The Investigation

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with an education and deliver the provision in their Education, Health and Care (EHC) Plan until the EHC Plan ended in September 2024. She says this has caused her family distress and frustration and Y has missed out on an education. She wants the Council to compensate her family and apologise.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

3. 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)

4. 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.

5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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).

The Law

7. 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 First-tier Tribunal (Special Educational Needs and Disability) which we call the Tribunal in this report or the council can do this.

8. 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)

9. 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.

10. 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)

11. 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.

12. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parents 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. (R (L, M, and P) v Devon County Council [2022] EWHC 493 (Admin))

13. If the child’s parents or the young person disagree with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

14. 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.

What we have and have not investigated

15. Part of Mrs X’s complaint is late. This is because it concerns Council actions that she was aware happened more than 12 months before she complained to us. We have not investigated events before May 2023. It was open to Mrs X to complain to us sooner about events before that date and we consider it was reasonable for her to have done so.

16. We have exercised discretion to investigate events from May 2023, which is slightly more than 12 months, as we consider there was injustice within 12 months of Mrs X complaining to us, which stemmed from the final EHC Plan issued in May 2023.

17. We have investigated events up to September 2024 when the Council ceased to maintain (ended) Y’s EHC Plan.

How we considered this complaint

18. We have produced this report following the examination of relevant files and documents.

19. We gave Mrs X and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

Events before the period of investigation

20. Mrs X and Y moved to the Council’s area in 2021. Y had an existing EHC Plan. The Council consulted with several settings who all said they could not meet Y’s needs. The Council arranged home tuition for Y, but this ended after a few weeks as Mrs X said it was not adequate.

21. The Council found out Y’s tuition had ended in November 2022 and carried out an interim review of Y’s EHC Plan in December 2022. It agreed to reassess Y. In March 2023 it issued a revised EHC Plan naming a college for Y to attend from September 2023. Mrs X disagreed with the college.

22. In April 2023 the Council issued a revised draft EHC Plan saying it recommended a specialist college for Y from September 2023 and consultations were continuing. Mrs X provided her comments on the draft Plan. Y was still not receiving any home tuition or education at school. Y was no longer of statutory school age in June 2023.

What happened

23. On 24 May 2023 the Council finalised Y’s new EHC Plan. The Council amended Y’s provision from the college named in March 2023 to Education other than at school (EOTAS). It recommended Y transfer to specialist post-16 provision in September 2023 and said consultations remained ongoing.

24. The Plan specified Y’s learning should be in small groups or individually. Teachers should use visual aids, ICT packages and adapt their teaching style and curriculum to account for Y’s learning and communication difficulties. The Plan said, in the short term, Y should be able to progress to a recognisable post-16 education setting in September 2023. It said in the long term (once at a post-16 setting) Y should have made measurable progress in numeracy and literacy, as well as being able to maintain focus, be able to verbalise their emotions and adapt to everyday changes.

25. In June 2023 the Council emailed Mrs X a letter. It said the letter followed an annual review “held on 6 May 2023”. 6 May 2023 was a Saturday. It said Y’s school had identified a small number of developments, but it had decided not to amend Y’s EHC Plan. In the covering email, the Council said it had closed the review as “no change” because the legal timescale for it to hold the review had passed. It said it would now organise an interim review so it could make any updates to the EHC Plan.

26. On the same day the Council sent Mrs X a second letter with the amended final EHC Plan dated 24 May 2023. There is no record of the Council trying to secure the EOTAS provision specified in Y’s Plan.

27. In June 2023 the Council consulted with several specialist post-16 placements who all said they could not meet Y’s needs. There is no record of the Council seeking alternative placements. The Council visited Y and Mrs X in July 2023 and reported no concerns for Y’s welfare. Y did not transfer to a post-16 specialist college in September 2023.

28. Almost a year later, in May 2024, the Council contacted Mrs X to ask about Y’s post-16 plans that should have begun in September 2023. The Council’s records show it recorded an annual review on 6 May 2024, but the review paperwork also said Y’s annual review was due. Mrs X responded to the Council’s email on Y’s post-16 plans. She said she wanted Y to have a residential placement with a specialist college from September 2024. The Council consulted with the preferred college. The college said it could not offer a residential placement and Mrs X withdrew her application.

29. In early June 2024 the Council wrote to Mrs X following “the annual review held on 6 May 2024”. The letter was identical to the letter sent in June 2023. It again said Y’s school had identified a small number of developments, but it had decided not to amend Y’s EHC Plan. Mrs X contacted the Council to say Y had not had an annual review and could not understand how Y’s school had contributed when Y was not attending school or receiving any education at all. She said Y’s last annual review was in December 2022.

30. The Council responded saying the letter issued was a standard letter which the Council issued to meet its statutory obligation to record a decision before the deadline for Y’s annual review. It said it had tried to get in touch with Y’s parents to arrange the review.

31. The Council held an interim review meeting in mid-June 2024. The records of the review meeting show Y’s parents attended with a SEN caseworker from the Council. Y’s parents said they felt let down by the Council. Mrs X said she felt she had to end Y’s EHC Plan. The record of the review shows Y had not met any of the outcomes in their EHC Plan.

32. In early July 2024 the Council wrote to Y asking if they had any plan to return to education. Mrs X responded saying she was uncomfortable with the wording in the letter. She said it did not reflect the family were only suggesting ending the EHC Plan due to the Council’s lack of action. She said they had always wanted Y to complete their education, but the Council had not made this possible.

33. In mid-July 2024 the Council’s SEN Panel agreed to end Y’s EHC Plan. Mrs X complained to the Council on 16 August 2024. She said the Council had failed to deliver the provision in Y’s EHC Plan over several years and failed to consult with suitable post-16 provision. She confirmed she wanted to end Y’s EHC Plan.

34. The Council responded on 9 September 2024. It accepted it had failed to provide Y with an education up to December 2022 and offered Mrs X £2,400. This offer relates to events that occurred outside the period of our investigation.

35. In mid-September 2024 the Council wrote to Y confirming it had agreed to end their EHC Plan. Mrs X asked the Council to escalate her complaint to stage two of its complaints process. She said Y had missed more education after December 2022. The Council responded in October 2024. It did not accept Y had missed more education and repeated its offer of £2,400. Mrs X remained unhappy and complained to us.

36. Following our enquiries the Council offered Mrs X £5,400 to recognise the impact of Y’s missed education up to July 2024. This was six terms of education and special educational needs provision and equates to £900 a term. The Council also confirmed to us that it issued 99 annual review letters between July 2024 and May 2025 that referred to annual reviews where a review meeting and consultation did not take place.

37. The Council also said it had started to review its annual review processes, including training for SEND casework staff and strengthening its oversight processes, including the decision letter. It added that it carried out over 95.66% of annual reviews as expected between July 2024 and May 2025 which is greater than the national average of 86.5%. It believes it has already acted decisively to implement improvements, enhance compliance, and strengthen data integrity. It said the failures we identified in this case occurred within the context of national pressures on the SEND system.

Conclusions

Y’s SEN provision

38. Y’s EHC Plan from May 2023 said Y must receive EOTAS and included tailored special educational support to meet their significant learning difficulties. The Council had a duty to secure the provision in Y’s EHC Plan. There is no evidence of the Council trying to secure any special educational provision or EOTAS package for Y during this time. This was fault. Because of this, Y missed three and a half terms of their SEN provision and education from May 2023 to July 2024. This also caused Mrs X a prolonged period of uncertainty and distress.

39. We typically recommend between £900 and £2,400 a term to recognise lost educational provision. The Council has offered Mrs X £5,400 to recognise the impact of six terms of missed education from September 2022 to July 2024. This is £900 a term.

40. We are investigating the period from May 2023 to July 2024. We have recommended £2,400 a term for the missed special educational provision while Y was of statutory school age (May 2023 to July 2023). We have recommended £1,500 a term when Y was not of statutory school age (September 2023 to July 2024), as the evidence shows the Council was planning a specialist post-16 college for Y and had set out the long-term outcomes for Y of post-16 college and support. This is in line with our guidance on remedies. This is £5,700 for three and a half terms of missed education for the period we have investigated.

41. We cannot make a recommendation for the period up to May 2023 as it is outside the period of this investigation. The Council has agreed to repeat its offer of £900 a term for the period up to May 2023. This is an additional £1,800.

Y’s annual reviews

42. Annual reviews ensure a young person’s EHC Plan is up to date and the special educational provision in the Plan remains suitable. It also allows councils to check the special educational provision set out in the EHC Plan is in place or if a change is needed in the educational provider.

43. The Council was under a duty to arrange for Y’s EHC Plan to be reviewed at least every 12 months. The Council carried out an interim review of Y’s EHC Plan in December 2022. It did not carry out another review that followed the procedure set out in the Regulations and the Code, until June 2024. This was fault and caused Mrs X and Y a period of uncertainty and distress over whether the EOTAS provision in section F of Y’s EHC Plan remained adequate to ensure Y achieved their educational outcomes. The family were not clear about what post-16 provision would be offered from September 2023. It meant Mrs X’s and Y’s views were not heard. It also meant the Council missed several opportunities to be reminded that it had failed to put in place provision for Y from May 2023, despite amending the EHC Plan to say Y should receive EOTAS and should attend a specialist post-16 provision from September 2023.

44. The Council sent Mrs X two letters on the same day in June 2023, one saying it was not amending Y’s Plan and the other with an amended copy of the Plan. This was fault and caused Mrs X further uncertainty and frustration.

45. The Council noted Y’s annual review as being due in May of each year. The Council sent Mrs X annual review outcome letters in 2023 and 2024 even when it had not ensured an annual review meeting had taken place where the views of the family and the education provider could be aired and considered. The Regulations are clear that a review meeting must take place.

46. The Council told Mrs X it sent the letters to ensure it complied with its statutory duties. The Council’s duty is to hold an annual review. It cannot meet this duty by sending an outcome letter with no proper review taking place. The letters untruthfully said annual review meetings had taken place on 6 May 2023 (a Saturday) and 6 May 2024. This was fault. Because of this, the Council noted Y’s annual review as complete. It was unaware the reviews still needed to happen, and Y continued to receive no education or the SEN provision they were entitled to.

Impact on Y and Mrs X

47. Y should have received EOTAS and the provision set out in section F at home, and on the balance of probabilities a specialist post-16 college place. The Council should have reviewed that provision at least every 12 months. Instead, the Council referred to input from a school that Y never attended, and annual reviews that never took place. When a review meeting did take place, Mrs X said she felt let down. She said the Council had not only given Y a lack of support, but a lack of hope. We cannot say how Y would have responded to the EOTAS and post-16 provision they should have received, but the Council’s failings have caused Mrs X and Y severe distress, frustration and uncertainty and denied Y opportunities to have their special educational needs met.

Others affected

48. The Council has confirmed it issued 99 annual review outcome letters between July 2024 and May 2025 for annual reviews that did not take place. This was fault. In the absence of an annual review the Council has no idea whether EHC Plans remain suitable, or the provision is in place. The SEN Code of Practice says reviews are used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. The Council’s approach means that while on paper it appears it is meeting its obligations, in reality it is unaware of the progress of nearly 100 of the young people it is responsible for.

Recommendations

49. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

50. In addition to the requirements set out above, the Council has agreed to carry out the following actions to remedy the injustice identified within three months of the date of this report.

• Apologise to Mrs X and Y for the failings identified. 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.

• Pay Mrs X £5,700 to recognise the impact of four and a half terms of missed education on Y, between May 2023 and July 2024.

• Pay Mrs X £200 to recognise the frustration caused by issuing decision letters to annual reviews that did not take place.

• Write to the 99 families it has identified as not having an annual review to explain what it did wrong and apologise. It should also invite those with concerns about their child’s provision to contact it and consider whether an interim review is necessary.

51. Within three months of the date of this report the Council has agreed to take the following actions to improve its services in future.

• Develop an action plan which aims to ensure that every child/ young person has an annual review every year. The Council should set out specific actions, timescales and any additional resources required to achieve this statutory requirement as quickly as possible. The action plan should be agreed by the relevant Council committee and progress should be monitored by that committee as well as senior officers. This should include ensuring that annual review outcome letters are only issued when a review meeting has taken place.

• Review its procedures for delivering EOTAS provision in EHC Plans, to ensure it properly assesses what provision is required and develops processes to check the provision is in place and act on any concerns.

• Review its processes for finding post-16 placements for young people with EHC Plans to ensure the Council identifies a placement and completes the process within the statutory timescales

• Share a copy of this decision with the relevant committee.

52. The Council will provide us with evidence it has complied with the above recommendations.

Decision

53. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and Y. The Council should take the action identified in paragraphs 50 and 51 to remedy that injustice.

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