Summary: Mrs B complained that the Council, in respect of her child C, failed to provide a suitable full-time education or meet their special educational needs since September 2022. She also complained it failed to carry out annual reviews during this period and delayed excessively in dealing with her complaints about the matter. Based We have found fault in the actions of the Council which caused C to miss out on essential education and Mrs B distress and frustration. We welcome the Council’s recognition of fault and offer of a symbolic payment. The Council has agreed to make a higher payment.

The complaint

1. Mrs B complained that Kent County Council (the Council) in respect of her child, C:
• failed to provide a suitable full-time education or meet their special educational needs since September 2022;
• failed to complete the annual review in 2023;
• continued to misgender C despite repeated requests and
• delayed excessively at both stages in responding to Mrs B’s complaint.
2. C missed out on essential education over a prolonged period and Mrs B experienced distress, frustration and time and trouble.

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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. 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. 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

6. Mrs B complained to us in December 2024. So, the initial scope of the investigation is limited to December 2023.
7. But I have exercised discretion to investigate the complaint from September 2022 when Mrs B complained to the Council for a second time about the lack of a suitable full-time education for D up to December 2024 when Mrs B complained to us. There are good reasons due to the excessive time the Council took to investigate and respond to her complaint through its complaints procedure.

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How I considered this complaint

8. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

Special educational needs

11. 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 council can do this.

Maintaining the EHC Plan

12. 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)  
13. 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. 

Reviewing EHC Plans

14. 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) 

Alternative educational provision

15. 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.
16. 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)

What happened

17. Mrs B’s child C has mental health conditions which affect their ability to attend school. They have had an Education, Health and Care (EHC) Plan since 2018, with the most recent version issued in March 2022. This named School Z in section I, and specific support in school in section F including speech and language therapy (SALT) and occupational therapy (OT). In September 2022 Mrs B complained that C was unable to attend school full-time, did not have a suitable full-time educational provision and had not received the SALT as detailed in the EHC Plan.
18. On 12 December 2022 the Council met with School Z to discuss the provision for C as they were having difficulty attending. The School Z said C had not been in school for some time and had missed almost all of the key stage four curriculum. The school had offered tutoring and was on the waiting list for a provision with counselling and mentoring services. C was waiting for support via the child and adolescent mental health service (CAMHS). Mrs B enquired about requesting education other than at school (EOTAS). The Council explained she could request this at an Annual Review with evidence that C could not attend any education setting and then a panel would consider it. The Council agreed to share this information with colleagues
19. School Z introduced a short term reduced timetable of 11 hours a week in January 2023 when C’s attendance was only 1.18%. This was to support C’s mental health to build towards more regular attendance with family support. The arrangements were reviewed every two weeks and by the beginning of March 2023 C’s attendance had increased to 9%. Maths was going well, they had a weekly session with a mentor and were attending the external provision once or twice a week. The notes record that C’s parents were very happy with their progress. There are no more review sheets after March 2023.
20. The Council has provided provision plans from School Z, covering communication and interaction, cognition and learning, social, emotional and mental health, physical and sensory provision. These plans were created in January 2023 and September 2023, then reviewed in July 2023 and May 2024. The plans said that weekly SALT was provided but School Z did not provide a SALT report. No OT report was provided throughout this period.
21. The plans showed that some short-term targets had been achieved, C had some 1:1 support and small group work in place. Classes were small with a high ratio of teachers to students, teachers were trained in social communication difficulties, equipment to support learning was available and the school was purpose built to meet the sensory and learning needs of students. None of the plans were signed by Mrs B and there was no record that meetings had taken place with her.
22. The Council says an annual review meeting was held in May 2023, but no further action was taken. I have not seen a report of this meeting.
23. The Council responded to Mrs B’s complaint at stage one of its complaints process on 13 June 2023. It apologised for the delay in responding and for not providing tuition in 2021. It said it expected School Z to put support in place as C was on the roll there. It said it had responded to Mrs B’s original complaint in February 2022 and post-16 transition would begin in September 2023. The Council said it would ensure a clear plan was put in place in relation to current provision and phase transfers as a matter of urgency.
24. Mrs B escalated the complaint on 20 June 2023 saying:
• the Council was still misgendering C.
• it had failed to carry out annual reviews in either 2022 or 2023 and so there had been no opportunity to change C’s legal name on the EHC Plan.
• the Council had also revealed information about C’s gender to their former school.
25. School Z held an annual review meeting in June 2024. The report of the meeting shows that C took exams in maths and science but still struggled to attend. Mrs B requested a personal budget to cover the cost of future online studies. The meeting recommended maintaining the EHC Plan but not to make any changes.
26. The Council responded to Mrs B’s complaint at stage two of its process on 18 July 2024. It said:
• The Stage 1 response was insufficient.
• There had been an unacceptable delay in responding to the complaint.
• The Council had been late in actioning and processing the annual review in 2023, so Mrs B had been denied a right of appeal. It apologised for this.
• The Council had failed to provide tuition in 2021/22. The Council had a duty to provide a full-time education, and C had received a part-time education in 2022/23 due to their mental health needs, but supplementary tuition and therapies had not been provided.
• The Council would process the outstanding annual review now to provide a right of appeal and ensure direct therapies are provided.
• The Council has made changes to C’s records and added a note to their file to hopefully prevent further misgendering. It apologised for any anxiety caused.
• C was now attending School Z and was in receipt of a suitable post-16 education
• It offered Mrs B a symbolic payment of £3,040 calculated on a partial loss of education plus £250 for Mrs B’s time and trouble.
27. Mrs B complained to us in December 2024. The Council issued an amended EHC Plan in January 2025 addressed to C with a gendered pronoun. Mrs B made another request for an EOTAS package to provide an education for C.
28. In response to my enquiries the Council explained how it had arrived at the figure of £3,040:
• Missed tuition in 2021/22: £450
• Four terms of partial education from March 2022 to June 2023 @£250 per term: £1000
• Failure to process the annual review in 2023 and failure to complete the phase transfer as agreed in the stage one response: £150
• Missed OT for four terms: £1440.
29. The Council also said it had acknowledged and respected C’s request to be recognised as non-binary, on receipt of the change of name deed in 2022 it had changed all the records and amendments had been made since then in the new legal name. The Council’s database has notes to request all correspondence in a non-binary format. It apologised for failing to note a further change to C’s gender in the annual review paperwork in May 2023. It said following the recent supreme court ruling it will be taking advice on formatting EHC Plans with regard to gender identification.
30. The Council accepted fault for not processing the annual review in May 2023 and said this was due to a shortage of casework staff at the time. It offered a sincere apology. It also apologised for the failure to process the June 2024 annual review and the lack of a decision on whether to cease, maintain or amend the EHC Plan.
31. The Council also apologised for failing to progress Mrs B’s request most recently made in January 2025 for an EOTAS package. This was due to the case worker leaving in January 2025. It said it would contact Mrs B in respect of the next stage of C’s education.

Analysis

Suitable full-time education

32. The Council has acknowledged fault in failing to provide a suitable full-time education for C from March 2022 to June 2023. I consider this fault extends up to the point Ms B complained to us in December 2024. There is very little evidence of what the Council did between June 2023 and July 2024 to monitor or assess the education provision (which still appeared to be well below full-time) or to properly assess whether this was all C could manage given their medical needs. It also incorrectly stated in the stage one complaint response in June 2023 that it was the school's responsibility to provide education. The Council said in the complaint response in July 2024 that C was now receiving appropriate education at School Z but did not provide any details.

Annual reviews

33. The Council accepts it failed to complete the annual review process in 2023 and delayed in doing so in 2024. This was fault which denied Mrs B the opportunity to challenge the content of the EHC Plan and highlight the lack of suitable education for C. It also means the Council missed out on monitoring the education as it failed to consider the information provided by School Z on what it was providing and assess if it was suitable.
34. The delay of approximately a term, in 2024 caused further frustration and distress at the repeated failure to provide a suitable education for C.
35. The failure to carry out annual reviews during this period also contributed to the lack of response to Mrs B’s request for an EOTAS package. She first asked about this in December 2022 and was advised to raise it at an annual review. Her first opportunity to do this was in June 2024. There is no record of the annual review meeting in May 2023, so I cannot say whether she raised it here or not. She raised it again in January 2025. The Council has still not responded to the request. This failure to act on the request means Mrs B and C are left with uncertainty as to whether a more suitable education outside of a school setting could have been provided at an earlier point.

Misgendering

36. The Council has accepted it did not always use the correct pronouns for C. I welcome the steps it has taken to improve on its processes, but I note a further error was made in January 2025. This has caused distress to C and Mrs B.

Complaint delays

37. The Council delayed excessively in responding to Mrs B at both stages of its complaints procedure, taking nine months at stage one and 13 months at stage two. This is an unacceptable length of time to wait. It not only caused distress and frustration but prolonged the impact of the identified fault and further missed opportunities to improve the provision for C.

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Action

38. I welcome the offer of a symbolic payment made by the Council. However, I consider a higher amount is appropriate and for a different period to recognise the injustice caused to Mrs B and C.
39. The missed tuition in 2021/22 is outside the period of my investigation (£450) so I will not comment on it.
40. Similarly, the period from March to September 2022 of lost education is outside the period of investigation (one term @£250).
41. So I recommended within one month of the date of my final decision that the Council, in addition to the sums detailed above:
• apologises to Mrs B and C;
• pays Mrs B a total of £5,900:
1. £4,800 (£600 a term for 8 terms between September 2022 and December 2024) for the lack of education, special needs provision and therapies;
2. £300 for the missed opportunity to appeal in 2023 and the delayed opportunity in 2024;
3. £300 for the failure to act on Mrs B’s request for a personal budget or EOTAS package; and
4. £500 for the excessive and repeated complaint delays.
42. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.
43. Despite there being failures in the annual review process, the consideration of alternative educational provision and the complaints process, I have not made any service improvement recommendations because since 1 April 2024 (most recently 8 May 2025) we have made recommendations in 16 complaints covering all these areas. I consider it is reasonable to give the Council the opportunity to implement these improvements rather than repeating them here.

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Decision

44. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman