Summary: Ms X complains about the Council’s delay in carrying out an annual review of her child’s Education Health and Care Plan and providing suitable alternative provision causing distress and uncertainty. We found service failure by the Council due to the delay in carrying out the annual review. We also found fault by the Council as it accepted the alternative provision did not meet the child’s needs. We have recommended a suitable remedy in this case and have completed our investigation.

The complaint

1. Ms X complains the Council:
• Failed to deliver the content of her son Y’s Education Health and Care Plan (EHC Plan)
• Delayed completing an emergency annual review of Y’s EHC Plan and:
• Failed to communicate about the matter.
2. Ms X says the matter caused her frustration, distress and time and trouble to resolve. And it has negatively impacted onto Y’s well-being causing distress.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
6. 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)
7. 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.
8. 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)
9. 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

10. I have investigated Ms X’s concerns from 1 March 2024 to 17 October 2024 when the Council issued a final amended EHC Plan. Ms X had rights of appeal once the Council issued the final amended EHC Plan. It is reasonable to expect Ms X to use her appeal rights if she disagreed with contents and placement in the EHC Plan. This is because the SEND Tribunal is best placed to consider such matters and can instruct the Council to make any changes to the EHC Plan.
11. The courts have established that if someone has appealed to the Tribunal, 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)
12. 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.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
14. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right. So, I have not looked at any concerns Ms X may have from 17 October 2024 onwards due to her right of appeal.

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How I considered this complaint

15. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
16. 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

Education and Health Care Plans

17. 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.

Reviewing EHC Plans

18. 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)
19. 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 (so 12 weeks in total). Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

Maintaining the EHC Plan

20. 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)
21. 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.

Alternative provision

22. 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.
23. 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)

What happened

24. What follows is a brief chronology of key events. It does not include all the information I have reviewed during my investigation.
25. Y had been diagnosed with ADHD and other learning needs. Y started at a mainstream secondary school in 2021 and was issued with an EHC Plan. The EHC Plan specified Y should be given additional support during the day including access to small group sessions, an enhanced resource provision, additional planning, preparation and support when needed.
26. In November 2023 the school and Council held an annual review of Y’s EHC Plan. Ms X also attended. The review established Y needed suitable alternative provision to support him while attending the school. The school arranged some alternative provision for Y from 1 January 2025. The Council says this was provided under section 19.
27. On 1 March 2024 the school called an emergency annual review meeting, attended by a Council Casework Officer from the Statutory Assessment Team (SAT). Ms X said the school was not meeting Y’s EHC Plan. The meeting noted Y’s mental health had deteriorated during the academic year to the point he was hardly attending lessons due to anxiety although the school had put alternative provision in place including:
• a day a week at a sports club,
• a weekly attendance at a sports centre with mentoring by coaches and had a sports focus.
• 15.40 hours a week at school with a reduced timetable, smaller classes, and 1:1 support.
28. But Y refused to attend most classes when at school. The school considered he needed an alternative placement, but the review noted Ms X was reluctant to explore this due to Y’s current year group at school. The school asked the Council for extra funding for Y for September 2024 to continue with the alternative provision. The school said it could meet Y’s needs but needed additional funding.
29. The casework officer received the annual review papers from the Business Support team on 31 May 2024. The casework officer issued a proposed amended EHC Plan on 27 June 2024 following the annual review in March 2024. This proposed Y remain at the current mainstream secondary school.
30. The Council’s placement and provision panel (panel) agreed on 3 July 2024 to the additional funding for Y’s school. This was to be for one term starting from 1 August 2024. It was to be reviewed at the end of the autumn term after which funding would revert to previous levels from 1 January 2025. The funding would cover the additional support provided over and above current funding and alternative provision. The Council considered the funding sufficient to meet Y’s needs and provision as stated in his EHC Plan and the adjustments made to support him.
31. The school, Council and Ms X held a further meeting on 17 July 2024 about Y’s placement. The school advised it could support Y with the additional funds, but the provision would be in alternative provision rather than in main classrooms due to Y’s difficulties in attending school.
32. The school called a further emergency annual review on 12 September 2024. The school and Ms X agreed it could not meet Y’s needs. Ms X asked for Y to attend a specialist environment. This would enable him to have access to more interventions and smaller groups with staff experienced with working with young people with ADHD. The Casework Officer agreed to consult with an appropriate special school.
33. The Council issued a second proposed amended EHC Plan on 12 September 2024 following the emergency annual review the same day but listed no placement for Y to attend in section I.
34. Ms X complained to the Council on 24 September 2024 that:
• Y was not receiving the provision in his EHC Plan and was struggling in the mainstream school causing Y and the family upset.
• The school said it could not meet any of Y’s needs and had made many requests to the Council for extra funding. But had not received the funds necessary to meet his needs as set out on the EHC Plan. The school also said it did not have the expertise to manage Y’s needs, no longer best suited to him and Y should move to find alternative provision.
• There had been emergency annual reviews for Y and the school told the SAT to treat Y as a priority pupil of concern. But this had not happened.
35. Ms X wrote on 25 September 2024 requesting a placement for Y at her preferred provision.
36. The Council responded to Ms X’s complaint at stage 1 of its complaint procedure in October 2024. It acknowledged a delay with the Annual Review with the casework officer only receiving the annual review paperwork on 31 May 2024. The Council explained the action taken following the annual review, the agreement to provide additional funding and to consult with Ms X’s choice of placement. The Council upheld the complaint and recognised the delay in the annual review process caused significant distress and frustration. The Council said it was seeking to improve the annual review process.
37. The Council issued a final EHC Plan on 17 October 2024 naming Y’s current mainstream school as his placement.
38. Ms X made a stage 2 complaint on 21 October 2024 and repeated her concerns from stage 1. Ms X said some agreed alternative provision had not been provided and asked why there had been delays between January and May 2024.
39. On 18 November 2024 the panel agreed to a specialist school placement for Y at the provision of Ms X’s choice. This was because it considered the alternative provision being made was not proving successful. The placement would start from January 2025 after the one term’s funding as agreed in July 2024.
40. The Council responded to Ms X’s complaint at stage 2. It considered the stage 1 response. The Council said:
• It upheld the delay of 12 weeks when processing the emergency annual review paperwork causing a delay in increasing the funding to Y’s school.
• Following the delay Y’s case went to panel in July 2024, and it agreed to increase funding from August 2024 for the autumn term. It considered the increase enabled the school to resource suitable alternative provision for Y.
• The school continued to provide alternative provision for Y during the delay and at no stage was this removed. The Council apologised for any uncertainty the delay may have caused Y and the family and for the lack of timely updates and responses to her enquiries.
• It held a further review of Y in July 2024, processed the paperwork and urgently consulted with Ms X’s choice of placement with a place starting in January 2025.
• It was working on a robust recovery plan to address significant staffing and capacity issues within the SAT team.
41. Ms X remained unhappy with the Council response and asked to go to stage 3 of the complaint procedure. Ms X said the Council failed to secure special educational provision for Y. It had failed to consider the wider impacts of the stress caused by the Council’s delay with the annual review. And the impact on the health and wellbeing of Y and the family despite the placement starting in January 2025.
42. The Council responded in January 2025. The Council:
• Apologised for the family’s emotional distress and any detrimental impact felt by Y. It confirmed the previous responses had upheld and apologised for the delay in the annual review process.
• Recognised there had been no clear explanations for the delay caused by staffing, capacity issues and lack of timely communications. The Council apologised and said it had a robust development plan now in place with a review of staffing structures and systems. This would ensure improved oversight and management of communications.
• Confirmed both it and the school made attempts to secure alternative provision for Y. But it was quickly identified at the emergency annual reviews that Y’s needs were not being met and the school requested extra funding to enable it to meet his needs. The Council acknowledged and apologised that delays in communications impacted the allocation of the required funding after it was approved by the panel.
• Confirmed that while it accepted there was a delay the school continued to provide alternative provision for Y, so he was not left without any provision. The Council said some of delay was down to the need for due diligence in reviewing the list of requests to ensure the appropriate use of public funds.
• Confirmed the panel awarded the school more funding than the normal maximum amount. And when awarding such an amount it would not anticipate the need for additional or external alternative provision, although it appreciated Y benefited from it.
• Viewed all the increased funding as an indication provision at the school was not meeting Y’s needs and was an attempt to enhance it. The Council apologised that Y did not have his needs met within his current school. And that attempts to support and rectify this were not timely or successful. The Council upheld Ms X’s complaint.
43. The Council has provided an update on its SEN service and recognises the need for a service improvement plan to be implemented from September 2025. This will include increasing capacity in its SAT to improve the management of officer workloads. It will also create a training programme for new and existing staff to promote models of practice alongside technical understanding of statutory frameworks for dealing with SEN.

My assessment

44. The Council accepts it delayed issuing an updated EHC Plan for Y after the emergency annual review in March 2024 due to capacity issues within its SAT which is service failure. The annual review meeting took place on 1 March 2024. The Council decided to amend Y’s EHC Plan so should have issued the final amended EHC Plan on or around 24 May 2024 being 12 weeks after the annual review meeting. The Council did not do so until 17 October 2024 which was nearly five months after the required statutory deadline.
45. The Council is proposing to make service improvements through a SEN plan and has assured us it will take actions to address delays in the EHC Plan process. We are therefore satisfied the Council is aware of the need to address this and is taking steps to address an issue at the heart of this complaint. So, we do not consider there is a need to make service improvements recommendations in this case.
46. However, the Council’s failure to meet timescales set out in Government guidance to issue the updated EHC Plan is fault. It will have caused an injustice to Ms X and Y through frustration, distress, and uncertainty about the provision to be made for him. And it delayed Ms X’s appeal rights to the SEND Tribunal and ability to challenge the placement until the final plan was issued. So, I recommend the Council should apologise to Ms X for the delay in completing the annual review in 2024. It should also provide a remedy to Ms X and Y by making Ms X a symbolic payment of £500 to recognise the distress, frustration and uncertainty caused and for the delayed appeal right.
47. From the evidence provided it appears that alternative provision was made for Y. This was initially by the school and later supplemented by the Council when it agreed additional funding. It appears that Y still struggled to engage but it was reasonable to allow the arrangements to run to see if the situation improved or changed. Although there were delays in completing the annual review process, the emergency annual review documents indicate the Council did not allow the situation to drift for any prolonged length of time and it responded to Ms X’s concerns about Y. Officers attended the emergency annual reviews, showing it had engaged with the situation and ensured the school was providing Y with alternative provision.
48. The evidence shows the school and Council were trying to engage with Y and make provision for him. The documents show that Y was attending school but unfortunately was refusing to attend the provision put in place. However, the Council has subsequently acknowledged the provision put in place was not meeting Y’s needs. This will have caused an injustice to Ms X and Y through distress and uncertainty about whether the alternative provision was helping meet Y’s needs. I recommend therefore the Council should apologise to Ms X and Y and make Ms X a symbolic payment of £500 to recognise the stress and uncertainty caused.

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Agreed Action

49. Within one month of my final decision the Council will:
• Apologise to Ms X and Y for the delay in completing the annual review in 2024 and that the alternative provision put in place did not meet Y’s needs. 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.
• Make Ms X a symbolic payment of £500 to recognise the distress, frustration and uncertainty caused and for the delayed appeal right.
• Make Ms X a symbolic payment of £500 to recognise the stress and uncertainty caused by the alternative provision put in place failing to meet Y’s needs.
• Provide us with a copy of the SEN service improvement plan to be implemented from September 2025.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice and have recommended a suitable remedy for the injustice caused in this case.

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Investigator's decision on behalf of the Ombudsman