Summary: Miss X complained the Council failed to finalise the annual review of her daughter, Y’s, Education, Health and Care Plan. Miss X also says Y has not been receiving education. We have found fault in the actions of the Council for delay in finalising the annual review process of Y’s Education, Health and Care Plan and for failing to provide Y with appropriate education. The Council has agreed to issue Miss X with an apology and pay a financial remedy.

The complaint

1. Miss X complained the Council failed to finalise the annual review of her daughter, Y’s, Education, Health and Care (EHC) Plan. Miss X also says Y has not been receiving education.
2. Miss X says this has caused both her and Y distress and for Y to miss educational provision.

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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 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 normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), 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 SEND Tribunal in this decision statement.
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. I have not investigated matters about the placement named in Y’s EHC Plan as Miss X has used her right of appeal to the SEND Tribunal.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the SEND Tribunal can do this.
12. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). 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)
13. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).
14. Where a 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 within four weeks of the annual review meeting (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194).
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196).
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative Provision

17. 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.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

21. The Council issued a final plan for Y in August 2023. Y then started at the specialist provision named in the EHC Plan in September 2023.
22. The placement emailed the Council at the end of January 2024 to say Y was unhappy at the placement and wanted to be back in a mainstream school.
23. The Council asked the placement to do an emergency review in February 2024.
24. Miss X also raised concerns about the placement in March 2024. The Council contacted the placement in March 2024 to ensure it sent work home for Y.
25. The placement completed the emergency review at the end of April 2024 but unfortunately further information was required so another meeting took place towards the end of May 2024.
26. The Council contacted the placement in early July 2024 to say it had not received the paperwork from the emergency review.
27. Miss X emailed the Council in early July 2024 to confirm she had found a place for Y at a provision offering hair and beauty training. Miss X also confirmed she would not be sending Y back to the provision named in her EHC Plan from September 2024.
28. The Council received the finalised annual review paperwork in late July 2024.
29. Miss X complained to the Council in early August 2024 about not receiving any contact from it.
30. The Council advised Miss X it could not name the hair and beauty provision in Y’s EHC Plan. It said it would have to name a different placement which could then liaise with the hair and beauty provision.
31. A further review meeting took place in September 2024 to get Y’s views on her aspirations. The placement provided this documentation to the Council in late September 2024 and said it would continue to provide work for Y.
32. The placement told the Council in early October 2024 that Miss X did not wish for Y to remain on roll with it and it had to respect her wishes. The Council began consultation with other settings.
33. Miss X provided the Council with details of Y’s aspirations for the future in early October 2024.
34. Miss X raised a complaint with the Council in early October 2024 and said she was unhappy the Council had not finalised Y’s annual review. She also said she had received little contact from the Council and that Y was missing out on education.
35. The Council spoke to Miss X about her concerns in mid-October 2024 and agreed actions to move the matter forward.
36. Miss X contacted the Council in late October 2024 to ask for a meeting as it had not completed actions it agreed to. The Council responded to provide an update and confirm it was awaiting information.
37. The Council issued a letter to Miss X in early November 2024 to say it intended to amend Y’s EHC Plan. It also issued a complaint response which acknowledged the delays in issuing Y’s EHC Plan following the emergency review.
38. The Council received an offer of a placement for Y in early November 2024 and issued a draft EHC Plan.
39. The Council accepted the placement offered in January 2024, but Miss X was unhappy with this. The Council told Miss X it would issue Y’s plan, and she could appeal.
40. Miss X raised a further complaint in February 2024 and explained she was unhappy the Council still had not issued Y’s EHC Plan.
41. The Council issued Y’s EHC Plan in early February 2025.
42. Y’s new placement started in March 2024.
43. I understand Miss X has now appealed the placement named in Section I of Y’s EHC Plan.

Analysis

Education, Health and Care Plan

44. Following the emergency review meeting which took place in April and May 2024 the Council failed to issue a letter explaining whether it intended to cease, amend or maintain Y’s EHC Plan. The Council should have issued this within four weeks but did not issue it until November. This is fault.
45. The Council then did not issue Y’s final EHC plan until February 2025 which is well outside the 12-week timeframe from review to issuing the final plan. This is fault.
46. Overall, there has been around a six-month delay in issuing Y’s amended EHC Plan.
47. Miss X chased the Council throughout this time to ask for it to complete the review and for it to issue Y’s EHC Plan. Miss X and Y have been caused distress and uncertainty about what would happen following the review.
48. In addition, the Council has delayed Miss X and Y their appeal rights by the delay in issuing the EHC Plan.
49. The Council to its credit has accepted the delays in issuing Y’s EHC Plan in its response to the enquiries I made.

Alternative Provision

50. The Council was aware in January 2024 there was an issue with Y attending her placement and asked for an emergency review in April 2024.
51. The Council say Y was on-roll at the placement named in her August 2023 EHC Plan and education was available to her up until October 2024. The placement told the Council it was working with Miss X and Y to re-integrate her into school. The placement also said it was sending work home for Y.
52. Miss X told the Council in September 2024 she would not be sending Y back to that placement and it would need to find another placement.
53. The placement removed Y from the roll in October 2024. There is a gap between October 2024 and March 2025 where no provision was in place for Y. This is despite the Council receiving an offer of a place for Y in November 2024. This is fault.
54. The Council to its credit has accepted provision was not available for Y between October 2024 and March 2025 and explained this was likely due to staffing issues. The Council offered to make Miss X a payment of £900 to acknowledge the missed provision.
55. While I welcome the Council trying to resolve the issue, the figure offered is at the lower end of our guidance. In my view, this does not adequately reflect the injustice suffered by Miss X and Y. Y did not receive any provision for just over a term despite a place being available to her.

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Action

56. Within one month of a final decision, the Council should:

• Write to Miss X to apologise for the faults 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 I have recommended in my findings.
• Pay Miss X £350 for the distress and uncertainty caused to her in delaying issuing Y’s amended EHC Plan.
• Pay Miss X £2,000 to recognise the provision Y has missed.

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

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Decision

58. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman