Summary: Miss X complained the Council did not provide her child, Y, with the provisions contained in her Education, Health and Care Plan. Miss X also complained the Council did not review Y’s Plan and that it poorly communicated with her. The Council was at fault which caused injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained about the Council’s:
1. failure to provide her child, Y, with all the provision set out in section F of her Education, Health and Care (EHC) Plan from 2022. This includes its failure to provide Y with an education other than at school (EOTAS) package
2. failure to review Y’s EHC Plan
3. poor communication with her.
2. Miss X said the matter led to loss of education for Y and it caused significant distress to Miss X and the family.

Back to top

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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says 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)
5. 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.
6. 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)
7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

Back to top

What I have and have not investigated

10. Miss X made a complaint to the Ombudsman in November 2024 which means my investigation should start from November 2023. However, to make a meaningful investigation, I have exercised discretion to investigate matters from May 2023 to November 2024. This covers the period after the SEND Tribunal issued an order and instructed the Council to amend Y’s EHC Plan to when Miss X complained to the Ombudsman.
11. I have not exercised discretion to investigate matters from 2022 and before May 2023 because they are late complaints and there are no good reasons to investigate them now. Also, I have not investigated these matters because where someone has appealed to the Tribunal, the law says the Ombudsman cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal.

Back to top

How I considered this complaint

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

Education, Health and Care Plan

14. 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.
15. Education other than at school (EOTAS) is a package of education which is council-funded and should be in section F of the EHC Plan.
16. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
18. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.
19. 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). 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 and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
20. Once the tribunal issues a decision, the council must carry out the order within a fixed period. Where the order requires the council to amend the special educational provision specified in an EHC Plan, the council shall issue the amended EHC Plan within 5 weeks of the order being made.

Background

21. Miss X’s child, Y, has some health conditions and some special educational needs. Y has an Education, Health and Care (EHC) Plan.
22. Following Y’s EHC Plan annual review and a SEND Tribunal hearing in 2022, the Tribunal issued an order which instructed the Council to include an education other than at school (EOTAS) package in Y’s EHC Plan.
23. The Council said it sent an email to Miss X in August 2022 to confirm it agreed to provide Y with 15 hours EOTAS tuition. The Council commissioned and provided 15 hours per week EOTAS tuition to Y from October 2022.
24. On 4 April 2023, another Tribunal order was issued which directed the Council to amend Y’s EHC Plan. This included section F of Y’s Plan.

Key events

2023

25. On 18 May, the Council sent a letter to Miss X with a copy of Y’s amended EHC Plan as a result of the Tribunal order. The provisions in section F included:
1. Y will access an EOTAS package as follows:

• direct tuition of 15 hours per week, provided by a teacher who is experienced in teaching young people with autism
• one hour of play therapy per week
• one hour of swimming
• one hour session of speech and language therapy every 3 weeks during school term time only by a qualified therapist.
2. a high level of adult modelling and mediation to develop communication and interaction with peers.
3. visual timetable and daily structured activities for 10 minutes, 5 times weekly to encourage and promote prosocial skills.

26. Y continued to receive the 15 hours per week EOTAS tuition.
27. In July, the EOTAS provider informed Miss X that Y’s tutor would no longer be available to provide the agreed package from September and that it hoped to introduce another EOTAS tutor to Y.
28. The provider informed the Council that Y’s EOTAS tutor had left and that it was unable to secure a new tutor for Y.
29. From September, Y did not receive the 15 hours per week EOTAS tuition.

2024

30. In October, Miss X made a formal complaint to the Council about its failure to arrange an alternative provider/tutor to deliver Y’s EOTAS tuition since September 2023. Miss X also complained the Council failed to provide Y with the other provisions contained in her Plan (swimming lessons and SALT), it failed to conduct Y’s EHC Plan annual reviews and its poor communication with her.
31. In its responses, the Council:
1. said it issued Y’s final EHC Plan with an EOTAS package in May 2023 after a Tribunal order. The Council said it initially provided Y with the EOTAS package, but it was unable to commission an alternative tutor after the initial tutor left their employment.
2. apologised to Miss X for its delays in arranging Y’s EHC Plan annual review. The Council confirmed it would contact Miss X by 8 November 2024 to arrange an annual review, discuss Y’s current educational offer and any further actions to ensure Y accessed the provisions agreed in section F of her EHC Plan.
3. apologised for its poor communication and the distress caused to Miss X’s family.
32. Miss X remained dissatisfied with the Council’s responses, and she made a complaint to the Ombudsman.
33. In response to our enquiries, the Council:
1. acknowledged it failed to provide Y with the provisions set out in her EHC Plan which included the 15 hours EOTAS tuition from September 2023 due to resource issues. It also said it failed to provide Y with a weekly play therapy session and a weekly swimming session.
2. acknowledged it failed to conduct Y’s EHC Plan annual reviews and confirmed it did not contact Miss X on 8 November 2024 as stated in its complaint response.
3. proposed some recommendations to acknowledge the distress caused to Miss X and Y. These included:

• an apology
• an offer of £8,000 financial remedy for Y’s missed provision
• a further offer of £1,500 financial remedy for distress and frustration caused by its failings and poor communication with Miss X
• to commission an educational psychologist to assess Y’s needs
• to arrange an urgent annual review meeting of Y’s EHC Plan.

Analysis

34. The Council issued the post-tribunal amended EHC Plan on 18 May 2023 to reflect the agreed provisions contained in Section F of Y’s EHC Plan. This was a delay of nine days which meant the Council did not issue Y’s amended Plan within 5 weeks of the Tribunal order being made. This was fault but I consider it caused no significant injustice to Y and Miss X.
35. Councils have a legal duty to secure all the provisions in Section F of an EHC Plan. In this case, the Council failed to discharge its duty under Section 42 of the Children and Families Act 2014 to provide Y with the provisions in her EHC Plan as follows:

• 15 hours per week EOTAS tuition from September 2023 to November 2024. This was because Y stopped receiving the tuition in September 2023 due to the Council’s failure to commission an alternative EOTAS tutor for Y.
• other provisions under Section F from May 2023 to November 2024.

36. This was fault and it meant Y lost out on education, specialist support and provision to meet her special educational needs over a significant period. It also caused Miss X distress, worry and frustration.
37. Furthermore, councils must arrange, and review EHC Plans at least once a year (within 12 months of the last review or of the date the EHC Plan was first issued) to make sure the Plans are up to date and remain appropriate to meet a child or young person’s needs. The last annual review the Council conducted for Y was in 2022. Therefore, I find fault by the Council for its failure to carry out an annual review of Y’s EHC Plan in 2023 and 2024. This caused uncertainty to Miss X in not knowing whether Y’s identified needs during the 2022 annual review remained the same and that her needs continued to be appropriately met.
38. The Council accepted its failings as identified above and its poor communication with Miss X. I consider these were faults and caused Miss X distress and frustration. I also note the Council proposed some recommendations to acknowledge the injustice caused to Y and Miss X by its faults. These are welcome and I find they are proportionate to remedy the injustice caused to Y and Miss X in line with our guidance on remedies. And although the £1,500 financial remedy offer to acknowledge the distress and frustration caused by its failings and poor communication with Miss X is at the higher end of what we would normally recommend, I find it is an appropriate remedy.
39. We have recently made service improvement recommendations to the Council in other decisions about its duty to provide the provisions set out in EHC Plans without delay, its duty to carry out EHC Plan annual reviews and how it will improve communication with parents. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made any service improvement recommendation in this case. These identified issues are already being addressed through other cases we have investigated.

Back to top

Action

40. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Miss X and Y to acknowledge the injustice caused to them by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• arrange the educational psychologist assessment the Council has committed to undertake, to assess Y’s special educational needs and conduct an annual review of her Education, Health and Care Plan. Ensure a decision to maintain, amend or cease to maintain is issued to Miss X, with her appeal rights explained
• make a payment of £8,000 to Miss X on behalf of Y to acknowledge the loss of education other than at school package and other provisions set out in Y’s Education, Health and Care Plan caused by the Council’s failure to discharge its duty under section 42 of the Children and Families Act 2014. This is calculated at £1,600 per term for five terms (from May 2023 to November 2024) in line with our guidance on remedies
• make a symbolic payment of £1,500 to Miss X as offered by the Council in recognition of the distress, worry, uncertainty and frustration caused to her by the Council’s fault as identified above.

41. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

42. I find fault by the Council causing injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman