section 19 to ensure alternative provision is arranged as soon possible.
• Reviewing its policies and procedures to ensure it retains oversight of its Section 19 duties.
• Producing an action plan for how it can better monitor failings in both the delivery of EHC Plans and alternative provision.
49. Given the above I have not made further recommendations around its delivery of special educational provision and alternative provision and we will monitor compliance of the above through our casework.

Safeguarding allegations

50. Mrs X does not believe the Council carried out its duty to investigate her safeguarding allegations. I have seen the Council’s records, the LADO notes and records of a meeting between Council officers and School 1 which the Head Teacher and governors attended. I am satisfied the Council considered the allegations in line with relevant policy. It considered witness statements, information from Mrs X, evidence from School 1 including CCTV and decided the allegation was unfounded and therefore took no further action. There was no fault in how the Council considered Mrs X’s allegation.

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Action

51. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £300 to recognise the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y’s amended EHC Plan following annual reviews and the impact on Y’s education during the 2023/24 academic year.
2. Pay Mrs X £3000 to acknowledge the impact on Y’s education during the 2023/24 academic year caused by the erroneous EHC Plan and the delay putting alternative provision in place between March and September 2024.
3. Take Mrs X’s EOTAS request to the decision making panel and Issue Y’s amended EHC Plan without further delay.
4. Provide an action plan around how the Council intends to improve its processes around Education Health and Care Plan annual reviews to ensure it amends Plans within statutory timescales.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman