Summary: Miss X complained that her child, Y, did not receive the provision in Section F of their Education, Health and Care Plan. There was fault by the Council. Y did not receive all the provision for over 3 terms and the Council did not respond to Miss X’s concerns about this. There was also delay in carrying out an annual review and a failure to issue a final Education, Health and Care Plan after a previous annual review. An apology, symbolic payment and service improvement remedies the injustice from the loss of education.

The complaint

1. The complainant, Miss X, complains the Council did not respond to concerns about the failure to provide provision in Section F of the Education, Health and Care (EHC) Plan raised in an email in September 2023 for her child, Y.
2. Miss X says the provision in Section F of the EHC Plan was not put in place from September 2023 onwards and Y missed out on educational provision as a result. Miss X also says the Council delayed carrying out an annual review and issuing a new EHC Plan in 2024. This has meant she has not been able to appeal to the SEND tribunal.

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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. 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)
5. 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

6. I have not investigated events prior to September 2023. 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) I do consider it would have been reasonable for Miss X to complain about events from 2021 and 2022 earlier and as the Council has already found fault and offered a settlement of £1800 for that time, I have not exercised discretion to investigate before September 2023.
7. I have investigated events up till the end of December 2024 when the Council replied to Miss X’s official complaint and she complained to the Ombudsman shortly after.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss 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

Law and guidance

10. A child or young person with special educational needs may have an 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. 
11. 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)  
12. 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must tell the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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.

Key facts

15. Y has had an EHC Plan which named a specialist school from 2021.
16. Miss X asked the Council for an early review of the EHC Plan on 9 September 2023. The review was carried out by the school on 17 November 2023. The school sent the annual review paperwork to the Council on 24 January 2024. The report noted that Y was on a reduced timetable and to keep the EHC Plan as it was with no significant recommended changes.
17. Miss X made an official complaint on 30 March 2024. The Council responded to the official complaint on 3 January 2025. Her complaints were upheld, with the following remedy offered:
• A symbolic payment of £1800 for the period of 2021 until April 2023.
• A symbolic payment of £500 for the Council not attending the emergency annual review in November 2023, the lateness of the official complaint response and receiving no response to issues raised when requesting the emergency review.
• A symbolic payment of £2500 in recognition for the impact of the loss of educational provision to Y.

Miss X did not accept the offer of the financial remedy.

18. Y has not attended school from January 2025 onwards. Miss X complained to the Ombudsman.
19. In response to my enquiries the Council said:
• When it received Miss X’s official complaint it accepted it was at fault.
• No final EHC Plan was sent to Miss X after the November 2023 annual review. This was fault and it prevented Miss X from having a right of appeal to the SEND tribunal.
• No annual review was completed in 2024. The Council has said an annual review was started in June 2025 and was due to be completed in July 2025.
• Y had a school place available from September 2023, but it acknowledges that Y found it difficult to attend and this impacts the school’s ability to implement any provision.
• It proposed a symbolic payment of £10,300 to Miss X and Y to remedy the injustice from the fault.

My analysis

20. The Council has accepted it was at fault. My role is to decide whether the remedy offered is in line with the Ombudsman’s guidance on remedies.
21. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all the specified support – that was made during the period.
• Whether additional provision can now remedy some or all the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
22. The Council has offered a payment of £1800 for the period before September 2023. I have not considered this period during the investigation so I make no comment on the level of remedy for this time.
23. From September 2023, the Council has offered £2100 for each of the 3 terms of missed education, totalling £6300. And £1700 for the delay in reissuing the final EHC Plan following the annual review in November 2023. This, in addition to the previous £500 offered, makes a total of £10,300.
24. I consider the remedy offered by the Council is in line with the Ombudsman’s guidance and is appropriate. Miss X made the Council aware of Y’s attendance at school was low in September 2023. So, I have considered whether the remedy should be for 4 terms (until December 2024) rather than the three proposed by the Council. While there was some loss of education (the provision in Section F of the EHC Plan) for 4 terms, the amount proposed by the Council per term for the 3 terms is higher than the Ombudsman is likely to recommend as Y had a place at school and was attending on a reduced timetable. £2100 per term is at the higher end of the remedies guidance, when a child is totally out of school. This was not the case for Y, so my view is that the £6300 payment is in line with our guidance for the period of time covered by this investigation.
25. The Council currently has a Special Educational Needs action plan but this refers mainly to EHC Plan needs assessments. So I am including a service improvement recommendation for the Council to review its procedures to ensure that annual reviews of current EHC Plans are carried out within the timescales set out in the law.

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Action

26. Within one month of the date of the decision on the complaint the Council should:
• Apologise to Miss X. 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.
• Pay Miss X £10,300.
• Complete the annual review by sending Miss X the letter telling her whether the EHC Plan will be maintained, amended or cancelled.
• Review its procedures to ensure that annual reviews of current EHC Plans are carried out within the timescales set out in the law.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I have completed my investigation and 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