Summary: Mrs X complained the Council failed to deliver special educational provision on her son Y’s Education Health and Care (EHC) Plan. She also complained there was a failure to carry out an annual review. We upheld the complaint. The Council did not complete the annual review process between December 2023 and December 2024 and did not issue a decision letter giving rights of appeal. And, it did not secure all the special educational provision on Y’s Plan. This caused a loss of provision, a delay in appeal rights and avoidable distress. The Council will apologise and make payments to remedy the injustice.

The complaint

1. Mrs X complained the Council failed to meet her son Y’s needs in relation to special educational provision since 2021. She also complained there was a failure to ensure Y’s Education, Health and Care Plan (EHC Plan) was reviewed and amended since 2019.
2. She said this caused avoidable distress and meant Y lost out on educational provision. She said he has fallen behind educationally and this has affected his social and emotional wellbeing as well as academic outcomes.

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The Ombudsman’s role and powers

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. 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)
5. The courts have established that if someone has appealed to the Tribunal or could reasonably have appealed, 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) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
6. 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)
7. 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)
8. 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

9. Ms X complained to us in December 2024. I have investigated December 2023 to December 2024. Matters before then are late complaints, with no good reason for the delay complaining to us. Matters after January 2025 are not within our remit because of the legal case in paragraph five. There was a right of appeal against the Council’s January 2025 decision to maintain Y’s EHC Plan and it was reasonable for Ms X to appeal.

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How I considered this complaint

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

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What I found

Relevant law and guidance

12. 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.

13. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision (SEP) needed by the child or the young person.
• Section I: The name and/or type of educational placement
14. 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 2014). 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)
15. 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. (Regulation 20(10) Special Educational Needs and Disability Regulations 2014 and SEND Code of Practice paragraph 9.176)
16. 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.

What happened

17. Y has SEN and in Year 11. His final EHC Plan of February 2020, issued when he was aged 12 names a type of educational placement (a day special school) and specifies Y will receive:
• 22.5 hours funding for support in class in a mainstream school or
• no additional support in a specialist setting as the SEP will be provided by the school through core staffing already in place
18. Y attended a special school briefly in 2021 and has been receiving 15 hours a week of one-to-one tuition at home since.
19. Section F of Y’s EHC Plan says:
• Y will have specific and measurable communication targets which will be set by the Speech and Language Therapist in conjunction with school staff and parents. The Speech and Language Therapist (SLT)will review targets termly and school staff will embed targets throughout daily activities. Regular opportunities will be provided for Y to work on these so that skills are generalised into a range of situations.
• Y will have an individualised programme to integrate and support these targets throughout the day which will be provided by the Speech and Language Therapist. Suitably trained and competent staff will carry out the activities on a daily basis for a minimum of 10 minutes per session.
• Y will have individual sessions working on specific skills and there will be periods of consolidation to practice and reinforce skills taught in therapy.
• Y will have a structured programme for developing his gross motor (whole body) skills with opportunities to take part in regular, supportive, small group activities. A structured programme for developing his fine motor (hand and writing skills) will be used. Advice already received from the Occupational Therapist will be incorporated into these plans as appropriate.
• Y will have access to 1:1 teaching support and small group learning to enable staff to implement the Occupational Therapy programme within school.
• Y will continue to access the Jump Ahead motor skills group in school at least three times a week and continue to use a multi-sensory approach to develop his handwriting skills.
• Y will have support to encourage his positive social interaction with peers. Y will have adult encouragement to watch and imitate other children in play and to join in familiar play routines or turn-taking activities with them.
• Y will work with an adult and a small group of children on sharing equipment and taking turns in simple games, and then widening this out to include more children.
• Y will be taught play and social skills such as turn-taking, sharing, and entry skills as part of a small group on a weekly basis. There will be daily measures to support Y’s development of social confidence and social interactional skills.
• Y will have regular access (i.e. at least weekly) to targeted support to develop his emotional literacy/emotional resilience. This will be on a one-to-one or small-group basis.
20. There was an annual review meeting in June 2024. Mrs X, Y’s tutor, and the SEND case officer and a manager attended. The minutes noted:
• Most of the outcomes on the Plan needed to be updated.
• The Plan had SLT provision and this had not been delivered.
• The Plan did not reflect his needs.
21. Mrs X used the Council’s complaints procedure in 2024. The Council issued three responses. These said:
• Y’s EHC Plan should have had two annual reviews since the previous annual review in April 2021. The
• There had been a delay responding to her complaint due to a backlog of cases and it was sorry for this and offered a payment of £100 to reflect the avoidable anxiety and distress caused by the delay
• The Council was aware it was failing in its legal duty around annual reviews and this was due to an increase in demand.
• The annual review took place at the start of June
• The poor communication and lack of review caused distress and anxiety
• Communication from the SEND Team was poor and the Council was sorry for this
• The Council was aware of communication problems and delays to EHC Plan delivery
• The stage one response set out the actions the Council would take to complete the annual review and the annual review meeting had taken place.
• The Council would make a payment of £100 to reflect the avoidable distress caused by the delay in issuing a stage two response.
22. There was a meeting in November 2024 with Ms X and the SEND Team. This was not a formal annual review but a meeting to discuss and plan Y’s future education and to explore college/work placements. The intention was for the Council to ‘update’ Y’s EHC Plan in February 2025. Y wanted to start work.
23. Ms X complained to us in December 2024.

Events since Ms X’s complaint to the LGSCO

24. There was an annual review meeting in January 2025. Mrs X, the tutor and SEND case officer attended. The minutes noted Y’s EHC Plan was relevant for the current school year, but Y wanted to start work in September.
25. In January 2025, the Council issued a decision to maintain Y’s EHC Plan (with no amendments).
26. Ms X told me Y was continuing to receive 15 hours a week of one-to-one tuition.

Information from the Council

27. The Council told me it now has a dedicated team dealing with children who have EHC Plans and are not in a school placement. It said annual reviews for those children have been on time since September 2024.

Findings

28. Y’s EHC Plan should have been reviewed in 2023. It was not. The failure to ensure a review took place was not in line with the SEND Code of Practice and was fault. It caused a loss of appeal rights and avoidable uncertainty and distress.
29. There was an annual review meeting in June 2024. The Council should have issued a decision to maintain, cease or amend the Plan within four weeks. It did not. The failure to complete the annual review and issue a formal decision was fault causing a delay in appeal rights and avoidable uncertainty. I note Ms X has not used appeal rights since receiving a decision to maintain (see next paragraph) and so the injustice is limited.
30. There was a further annual review meeting in January 2025. The Council issued a decision to maintain with no amendments within four weeks. This was in line with the SEND Code of Practice and there is no fault.
31. As the Council has not amended Y’s Plan, the Plan of February 2020 remains in place. Y has been getting individual tuition which would fulfil his academic needs, but he has not been getting any of the social and emotional provision or speech and language and occupational therapy provision I have summarised in paragraph 19. The Council has a duty to secure the SEP on the Plan. The failure to do so was fault causing a loss of provision.

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Agreed Action

32. Within one month of my final decision, the Council will issue:
• An apology. 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.
• A payment of £1800 to Y to reflect the loss of SEP in Section F of his EHC Plan between December 2023 and December 2024
• A payment of £250 to Ms X to reflect her avoidable distress, uncertainty and delay in appeal rights.
33. I have not recommended any improvements to the Council’s services because it now has in place additional staff resources to keep track of annual review of children and young people with EHC Plans who are not in educational placements and the evidence indicates there are no outstanding annual reviews within this group. This means the chance of recurrence is minimised.
34. The Council should provide us with evidence it has complied with the above actions in paragraph 32.

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Decision

35. 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