Summary: Ms X complains the Council was at fault in the way it dealt with her son’s Education Health and Care Plans, annual reviews and did not provide alternative educational provision when he could not attend school. Based on current evidence we found fault as the Council delayed an annual review. The Council has accepted it was at fault and already apologised which is suitable action for it to take. We have not investigated Ms X’s other complaints as she had the right of appeal to the SEND Tribunal, and it was reasonable to expect her to exercise this right. So, we are have completed our investigation.

The complaint

1. Ms X complains there were failings in the way the Council dealt with her son Y’s special educational needs and education health and care plans (EHC Plan). This includes delays with annual reviews, failing to ensure Y received the provision specified in his EHC Plans, failing to provide alternative provision when he was unable to attend school at the end of 2024. Ms X says this has caused distress and loss of educational provision and opportunity for Y.

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The Ombudsman’s role and powers

2. 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)
3. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
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. 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)
6. 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.
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(1), 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. I have investigated Ms X’s concerns from January 2024 until March 2024. I explain my reasons for this timeframe within this statement.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms 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

Legal background and statutory guidance

EHC Plan

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 the council can do this.

Maintaining the EHC Plan

13. 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)
14. 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

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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

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.

What happened in this case

18. Ms X complained to us in January 2025, so I have investigated Ms X’s concerns from January 2024 being 12 months from the date of Ms X’s complaint. This means I have not investigated Ms X’s complaints about delayed annual reviews or educational provision during 2022 and 2023. This is because Ms X’s complaints about these issues are late and it was open to Ms X to have complained to us before now. I have however included a brief chronology of key events from 2022 to 2024 in this statement to provide background to Ms X’s concerns. The chronology does not include all the information I reviewed during my investigation.
19. Y has been diagnosed with ADHD. The Council issued Y with an EHC Plan in February 2021 with a mainstream school named as an appropriate setting. From September 2021 Y attended a mainstream secondary school I will refer to as School B. School B held an annual review in March 2022 and sent the annual review documents to the Council in November 2022. The Council actioned the annual review in December 2022. It issued a decision letter to Ms X and School B saying it would be maintaining Y’s EHC Plan and not making any amendments to it. School B held an annual review in January 2023. The Council says it did not action the annual review during 2023 due to staffing level issues in its SEND service.
20. The case notes provided show in February 2023 Y was having difficulties attending school. School B provided work for him to complete at home and placed him on a part time timetable to help him attend. The notes show in June 2023 Ms X’s relationship with School B broke down. Ms X told the Council she did not want a change of placement for Y just an annual review to discuss concerns and the part time timetable.

Events 2024

21. School B arranged an annual review in February 2024, but this was cancelled as a representative from the Council’s Information, Advice and Support Kent (iASK) was unable to attend to support Ms X.
22. The Council chased School B at the end of February 2024 to hold the annual review as it was overdue. The Council said it was urgent because of issues raised about Y’s mental health and the part time timetable. School B held the review on 5 March 2024. The Council accepts the annual review was held late.
23. Case notes show Ms X raised concerns Y was struggling to attend school as School B would not let her on the site. The notes say staff from School B did a home visit and agreed Y would be met at school by a trusted teacher. But Y did not attend, and Ms X sent a note saying he had mental health issues and school-based trauma. School B raised concerns about Y’s wellbeing as he had been referred to the Early Help service, but the family did not engage.
24. The Council actioned the annual review and decided the EHC Plan remained appropriate. It issued a ‘no amendments’ letter to Ms X and School B on 27 March 2024. The letter advised Ms X of her right of appeal if she did not agree with the Council’s decision.

My assessment

25. The Council acknowledges the annual review for 2024 was held late being in March 2024 rather than January 2024 as the last annual review was January 2023. This was fault by the Council as it held the annual review eight weeks late. The Council has already apologised to Ms X for the delay which is suitable action for it to take. This is because the delay caused a limited injustice to Ms X and Y as the Council then dealt with the annual review according to the statutory timescales. And it issued the notice to Ms X it did not intend to amend the EHC Plan within the required four weeks.
26. Once the Council issued the decision not to amend the EHC Plan in March 2024 Ms X had the right of appeal to the SEND Tribunal if she disagreed with the decision for Y to remain at School B or felt this was an unsuitable setting for him. I consider it would have been reasonable to expect Ms X to exercise her right of appeal to the SEND Tribunal. This is because the SEND Tribunal can consider the Council’s decision not to amend the EHC Plan and any concerns Ms X may have had about the placement and provisions being made for Y. 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.
27. As Ms X had the right of appeal to the SEND Tribunal and we consider it reasonable to expect her to use that right any complaints Ms X had from March 2024 fall outside our jurisdiction to consider. So, I have not investigated Ms X’s complaints the Council failed to ensure Y received the provision specified in his EHC Plan and failed to provide alternative provision when Ms X says he was unable to attend school at the end of 2024.

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Decision

28. I find fault causing injustice which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman