Summary: Miss X complained the Council failed to meet the provisions set out in her son Y’s Education, Health and Care (EHC) Plan. The Council did not complete the annual review or amend the EHC Plan within the statutory timeframe. Miss X also complained about the Council’s poor communication and delays in its complaints process. The Council was at fault and this caused a loss of provision and undue distress. We also found fault in the Council’s poor record-keeping and failure to properly acknowledge Miss X’s concerns about tutoring. The Council agreed to apologise and make payments to remedy the injustice.

The complaint

1. Miss X complained the Council failed to meet the provisions set out in her son Y’s Education, Health and Care (EHC) Plan after they moved to a new area. She says the Council did not review and amend Y’s EHC Plan within the statutory timeframe. Miss X complained about the Council’s poor communication and delays in the complaints process.
2. She said this made her family feel isolated, causing distress and frustration. Y missed out on educational provision, affecting his social and mental wellbeing.

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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. 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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

8. Miss X complained to us in January 2025. The Council became responsible for managing Y’s EHC Plan in June 2023. Matters over 12 months are late complaints, but I decided to investigate from June 2023 as the Council delayed issuing a stage 2 response and did not clearly communicate it would not progress to stage 3.

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How I considered this complaint

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

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What I found

Education Health and Care Plans

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the SEND tribunal can do this.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
13. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. On transfer the new council becomes responsible for maintaining the plan and securing the special educational provision specified in it. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer:
• that the EHC plan has been transferred;
• whether it proposes to make an EHC needs assessment; and
• when it proposes to review the EHC plan.
14. The new authority must review the plan before one of the following deadlines, whichever is the later:
• Within 12 months of the plan being made or being previously reviewed by the old authority; or
• Within three months of the plan being transferred.

The Council’s policy for people with EHC plans transferring from another council area

15. The legal need for the new local authority to start making the provision in the EHC Plan is set out in: regulation 15 of The Special Educational Needs and Disability Regulations 2014
16. Under the law, the transfer will happen either on the day of the move or within 15 working days of Southend becoming aware of the move. The SEND Team will have 6 weeks to tell you that the EHCP has been transferred and let you know when it will review the EHC Plan.
17. As soon as the EHC Plan has transferred, the new LA has the same legal duties as if it had issued the EHC Plan. The most important duty is to make sure the child or young person receives all the special educational provision specified in section F.

Alternative provision

18. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. 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)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

23. Y has special educational needs (SEN) and an Education, Health and Care (EHC) Plan. The Council took over responsibility for Y’s EHC Plan in June 2023, when the family moved into its area.
24. The Council failed to identify a suitable school placement or provide any alternative education or therapeutic provision for the remainder of the summer term in 2023. Y received no education during this period.
25. The Council arranged 15 hours of one-to-one tutoring each week at home from September 2023. However, Miss X said the tutor arrived late, did not engage with Y, and had no knowledge of his EHC Plan or SEN needs. The tutor was replaced in December 2023. Miss X said she raised concerns about the quality of tutoring to the tuition provider via telephone. The tuition provider said Miss X always said she was happy with the quality of tutoring when asked. It failed to provide any written notes of calls and visits with Miss X.
26. Miss X raised further concerns in December 2023 after discovering reports had been submitted by the first tutor which she believed to be false or misleading. She said these reports overstated Y’s abilities and progress. Miss X emailed the Council to request the reports not be used in the upcoming EHC Plan review. The Council did not acknowledge these concerns, and there is no evidence it took any steps to investigate the matter at the time.
27. A new tutor began working with Y in December 2023. But Y still did not receive the therapeutic provision set out in his EHC plan.
28. Miss X made formal complaints about the Council’s failure to provide a suitable education in December 2023.
29. An annual review of Y’s EHC Plan was due in September 2023 but did not take place until December 2023. This caused delays in an EHC Multi-Agency Panel discussing Y’s SEN and options for educational provision. The Council issued a draft amended Plan on 13 March 2024 and asked Miss X for details of her preferred school. The Council then consulted with a number of schools in June and July 2024 but none said they could meet Y’s needs. Y was later allocated a place at a special school for 15 hours of one-to-one tuition a week from September 2024.
30. The Council issued a final EHC Plan on 15 July 2024 naming the special school from September 2024.
31. Tuition stopped from 24 April and 11 June 2024 because Miss X did not want to continue as Y became disengaged and challenging with tutors, leaving Miss X and Y distressed. The Council continued to offer the tuition, but Miss X refused. The tuition provider contacted Miss X to rearrange tuition. Miss X confirmed her requirements and tuition restarted on 11 June 2024 with a SEN qualified teacher who Miss X was pleased with.
32. Miss X made a further complaint in July 2024 about the Council’s failure to provide a suitable education or the provision in Y’s EHC plan since they had moved to the area. She also complained about delays in the annual review process. The Council acknowledged it took longer than it should have to identify a suitable school and apologised for the impact this would have had on Y.
33. The Council also accepted fault for the poor communication and lack of responses to Miss X’s complaints. The stage two response was delayed by 10 weeks. This also caused undue distress, inconvenience and frustration.

Analysis

34. The Council’s failure to complete the EHC Plan process and issue a final EHC Plan in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the annual review. In this case there was a three-month delay in holding the annual review and the Council then took over 30 weeks to issue a final plan. The Council should have issued a final Plan by 7 March 2024 but did not do so until 15 July 2024.
35. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
36. The Council was at fault in failing to ensure Y received a suitable education. Y did not receive any education or provision in his EHC Plan for the final month of the summer term in 2023.
37. The Council then provided one to one tuition. The Council says it provided 15 hours tuition each week. But Miss X says Y only received 9 hours each week and that the tuition was initially poor between September and December 2023.
38. Government guidance is clear that all children of compulsory school age are entitled to a full-time education. Full time education is not defined, but it is generally accepted to be between 22 and 25 hours a week depending on the age of the child. However, if the tuition is one to one, fewer hours may be appropriate given the increased intensity of the learning.
39. The evidence confirms the Council arranged for 15 hours tuition per week. However, Miss X says the tutor would arrive late and leave early. It is unclear whether Y actually received the 15 hours per week between September and December 2023 due to the vague weekly reports by the tutor. Miss X says she raised her concerns with the tuition provider. The provider confirmed Miss X contacted it but there are no written notes of communications with Miss X. The tutor was replaced in December 2023. Miss X then raised concerns about the previous tutor falsifying reports. The Council failed to acknowledge this. On the balance of probabilities, Y did not receive appropriate tuition from September to December 2023.
40. Not receiving a suitable full-time education or the provision specified in Y’s EHC plan is a significant injustice. This had a negative impact on Miss X and Y’s social and mental wellbeing.
41. The weekly tutor reports from December 2023 to April 2024 were more detailed. These show Y received 15 hours per week. Weeks with reduced hours were either cancelled by Miss X or due to public or school holidays. The reports show fluctuating levels of engagement. Y positively took part in some activities but often became distracted or disengaged. The tutor noted that Y’s tablet use, and the presence of their sibling added to difficulties in engagement. On the balance of probabilities, appropriate tuition was provided between December 2023 to April 2024.
42. The Council also failed to provide the speech and language therapy (SALT) and occupational therapy provision specified in Y’s EHC plan for at least the summer and autumn term in 2023. Miss X said Y did not receive any therapy sessions until May 2024. She said Y then received six SALT sessions only after she chased the matter. Y did not receive any therapy sessions for the end of the summer term 2023, autumn term 2023 and spring term 2024. Y has severe learning difficulties. Y missed out on essential therapy sessions which negatively impacted his behaviour and progress. This is a significant injustice.
43. Our Guidance on Remedies says that when a young person has missed education because of fault by the Council, we may recommend the Council makes a symbolic payment. This is to acknowledge the education they have missed and help them to catch up.
44. In the circumstances, I consider a payment of £1200 for the failure to provide a suitable education and SALT provisions would be appropriate. Y received no education at the end of the summer term 2023 The Council failed to arrange suitable full-time education for the autumn term in 2023.

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Action

45. Within one month of my final decision, the Council will issue:
• An apology to Miss X and Y. 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 £1200 to Y to recognise the impact of having no educational provision for the part-term after moving to Southend-on-Sea, and the impact of missed educational provision and the other provision set out in the EHC Plan.
• A payment of £350 to Miss X for the delays in the annual review process.
• A payment of £200 to Miss X for the poor communication and delays in complaint response.
46. Within 8 weeks of my final decision, the Council should:
• Remind relevant officers to recognise and escalate reports or concerns by complainants.
• Remind tuition providers to maintain clear, detailed and accurate record keeping of tuition reports, complaints and communications with parents, including telephone calls and visits. And to report any complaints to the Council.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman