Summary: We have discontinued our investigation of this complaint, about the support provided to a child with special educational needs, and a delay by the Council in completing a review of his education, health and care plan. This is because the Council has already offered an appropriate remedy, we cannot investigate part of the complaint because it is about a school rather than the Council, and because we cannot provide the outcome the complainant is seeking.

The complaint

1. I will refer to the complainant as Mrs H.
2. Mrs H complains the Council did not intervene to ensure her son, B, was receiving appropriate support at school, which led to his placement there failing. She also says the school discriminated against B by excluding him. Mrs H also complains it took the Council eight months to complete an annual review of B’s education, health and care (EHC) plan.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome, and/or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

6. I considered evidence provided by Mrs H and the Council as well as relevant law, policy and guidance.
7. I also shared a draft copy of this decision with each party for their comments.
   

Back to top

What I found

8. Mrs H made a complaint to us previously, about delays in the Council’s issue of B’s EHC plan, its failure to secure the specialist provision set out in the plan, and also a failure to arrange alternative educational provision for him. We upheld Mrs H’s complaint in August 2023, and the Council agreed to apologise to her, offer a financial remedy, and circulate a copy of our decision to relevant staff.
9. Mrs H made a new complaint to the Council in September 2024. She said B’s school had still not met his needs or followed his EHC plan, even after the previous complaint.
10. Mrs H said the school had told her it did not have the funding to implement the provision required by B’s plan, nor to arrange alternative provision for him despite his low attendance. She said the school had repeatedly excluded B because of his behaviour, and that he had only been allowed to go on a school trip because Mrs H had accompanied him, which she considered to be discrimination. As a result of this, Mrs H had now removed B from the school.
11. Mrs H said B was evidently traumatised by his experiences at school. He was receiving some therapy and had support from the NHS, but she did not consider he should be in this position. Mrs H said she was unsure whether she had formally raised a complaint about this, so asked for the Council’s advice, adding B had now missed another year of education.
12. Mrs H also complained the Council had not yet issued an amended final EHC plan, despite the review having taken place in March 2024.
13. The Council responded in December. It explained it was the Council’s responsibility to secure the provision set out in an EHC plan, and said Mrs H was therefore correct to make a complaint to it.
14. The Council noted Mrs H had raised concerns in September 2023 about the support B was receiving at school, and explained his attendance there was poor. The Council said it had spoken to school at the time, and the school had assured it all required provision and support was in place. It had then emailed Mrs H in October to confirm B would continue to receive therapy from an external provider.
15. The Council acknowledged Mrs H had continued to raise concerns, and said it had discussed these with the school.
16. The Council highlighted that the information the school had provided for the annual review of B’s EHC plan in March had said he felt safe and secure in school, and was engaging well the support he was receiving. However, it also accepted B had struggled with a change in staff. The Council acknowledged it could have attended the review meeting itself and provided its own contribution, and that it was “late” in escalating Mrs H’s concerns, which had delayed holding a meeting with B’s school until April.
17. The Council explained the different arrangements for funding alternative provision through schools, and that, where there was a shortage in a school’s budget, the Council expected the school to request support with this. However, the Council accepted its delays in responding to Mrs H’s concerns had contributed to B’s difficulties attending the school, and to Mrs H’s decision to withdraw him.
18. The Council also accepted it had unreasonably delayed finalising B’s amended EHC plan following the review, which it had eventually done in November.
19. The Council offered Mrs H a total of £2600 as a financial remedy to reflect its faults and the injustice this had caused Mrs H and B. This was made up of £1800 for B’s loss of education between September 2023 and September 2024, £300 for the delay in completing B’s annual review, and £500 for the distress arising from this.
20. Mrs H referred her complaint to the Ombudsman in January 2025.

Back to top

Legal background

21. 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.
22. 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
23. 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 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) 
24. 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.

Back to top

Analysis

25. For several reasons I do not consider it would be proportionate to continue my investigation in this case.
26. First, I consider the Council has already offered Mrs H an appropriate financial remedy for the loss of provision, delays and general distress she has described, because it adheres to our own published guidance on remedies. We are unlikely to recommend any significantly different by further investigation and so it is not appropriate to do so.
27. Second, significant elements of Mrs H’s complaint are about the conduct and management of B’s former school, which we have no jurisdiction to investigate.
28. Mrs H has explained her complaint is primarily motivated by her perception the Council did not implement the remedies agreed during our previous investigation, in particular that it did not make arrangements for B to receive 1:1 support in school. However, this was not a recommendation we made, and it could not have been one, because we do not have the power to decide what provision and support a child should receive. This is a matter for the EHC plan process, and ultimately the SEND Tribunal if necessary.
29. Similarly, Mrs H says she seeks from her complaint that the Council “provides the long-term [therapy] that has been requested without subjecting us to unnecessary & repeated reviews”. Again, we have no power to decide the Council should do this, and in any case the Council is required by law to carry out regular reviews of B’s provision.
30. After its response to her complaint, Mrs H raised an additional point with the Council, which was that it had wrongly shared with the school emails she had sent to the Council. Mrs H said this had contributed to a breakdown in her relationship with the school.
31. As this did not form part of Mrs H’s complaint to the Council, we are unable to investigate it. But, even if we could, we generally expect people to approach the ICO with complaints about data protection such as this one.

Back to top

Decision

32. I have discontinued my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman