Summary: The outcome of an independent stage two complaint investigation did not provide a suitable remedy when A missed education. The Council failed to secure special educational provision and failed to provide alternative education. The Council has agreed to make additional symbolic payments and service improvements.

The complaint

1. Ms X makes the following complaints about the Council:
• Her child, A, missed out on education as they were subject to unofficial exclusions and placed on a part-time timetable in 2023;
• A was without any education in Autumn / Winter 2023/4;
• Delay in reviewing A’s Education, Health and Care (EHC) Plan.
2. Ms X also complains about the actions of two schools in 2023.
3. Ms X says the alleged fault meant A missed out on education and the Council has caused the family unnecessary time, trouble and distress.

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it. However, we may look at whether there were any flaws in the investigation 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 whether it has completed any recommendations without delay.
8. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
9. 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)
10. 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.
11. 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)

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What I have and have not investigated

12. I have investigated the actions of the Council only. I cannot investigate the actions of the two schools; these are outside our jurisdiction.
13. I have not reinvestigated events set out in the stage two independent investigation. I have considered if there are flaws in that investigation that calls the findings into question and whether the Council has completed agreed actions without delay.
14. I have exercised discretion to consider events back to January 2023 even though this is more than twelve months before Ms X came to the Ombudsman because:
• This covers the twelve months before Ms X raised a formal complaint.
• Much of the subsequent delay was due to delay in the complaint process.
• The Council and stage two investigator have included this period in their consideration of the complaint.
15. I have not investigated new concerns Ms X has raised about A’s education after they started their new school in early 2024. These have not yet been considered through the Council’s own complaint process. (Local Government Act 1974, section 26(5))
16. I have investigated if the Council delayed in updating A’s EHC Plan in 2023 and 2024 as this was an agreed outcome from the complaint process.

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How I considered this complaint

17. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
18. I have considered the independent stage two investigation documents.
19. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
20. 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 found

Factual background

21. In early 2024, Ms X complained to the Council that her child, A, who had an Education, Health and Care (EHC) Plan:
• Was frequently sent home early or suspended from school from early 2023 as the school could not manage A’s behaviour.
• Did not attend a full week of school between Autumn 2022 and Autumn 2023.
• Could not access hearing support or speech therapy as they were not in school fulltime.
• Was subject to restraint techniques at school which caused trauma.
• Was temporarily transferred to another school without notice and kept on a part-time timetable.
• Was assaulted by a member of school staff and then transferred back to the original school.
• Was placed on a part-time timetable on returning to the first school, without parental consent, because the school did not have adequate teaching assistant support to allow fulltime attendance and the school expected parents to provide support in school.
22. Ms X also complained the Council delayed completing the annual review of the EHC Plan for six months in 2023 and the EHC Plan was not kept updated.
23. Ms X removed A from school following a safeguarding incident in Autumn 2023. A was then without education until they started a new specialist school in February 2024.
24. Ms X says A significantly regressed and missed out on education and specialist therapy.
25. The Council replied to the complaint in early 2024. It said it could not investigate complaints about schools but confirmed it had visited the schools in response to concerns she raised including about safeguarding.
26. The Council said schools employ teaching assistants and where there is a shortfall and they need extra funding, schools can apply to the Council. The Council says it did not receive any request for extra funding.
27. The Council said as A was not in school, they could not access therapies in their EHC Plan, but noted A was now being seen by the NHS speech therapist. The Council said it had raised concerns that health professionals were not seeing children who were not in school with the Designated Clinical Officer.
28. The Council upheld the EHC Plan was not reviewed within the statutory timeframe in 2023; while it could delegate arrangements for the review meeting to the school, it was the Council’s responsibility to ensure the annual review process was completed on time.
29. The Council upheld it had not provided a suitable school place due to a shortage of specialist provision after Ms X withdrew A from school in Autumn 2023. It said a place had now been agreed and A would start their new school after February 2024 half-term.
30. The Council held a meeting with Ms X to consider her complaints further. It said there were three issues under consideration:
• A’s EHC plan had not been updated since 2021;
• The annual review meeting in 2023 was delayed by six months;
• A was not yet back in education.
31. The Council confirmed it had completed the 2022 annual review by issuing a decision not to amend the Plan.
32. The Council accepted there was a six-month delay in holding the 2023 annual review meeting, this was held in Autumn 2023, shortly before Ms X withdrew A from school.
33. The Council said transition visits to the new school were due to start imminently and funding had now been agreed for A to attend.
34. The Council apologised for the delay in the 2023 review and that there had been delay in A accessing education at a new school.
35. Annual review documents for Spring 2024 confirmed A did start a new specialist school in February 2024 and was noted to be making progress in all areas of the curriculum.
36. The Council investigated Ms X’s complaint through the statutory children’s complaint process at stage two. This was because Ms X raised complaints about her other children, and these included some concerns about social care. The Council later stated that as the complaints were predominantly about education it could have used the faster corporate complaint process. It apologised and offered Ms X £200 to acknowledge delay in investigating her complaints.
37. The stage two was not completed until early 2025. This found:
• There was a lack of teaching assistant support at school in 2023, but the investigator found this was due to recruitment issues within the school and not lack of funding by the Council. The complaint against the Council was therefore not upheld.
• There was further delay by the Council after the Autumn 2023 annual review meeting when A changed schools. A second review meeting was held in late Spring 2024, but the Council should have updated the Plan in Autumn 2023, not waited for the new school to hold another review meeting.
• The Council had not refused a specialist school place, but A did miss 13-14 weeks of education in Autumn / Winter 2023/4 before this started. They also missed some of their special educational provision, for example speech therapy in this period.
• A’s previous school had moved them to a partner school for six months in 2023, but the Council was not informed about this by the school at the time.
38. The outcome of the stage two was the Council accepted the above findings and offered Ms X:
• £200 for drift and delay in the complaint process.
• £900 to acknowledge A missed two half terms of education. This figure was stated to be in line with the Ombudsman’s Guidance on Remedies.
39. The Council accepted some teaching assistant support had been missing which affected A’s attendance at their previous school but said it had backdated funding to the school and so did not consider it was at fault.
40. An amended final EHC Plan was not issued by the Council until after the independent stage two investigation in early 2025.

Analysis

41. The process for reviewing EHC Plans is set out in the Children and Families Act 2014 and the Special Educational Needs (SEN) and Disability Regulations 2024.
42. Councils must review EHC Plans at least once a year by ensuring an annual review meeting is held and then deciding whether to amend, not amend or cease the EHC Plan within four weeks of the meeting. Where the decision is to amend, councils must provide the draft amendments within four weeks of the meeting and finalise the Plan within twelve weeks of the meeting. The review is only complete when the Council issues a decision after the meeting.
43. The stage two investigation found no fault in the 2022 review. The Council did issue a decision not to amend.
44. The Council has accepted there was a six-month delay in holding the 2023 review meeting; while it was the school’s responsibility to arrange this, it was the Council’s responsibility to ensure a review took place. The Council has accepted this was fault. It has accepted the stage two finding it should have amended the EHC Plan in late 2023, after the review meeting and when Ms X had withdrawn A from school, not waited for the new school to hold a further review in Spring 2024.
45. In addition to the stage two findings, I find the Plan was not updated after the Spring 2024 review until early 2025, a year after A started their new school. This was a repeat of the previous delay and fault identified by the Council in its own complaint process and extended the period of injustice.
46. Ms X was denied a right of appeal between Autumn 2023 and early 2025. This was an injustice.
47. The Council accepted the stage two finding that A missed education in Autumn / Winter 2023/4, including specialist therapy. It offered £900 for the equivalent of one term of missed education. It stated this was in line with Ombudsman Guidance. The range of financial payments in our Guidance on Remedies is £900-2400 per term. The high end of the range would be used for a child with special educational needs who receives no education and the lower range where a child missed out on only part of their provision. I find the payment is therefore too low as A received no education for two half terms.
48. While the Council has accepted A missed out on provision in 2023 due to the school not providing teacher assistant support, it has not accepted this was fault by the Council and not offered any remedy. The stage two investigator has also not criticised the Council for the lack of support.
49. It is clear the school did not keep the Council informed, for example the Council was unaware of A being moved to a partner school. It is also not clear to me that Ms X raised complaints with the Council at the time that special educational provision was not in place. However, there also appears to be an inconsistency in the Council’s position in that it says it backdated funding, which would imply the school may not have had the funds to recruit staff at the relevant time.
50. I consider the Council and stage two investigations are flawed on this issue and this casts doubt on the findings. The Council has a duty to make sure a child 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)  
51. 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. 

52. The Council accepts A did not have the necessary level of teaching assistant support in 2023. This is evidence that the Council did not check its s.42 duty had been discharged and all support was in place when A joined this school. This was fault.
53. It is unclear the extent to which teaching assistant shortages were responsible for A’s disrupted education in early 2023. We do not know with any certainty whether a fulltime teaching assistant would have meant a different outcome given Ms X has raised other concerns about this school and their ability to meet A’s needs. There are also factual differences about how much education A missed between January and July 2023. When A returned to the first school Ms X says she was asked to act as her child’s support. However, this appears to have been for a limited time as Ms X says fulltime teaching assistant support was in place in Autumn 2023 and Ms X then withdrew A from the school for different reasons shortly after.
54. The uncertainty about whether the outcome may have been different had the Council checked all special educational provision was in place at the outset is itself an injustice.
55. The Council has acknowledged it did not need to use the lengthy independent stage two complaint process, and this had added extra delay. I consider its offer of £200 for this element of the complaint and an apology is a satisfactory remedy for the injustice caused.

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Agreed Action

Within four weeks of my final decision:

56. The Council will apologise to Ms X for the further faults identified in this decision statement.
57. The Council will pay Ms X the £200 for the delay in complaint handling if this has not already been paid.
58. The Council will pay Ms X £250 to acknowledge the impact of the delay in processing annual reviews and updating the EHC Plan between 2023 and 2025, including lost appeal rights.
59. The Council will pay Ms X, on behalf of A, £2400 for the period they were without education in Autumn/Winter 2023/4. If the Council has paid £900 agreed at stage two it should deduct £900 from this figure (i.e. £1500 would be payable).
60. The Council will pay Ms X, on behalf of A, £500 for the distress and uncertainty resulting from the Council’s failure to check special educational provision in A’s EHC Plan was secured in 2023.
61. The Council will remind its staff of:
• The need to complete annual reviews and amendment of EHC Plans within statutory timeframes.
• The need to check special educational provision is in place and be able to evidence how it has discharged its duty under s.42 Children and Families Act 2014.
• The need to consider if a duty under s.19 Education Act to provide alternative education is triggered when a child is unable to attend school due to exclusion, illness or otherwise and to be able to evidence the decision made and reasoning for the decision.
62. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman