Summary: Miss X complained the Council incurred delays in securing a specialist education placement for her son. She says the Council has failed to provide a placement resulting in her having to continue to provide home school education. Miss X says the Council’s actions have caused avoidable distress to her and her family. She says her son has also missed out on receiving education at a specialist setting. We found fault by the Council. The Council has agreed to provide Miss X with an apology and a financial remedy, and to issue a final Education, Health and Care Plan within one month of this decision.

The complaint

1. Miss X complained the Council incurred delays in securing a specialist education placement for her son. She says the Council has failed to provide a placement resulting in her having to continue to provide home school education. Miss X says the Council’s actions have caused avoidable distress to her and her family. She says her son has also missed out on receiving education at a specialist setting. Miss X would like the Council to find a specialist education placement for her son as soon as possible.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
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. 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)

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What I have and have not investigated

5. The period of my investigation is from August 2022 to December 2024.
6. I have exercised discretion to investigate Miss X’s complaint from August 2022 because this is when the Council carried out an annual review of Miss X’s son’s Education, Health and Care Plan. My investigation does not cover the period after December 2024 because this period is after the Council’s final complaint response.

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
9. 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 found

Education, Health and Care Plans

10. A child or young person with special educational needs (SEN) 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. 
11. 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 of Practice paragraph 9.176) 
12. Where the decision is to amend the EHC Plan, councils must issue a final amended Plan within eight weeks of the ‘Amendment Notice’, (the council’s notification of its decision to amend the Plan). Therefore, a final Plan must be issued within 12 weeks of the review meeting.
13. The First-tier Tribunal (Special Educational Needs and Disability) (SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
14. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.
15. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent, or a final EHC Plan has been issued.

What happened

16. This chronology includes key events in this case and does not cover everything that happened.
17. Miss X’s son, Y, has had an EHC Plan since 2018. Miss X began providing home education to Y in 2019.
18. On 26 March 2021, the Council issued a final EHC Plan to Y. The Plan specified elective home education as the type of educational placement.
19. The Council carried out an annual review of Y’s EHC Plan on 26 August 2022. Miss X asked the Council to change the type of educational placement and to make specialist provision for Y.
20. On 1 September 2022, the Council wrote to Miss X and told her it had decided to amend Y’s EHC Plan. It issued a draft amended EHC Plan and told Miss X it was taking Y’s case to the Council’s SEN panel to consider the request for specialist provision. The Council said it would let Miss X know about the outcome as soon as possible.
21. In February 2023, Miss X asked the Council for an update. The Council replied and told Miss X it would consider Y’s case at the SEN panel in March 2023. At about the same time, the Council sent a consultation letter to Miss Y’s preferred education setting.
22. Shortly after, the Council received notification from the education setting that it could not offer a place to Y.
23. In April 2023, Miss X asked the Council for an update. The Council told Miss X it did not have enough information to agree a specialist setting; it said a further annual review was required.
24. In August 2023, the Council received an Educational Psychologist’s assessment regarding Y. The assessment recommended specialist provision for Y.
25. The Council carried out an annual review on 22 September 2023. It acknowledged Y had expressed that he wanted to go to school, and that Miss X had requested a specialist setting.
26. Shortly after, the Council wrote to Miss X to inform her it would amend the existing EHC Plan. The Council said it was considering Miss X’s request to change the educational setting at its SEN panel, and that it would get back to her in due course. The Council also issued a draft amended EHC Plan.
27. The Council’s SEN panel considered and agreed to Miss X’s request for a specialist placement on 11 October 2023.
28. Shortly after, the Council contacted several educational settings and independent specialist placements. The Council received responses stating that none of the settings contacted could offer a placement to Y.

Miss X’s complaint

29. Miss X complained to the Council on 27 June 2024. She said she had been trying to contact the provision lead for Y, but the Council’s officers changed regularly. Miss X said Y had been waiting for a SEN school placement for two years with little contact from the Council. She said the Council had amended the draft EHC Plan but had stopped searching for a school. Miss X complained the Council had let down Y. She said the continuation of home-schooling meant she had had to defer her university course.
30. The Council replied on 24 July 2024. It upheld Miss X’s complaint and acknowledged that at that time, the Council had no active searches in place to find a specialist school placement. The Council said staff changes in its SEN service had led to a lack of communication; it apologised for the poor level of service and offered a financial remedy to Miss X in recognition of the stress and anxiety caused. The Council told Miss X it had appointed a new provision lead to Y’s case and that it would begin another search for a suitable placement.
31. The Council contacted several educational settings and independent specialist placements in September 2024. The Council received responses stating that none of the settings contacted could offer a placement to Y.
32. Miss X complained to the Council again on 14 October 2024. She said the Council had not provided any updates and had made no effort to find a placement for Y. Miss X said this meant she had needed to defer her university course for another year as Y still had no educational placement.
33. The Council replied to Miss X on 22 November 2024 and apologised for not providing effective communication. It said although all the specialist schools and settings contacted had advised they could not meet Y’s needs, this did not mean the Council would stop searching for a placement. The Council said it considered a further annual review was appropriate.
34. Miss X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis – no active searches in place

35. The Council says it agreed a personal budget to support Miss X in arranging provision, including providing a learning resource subscription and funding for outdoor learning opportunities. The Council also says it sent consultations to several maintained specialist settings and contacted additional independent specialist placements. Despite this, the Council says it has received no offers of a placement.
36. I acknowledge the Council’s comments. However, as part of its complaint response to Miss X, the Council confirmed that at the time of her complaint, it had no active searches in place to find a specialist school placement. The Council acknowledged it had closed its search for a placement in April 2024, despite receiving no offers. The Council’s failure to continue to search for a placement contributed to the delay in the EHC Plan review process. This is fault.
37. The Council says it has experienced a high turnover of staff within its SEND team, and that this resulted in Y having four different SEND provision leads since the annual review in August 2022. Whilst I acknowledge the Council’s comments, this does not justify the further delays identified, as explained below.

Delay in carrying out an annual review

38. The Council issued a final EHC Plan for Y on 26 March 2021. The SEN Code says Plans must be reviewed by the local authority as a minimum every 12 months.
39. The annual review of the final EHC Plan dated 26 March 2021 took place on 26 August 2022. This is more than 12 months after the previous review. This delay is fault.

Delay in sending consultations

40. Miss X requested a specialist placement as part of the annual review carried out on 26 August 2022. Miss X named her preferred choice of school at that time. The Council agreed to amend the Plan on 1 September 2022.
41. The SEN Code says if an EHC Plan needs to be amended, the local authority should start the process of amendment without delay. The Council did not send a consultation letter to Miss X’s preferred school until February 2023, six months after the annual review. This delay is fault.

Delay in agreeing a specialist placement

42. The Council agreed to amend Y’s EHC Plan on 1 September 2022. As previously stated, local authorities should start the process of amendment without delay. The Council’s panel hearing to consider specialist placement for Y did not take place until 11 October 2023. This is more than 12 months after the Council’s agreement to amend the Plan. This delay is fault.

Failure to issue a final EHC Plan

43. The Council carried out annual reviews of Y’s EHC Plan on 26 August 2022 and 22 September 2023. As stated at paragraph 12, councils must issue a final Plan within 12 weeks of the annual review meeting.
44. The Council confirms it has not issued a final plan following either of the above annual reviews. This demonstrates ongoing, significant delay. The Council’s failure to issue a final EHC Plan within the required timeframe is fault.

Injustice to Miss X and Y

45. Having identified fault, I must consider if this caused a significant injustice. Miss X says the injustice to Y is that he has missed out on education within a specialist setting, and that this has negatively impacted his learning and his social life. Miss X also says the Council’s actions impacted her ability to continue with her university course, resulting in her having to discontinue her studies so she can home-school Y.
46. I acknowledge Miss X’s comments. The fault identified caused an injustice to both Miss X and Y, namely avoidable distress and uncertainty caused by the delays in the EHC Plan process and the lack of named educational setting for Y. I acknowledge Miss X has already received a financial remedy from the Council in recognition of this. However, the Council offered this remedy in July 2024; since then, the Council has still not issued a final EHC Plan and has not secured a specialist placement for Y. The injustice therefore has continued after the financial remedy already provided.
47. The injustice to Miss X is also the frustrated appeal rights regarding the EHC Plan. The Council has not issued a final Plan despite the reviews in 2022 and 2023. As a result, Miss X is unable to appeal to the Tribunal regarding any disagreement with the school/placement named in the Plan, or that no school or other placement is specified.

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Action

48. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Miss X and Y for the fault 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;
2. Issue the final Education, Health and Care Plan for Y;
3. Make a further symbolic payment to Miss X in recognition of the distress, uncertainty and missed opportunity caused by the delays identified. The Council has agreed to my recommendation of a payment of £500, and
4. Share the final decision statement with the Council’s special educational needs officers and remind them of the Council’s requirement to carry out and complete annual reviews in accordance with the Code of Practice.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I have found fault causing injustice. The Council has agreed to take the above actions to address the injustice and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman