Summary: Mrs X complained the Council failed to provide education for her child Y. She also complained about how it handled Y’s Education, Health and Care Plan. The Council was at fault. Action taken by the Council prior to, and during, the course of, this investigation has provided suitable remedy for the injustice caused to Y. No further recommendations will be made.

The complaint

1. Mrs X complained the Council failed to provide full time education to her child, Y, when they were unable to attend school.
2. She also complained about how the Council handled Y’s Education, Health and Care (EHC) Plan, including its annual review.
3. Alongside the worry and distress experienced by Mrs X, she said the impact of the situation on Y has been profound. They have been without education for several years, and their mental health has deteriorated dramatically. Y has also been socially isolated during this time, further exasperating the decline in mental health and wellbeing.

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The Ombudsman’s role and powers

4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

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What I have and have not investigated

8. Mrs X complained about matters dating back to 2020. Mrs X complained to the Council in December 2023. The Council concluded a three-stage complaint procedure in October 2024. Mrs X complained to the Ombudsman in January 2025.
9. I have no evidence to suggest that Mrs X could not have complained to us sooner. Therefore, I have considered matters that took place from January 2024. Matters pre-dating this are late.
10. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. This independence is not available to complaints put through the corporate complaint’s procedure. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
11. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
12. Some of Mrs X’s complaint points relate to decisions made by the Council that she could have asked a Tribunal to consider. I will not go into detail about these points, because I am not investigating the substantive matters complained of, in any detail. Rather, I am considering the Councils investigation process, findings and subsequent action taken by it in response.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs 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

15. 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. 
16. 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)  
17. 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) 
18. 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.

What happened here

19. This is a summary of key events that took place in the period investigated. It is brief. It is not a list of everything that happened.

EHC Plan Annual Review – 2024 and 2025

20. Y’s EHC Plan annual review was due in November 2023. It did not take place.
21. Y’s EHC Plan annual review was held in January 2024.
22. The Council should have written to Mrs X to tell her of its intention to review the plan with a draft version of the plan, by mid-February.
23. This did not happen until April 2024, a delay of approximately 8 weeks.
24. Subsequently the Council should then have issued the final plan by mid-April. This did not happen until mid-May, a delay of approximately 4 weeks.
25. When Y moved to the new education setting in September 2024 the Council said the school thought the EHC Plan annual review for 2025 was due in May because of the date of the last final review.
26. The school arranged a review for May 2025, which took place.

Educational Provision

27. At the start of January 2024 Y was on roll with a school that was well informed about their needs. Y was not attending school. The Council believed the school to be well equipped to provide the education, and associated intervention, outlined in Y’s EHC Plan.
28. Over the next few months, the Council worked with Y’s parents to implement alternative education at home, and at the same time, source a new education placement.
29. A new placement at a new setting was agreed in June 2024.
30. It was hoped Y would start at the new setting in July 2024, but due to Y’s health and support needs at the time, it was agreed Y would start properly in September 2024.

Complaint Handling

31. At the start of December 2023 Mrs X complained to the Council. She said the Council:
• Failed to provide suitable education to Y,
• Failed to provide alternative education to Y,
• And left Y without any education for over three years.
32. The Council made its response at stage one of the statutory procedure, at the end of December. It covered from 2021 onwards. This is out of scope for this investigation. However, in summary, it said:
• It became aware of Y needing support in June 2021, when Mrs X asked the Council for an EHC needs assessment,
• The Council had been working with Mrs X to identify provision and re-engage Y in education,
• Summarised the options provided to Mrs X, by the Council, some of which were declined,
• Acknowledged issues with quality, delay and communication, and apologised to Mrs X about these, and
• Informed Mrs X about how to escalate her complaint.
33. Although the Council acknowledged fault, it did not explicitly state whether it upheld any of Mrs X’s complaint points.
34. Mrs X asked for her complaint to escalated. She was not happy with the Councils response.
35. After discussing the complaint points in detail with Mrs X, the Council launched a stage two investigation into the complaint in May 2024.
36. In July the Independent Investigating Officer (IIO) and the Independent Person (IP) completed their reports.
37. In August Mrs X received the adjudication letter from the Council. It summarised the complaint. It summarised the outcomes Mrs X wanted. It summarised the points that were upheld, partially upheld or not upheld, in the IIO’s findings.
38. Mrs X asked the Council to progress the complaint to stage three of the procedure. She was not happy with its response.
39. At the start of October, a stage three review panel was held.
40. At the end of October, the Council made its response to Mrs X at stage three. This was the Councils stage three adjudication letter.

My findings

Education, Health and Care Plan

41. The Council explained its process for notifying education settings of annual review schedules. It said it updates settings in July each year. It said because Y did not start school until September 2024, it did not share a schedule with the new setting. It acknowledged its fault and the impact this had on delay.
42. The Council said oversight of the annual review process is an area for concern. It advised that Ofsted carried out a SEND Inspection in 2023, and that as a result action has been scheduled on a systemic level.
43. The Council now must implement the action it agreed because of the Ofsted inspection. The Ombudsman would expect to see a period of implementation take place, to reduce likelihood of fault that occurred here, happening again. We will monitor the Councils handling of the annual review process in the forthcoming months.

Complaint Handling

44. Handling this complaint via the children’s statutory complaints procedure was unexpected because usually complaints relating to children’s social care are heard via this route. However, it afforded Mrs X an independent investigation into her complaint.
45. The stage two adjudication letter from the Council did not include a proper response from the Council to the findings made in the stage two investigation. The point of the adjudication letter is not to provide a summary. This is all the letter did. It should explain how the Council intends to act, or not, and give clear rationale for each point.
46. Failure to provide an appropriate adjudication letter was fault by the Council. This fault resulted in confusion and further frustration for Mrs X. It is highly likely it contributed to her feeling she needed to ask for escalation to stage three of the procedure.
47. The fault was rectified via the stage three process. In the opening paragraphs of the adjudication letter, the Council explained the action it intended to take, because of the findings of the investigation. It highlighted and explained changes in complaint points being upheld (partially upheld, or not), from stage two to three. It addressed each recommendation by explaining the action the Council would take to address it. It offered Mrs X a symbolic payment of £500 recognising ‘time, trouble and anxiety’ resulting from delays.
48. As part of this investigation, I made formal enquiries of the Council. I asked the Council to provide evidence of how it implemented the changes it said it would. It provided a thorough response. It shared template documentation, and updates to relevant policy and procedure. It explained how the Council maintains oversight of implemented changes, and the role of data collection in this process. I am satisfied the Council took the action it said it would, to a standard which should bring about meaningful change.
49. Recruitment and staff retention was referred to by the Council as a factor in Mrs X’s experience of poor communication and a poor-quality service. While data protection considerations limit what can be explicitly shared about this, I am confident the Council took steps to address failings, that included management of its staff.

Remedy

50. A payment of £500 has already been made to Mrs X to recognise ‘time, trouble and anxiety’ because of delays in the Councils actions.
51. The Council recognised its own fault to provide a suitable education to Y. It recognised poor quality service, poor communication, and issues around timeliness as areas of fault. It acknowledged the impact of the fault upon Y’s education. During this investigation, the Council offered to make a payment to Mrs X of £3,600 to recognise the loss of educational provision over four school terms. I have considered the actions of the Council, during the period investigated, and the impact of the situation on Y, and Y’s family. I have found this payment to be in line with our guidance on remedies. It is now for Mrs X to decide whether she would like to accept it.
52. The Council made meaningful apologies to Mrs X, as part of the complaint process.
53. The stage three adjudication response was properly completed. The Council may wish to make a comparison between the stage two and stage three adjudication responses, to inform future learning.
54. I recommend no further action be taken.

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Decision

55. I find fault causing injustice. The Council has taken action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman