Summary: There was fault by the Council because it did not complete an annual review of an education, health and care plan, and because of mistakes it made in complaint handling. The Council has agreed to apologise and offer a financial remedy for the distress this caused. However, there was no fault in a complaint it did not ensure the complainant’s son was receiving education.

The complaint

1. I will refer to the complainant as Miss C.
2. Miss C’s complaint concerns the education received by her son, B, who has special educational needs. She complains:

• the Council did not process an annual review of B’s education, health and care (EHC) plan on time, after it was held in September 2023;
• the Council did not ensure B was receiving education at his placement; and
• the Council mishandled her complaint.

3. Miss C says, as a result of this, B has not been receiving a suitable education and is significantly behind the expected level for his age group, and that she has had to give up work to provide him with tuition and supervision.

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The Ombudsman’s role and powers

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)

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What I have and have not investigated

9. I have investigated Miss C’s complaint as set out at paragraph 2.
10. In her complaints to the Council and Ombudsman, Miss C raised two additional points, which were that B was placed on an ‘education other than at school’ (EOTAS) package without informing her or gaining her consent, and that the Council shared information without her consent.
11. Miss C has elaborated on the first point to explain that B’s education provider was reclassified as EOTAS after discussions with OFSTED. The evidence I have seen does not suggest the Council was party to this decision, and so it appears unlikely it would fall into our jurisdiction to investigate.
12. Either way, another part of Miss C’s complaint is that B was not receiving meaningful education from this provider anyway; and this being so, there is no reason to believe its classification made any difference to B’s circumstances. I have therefore decided not to investigate this point.
13. I have also not investigated Miss C’s complaint about information sharing, because the ICO is the more appropriate body to consider such complaints.
14. Separately, I will note at this point that my investigation will cover the period January to September 2024, although I will refer to events outside this time period where necessary to provide context. This is because events prior to January 2024 are late, under the time restriction in our jurisdiction; and because events after September 2024 post-date Miss C’s complaint to the Council.

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How I considered this complaint

15. I considered evidence provided by Miss C and the Council as well as relevant law, policy and guidance.

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What I found

16. The following is a summary of the key events relevant to Miss C’s complaint. It is not intended to document everything that has happened, and for the sake of simplicity, I will not include in it the elements of Miss C’s complaint I have not investigated.
17. B has learning and developmental difficulties and is subject to an EHC plan. In 2021, his plan was amended to name a specialist education provider, to which I will refer as Provider 1. B turned 16 during the 2023/24 academic year.
18. In July 2023 an annual review of B’s EHC plan was held. Following the review, Miss C emailed the Council to explain she was not satisfied with the educational provision B was receiving from Provider 1. The Council responded to acknowledge Miss C's concerns, and said it would ask Provider 1 to hold another review in September, which the Council would attend.
19. At the review meeting in September, Miss C said B was only receiving the therapy set out in B’s EHC plan, and no meaningful core education. She explained B had only basic literacy skills and could not engage with the lessons given by Provider 1 or use its software. At the conclusion of the meeting, the provider agreed to give the Council more detail about the education B was receiving.
20. In October Provider 1 submitted the annual review report to the Council, which enclosed information about the education it said it was for providing for B. This included several different types of therapy, alongside a limited amount of core academic provision. The Council says it reviewed this information and “acknowledged the updated provision and progress”, and then continued to monitor the situation.
21. Between January and April 2024, the Council says it took part in extensive discussions with Miss C and Provider 1, to establish what education B was receiving and to resolve Miss C’s concerns. However, in April, Miss C told the Council she no longer wished for Provider 1 to work with B, and asked it to arrange a tutor instead. The Council says it considered Miss C’s request, but felt the information she had provided differed from the reports it had received from Provider 1.
22. In May the Council consulted with another specialist provider (Provider 2) at Miss C’s request. Provider 2 responded to say it did not believe it could meet B’s needs.
23. In June Miss C made a formal stage 1 complaint to the Council. She said the Council had failed to ensure Provider 1 had met B’s educational needs, and that, despite the significant funding the provider was receiving from the Council, it was Miss C herself who was tutoring B. She also complained the Council had failed to review and update B’s EHC plan.
24. The Council responded to Miss C’s stage 1 complaint in July. It acknowledged the annual review of B’s EHC plan had been outstanding since September 2023. It also noted Miss C had recently requested another annual review be held, but the Council said it would instead complete the existing review, and notify her when it had decided whether to amend or maintain the EHC plan.
25. The Council explained the outcome of its consultation with Miss C’s preferred provider. It said that, as it was near the end of the academic year, it would not be possible to hold another annual review, and that it would be better to allow B’s (as yet undecided) post-16 placement to hold the next review.
26. In August Miss C submitted a stage 2 complaint. She said the Council’s response had not addressed her first point of complaint, about the lack of education B had received from Provider 1. She noted the Council had now provided a draft amended copy of B’s EHC plan, but said the proposed changes did not make it suitable for his needs, and provided a copy with annotations showing what changes she felt should be made.
27. In September the Council formally withdrew B from Provider 1’s service. It also responded to Miss C’s stage 2 complaint. The Council noted the annual review of B’s EHC plan had taken place the previous September, and that the review report suggested setting a basic academic target for B, with the intention this be reviewed during the subsequent annual review meeting. The Council noted this review was now due.
28. The Council explained Miss C could now express a preference for B’s new placement as part of her response to his draft amended EHC plan, and that she would have the right of appeal against whatever decisions the Council made when it issued the final version of the plan.
29. In October Miss C wrote again to the Council, asking it to escalate her complaint to ‘stage 3’. The Council responded to say it would take between 25 and 60 days for it to address this, depending on how quickly it could appoint an independent investigator.
30. After hearing nothing further, in December Miss C chased the Council for its response. The Council replied to explain there was no further stage of escalation after stage 2, although it acknowledged it should have signposted Miss C to the Ombudsman in its stage 2 response and apologising it had failed to do so.
31. In January 2025 Miss C referred her complaint to the Ombudsman.

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Legal background

32. 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.
33. 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) 
34. If the council decides not to amend an EHC plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
35. 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.

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Analysis

36. I will address each point of Miss C’s complaint in turn.

Delay in completing the annual review of B’s EHC plan

37. After the annual review of B’s EHC plan in July 2023, a second review was held in September 2023. As the Council eventually decided to issue an amended EHC plan for B, it should have done so within 12 weeks of the date of the review, giving a deadline of 6 December 2023.
38. However, at the date of Miss C’s complaint to us in January 2025, the review remained outstanding, with the Council having only issued a draft amended version of the plan in July 2024. Miss C has explained the Council has now issued a final amended plan for B, but only following another annual review in March 2025, meaning the Council never actually completed the September 2023 review. This is fault.
39. I will consider what injustice this fault caused, and what steps the Council should take to remedy it, towards the end of my decision statement.

Failure to ensure B was receiving education

40. During the September 2023 annual review meeting, the Council related to Provider 1 Miss C’s concerns about the education B was receiving there. In response to this, in October the provider gave the Council more details, as part of the annual review report. Although it has not said so explicitly, the Council’s comments about this imply it was satisfied with the provider’s information.
41. I acknowledge Miss C is unlikely to share the Council’s view on this, but I am unable to consider this further as it falls outside the time period I have investigated. Even if it did not, it is not for me to make my own decision about the suitability of educational provision; my role is rather to identify whether there is any administrative fault in how the Council made its decisions.
42. In April 2024, Miss C asked the Council to provide a tutor for B. I will note at this point there appears to be some inconsistency in the evidence on this element, because it suggests Miss C intended the tutoring to be both in addition to, and also as a replacement for, Provider 1. I cannot say which is accurate.
43. Either way, the Council says it considered Miss C’s request at a multi-agency panel, and initially refused it because it needed more information from Provider 1. After the provider submitted the information, the panel reconsidered the request, but maintained its refusal, because it did not agree the evidence showed a need for B to receive tutoring in addition to this current provision. The panel also recommended the Council consult with Provider 2, which it did, but unfortunately Provider 2 responded negatively to this.
44. Again, I appreciate Miss C did not share the panel’s view on the need for a tutor. But there is no reason for me to believe the Council failed to consider it properly, and without this, I have no grounds to criticise its decision. That Miss C disagreed with the Council’s opinion of the situation does not mean it was at fault.
45. This is not to disregard Miss C’s comment that she was tutoring B herself, to make up for what she saw as gaps in the education he was receiving from Provider 1. However, the Council does not supervise education on a day-to-day basis, and neither the Council (nor, for that matter, the Ombudsman) can consider complaints about educational providers. The Council’s role here was to satisfy itself, in the general sense, that the package the provider had arranged was adequate for B.
46. I am conscious B stopped attending Provider 1 entirely in September 2024, and Miss C complains the Council has not arranged a new educational place for him since then. As this issue post-dates Miss C’s complaint to the Council it is not something I can consider as part of this investigation.
47. Taking these points together, I find no fault in this element of Miss C’s complaint.

Complaint handling

48. In her complaint to the Council, Miss C raised the fact B was not receiving meaningful education from Provider 1, and that she was having to do this herself instead. However, neither the Council’s stage 1 nor stage 2 response made any reference to this issue at all. This was despite the fact Miss C specifically highlighted the Council had overlooked this when escalating her complaint to stage 2.
49. This is fault. Although I do not have grounds to criticise the Council on the substantive point itself, for the reasons I have set out in the previous section, this was still an important element of Miss C’s complaint, and so the Council should have addressed it in its response. I consider the Council’s failure to do so caused Miss C frustration, which is an injustice.
50. Separately, I am also concerned about the Council’s handling of Miss C’s ‘stage 3’ complaint.
51. The Council’s published corporate complaints procedure says it includes two stages, and that any person who still wishes to pursue their complaint after stage 2 should approach the Ombudsman. This procedure is common to most local authorities.
52. There is also a separate, statutory complaints procedure for children’s social care services, which involves three stages. However, this procedure does not apply to complaints about education and so was not relevant here.
53. It appears possible Miss C had conflated the two procedures, and this is why she believed she could submit a stage 3 complaint in this instance. I can appreciate how she might have come to misunderstand this.
54. However, for reasons which are unclear, the Council then confirmed it had accepted the complaint at the stage 3, and gave Miss C a deadline for response. And it was only in December, after Miss C had chased the Council for a response, that it corrected its error, and told her she must now approach the Ombudsman if she wished to pursue her complaint further. It also acknowledged it should have signposted her to us at the end of its stage 2 response. Therefore this is a further point of fault by the Council.
55. Given Miss C approached us within the space of a few weeks after receiving this message, I consider it reasonable to assume she would have done so in a similar period, had the Council advised her to do so in September. This means Miss C’s complaint to the Ombudsman was unnecessarily delayed by approximately three months, which again is an injustice to her.

Conclusions and injustice

56. I have found fault by the Council because of its failure to complete the September 2023 annual review of B’s EHC plan, because it did not address a key element of Miss C’s complaint in its response, and because of the confusion it caused by wrongly accepting a ‘stage 3’ complaint from Miss C.
57. But I have not found fault by the Council in Miss C’s complaint that it failed to ensure B was receiving a proper education.
58. Given, especially, the length of time involved, I consider the Council’s failure to complete the annual review represents a significant injustice to Miss C. However, I cannot point to any precise substantive impact this had, bearing in mind the limited engagement B was having with Provider 1 at the time. Therefore, I consider the injustice arising from this fault is one of uncertainty.
59. And, as I have explained, I consider the injustice caused to Miss C by the Council’s poor complaint handling is one of frustration.
60. Our published guidance on remedies says, where we find a fault has caused the complainant distress (which can include uncertainty and frustration), we will recommend up to £500 as a remedy. Taking everything together, I consider a remedy of £500 is appropriate here.
61. I also consider the Council should write a formal letter of apology to Miss C to reflect on its fault, and its impact on her.

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Action

62. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Miss C £500 to reflect the uncertainty and frustration caused by its faults in this case; and
• write a letter of apology for the same reason. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.

63. The Council should provide us with evidence it has complied with the above actions.

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Decision

64. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman