Summary: Ms X complained the Council did not review her child Y’s Education, Health and Care (EHC) Plan in line with the statutory guidance and failed to identify a new school placement when Y’s school said it could no longer meet their needs in 2023. The Council was at fault. Y missed out on some of their specialist educational provision for three terms which caused Ms X avoidable frustration and uncertainty. The Council will apologise, make payments to remedy the injustice and issue its decision following an annual review of Y’s EHC Plan in December 2024 without further delay.

The complaint

1. Ms X complained the Council failed to ensure her child Y had a caseworker and so it did not review their Education, Health and Care (EHC) Plan in line with the statutory guidance and failed to identify a new school placement when Y’s school said it could no longer meet their needs following an annual review meeting in 2023. Ms X said Y had missed out on special educational provision and their EHC Plan did not reflect their needs. Ms X wanted the Council to recognise its faults and recompense Y for the provision they missed.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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

8. I have investigated what happened between October 2023 when Ms X raised her concerns with the Council, and December 2024 when the Council held a further annual review meeting.
9. I have investigated matters that happened after the Council’s final response to Ms X in July 2024 because I consider they are matters of continuing fault and injustice, and I have sufficient evidence to reach a sound and balanced decision.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. 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

Relevant legislation and guidance

Education, Health and Care Plans

12. 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. Section I sets out the name and/or type of educational placement the young person should attend.

Provision

13. 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)  
14. 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. 

Reviews

15. 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) 
16. 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.
17. 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.

Appeal rights

18. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

Alternative provision

19. 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.
20. 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)

Council’s complaint policy

21. The Council operates a single stage complaints process. It directs complainants to us if they remain dissatisfied following the Council’s response.

Complaint Handling Code

22. The Ombudsman’s Complaint Handling Code sets out a good practice process for organisations that allows them to respond to complaints effectively and fairly. The Code is available on our website.

What happened

23. Y is a young person of secondary school age who lives with their mother, Ms X, and siblings. They have special educational needs that means they find it difficult to regulate their emotions and contain their impulsive behaviour. Y needs special educational provision and has an EHC Plan. At the time of the events investigated Y attended School 1 which was an independent school for young people with behavioural, social, emotional and mental health issues and was named in their EHC Plan. In June 2023 Y had 70% attendance.
24. Y’s EHC Plan set out they needed targeted provision from a teaching assistant or mentor and small group interventions. In addition to the support in class, each week Y should receive specific interventions of:
• 50 minutes of conversational skills
• 50 minutes of social skills
• 30 minutes of mentoring
• Two sessions of 50 minutes of literacy and numeracy
• 50 minutes of social and emotional support
• 30 minutes of perspective taking support
25. In October 2023 Ms X raised concerns with the Council about Y’s placement at School 1 and the impact on Y’s education as Y kept being sent home from school. The Council contacted School 1 and asked if there had been a breakdown in the placement and said if so an emergency review of Y’s EHC Plan would be needed.
26. School 1 called an emergency review meeting. The meeting was held at the beginning of December 2023. A Council case officer attended the meeting. School 1 said it could no longer have Y at the school and could not meet their needs. The record of the meeting shows the attendees recommended Y needed a special school. It said Y’s attendance was at 40%. At the previous review in June 2023, their attendance had been 70%. It recorded Y was not making progress, their behaviour had deteriorated and they seemed stressed and anxious. The case worker told School 1 it needed to use different strategies. School 1 recorded it would no longer offer Y a place as it could not keep Y, the staff and other pupils safe as it could not meet Y’s needs and manage their behaviour. It also confirmed this in a telephone call to the Council.
27. When School 1 sent the review documents to the Council the final page of a 14-page document had not been amended from the previous review. It recorded the date as June 2023 and that Y’s EHC Plan should be maintained without amendments.
28. The Council told me there was an agreement at the annual review meeting that School 1 would continue to work with Y and explore other strategies and the matter would be reviewed in Spring 2024. The Council also said it had documentary evidence of it considering other placements, however it did not provide that evidence,
29. The following week School 1 wrote to Ms X and said after discussing the matter with the Council it confirmed it would end Y’s placement once the Council had found a more suitable placement. It said this was due to a breakdown in communication between Ms X and the school, and Y not following the school’s code of conduct.
30. The next week the Council wrote to Ms X with its decision that Y’s placement at School 1 was appropriate and it would maintain Y’s EHC Plan. The Council told me it did this on the basis the final page of the review stated the Plan should be maintained, which it now identified as an error on the part of School 1. The letter included Ms X’s right of appeal if she disagreed with the decision to the SEND Tribunal.
31. School 1 sent Ms X an email at the end of December 2023 and copied in the Council. It told Ms X it had spoken to the Council and the letter the Council had sent to maintain Y’s Plan and placement at School 1 was sent in error and Ms X would receive the correct document in due course from the SEN department at the Council.
32. Ms X asked the Council for support as Y was anxious about attending school in January 2024. There is no record of the Council’s response.
33. School 1’s attendance records show Y’s attendance continued to decline. Y was excluded for a few days in March 2024 and barely attended School 1 afterwards. The records show School 1 continued to send Y’s attendance records to the Council.
34. Ms X complained to the Council in July 2024. She complained about how the Council had assessed and planned for EHC Plans. Ms X said Y was struggling, the Council had not helped and wasted their time by not taking any action. Ms X said she had been trying to contact the case worker for months and had just found out they had left the Council without informing her. Ms X said she wanted compensation and accountability.
35. The Council responded to Ms X’s complaint and said it would be in a position to confirm the name of Y’s case worker by September 2024. The Council did not provided any evidence that it did so.

Ongoing matters

36. In November 2024 School 1 asked the Council for update on Y’s placement as it understood it was consulting other schools in December 2023. It told the Council Y was on a reduced timetable of six hours a week since September 2024 and it was sending work home but Y was not completing it. It said Y was extremely unhappy, was struggling to attend and their mental health was getting worse.
37. The Council held a further annual review in mid-December 2024 it recorded Y’s attendance for last academic year had been 12.5%. It said Y felt rejected by the school. It said the reduced timetable since September was not working as Y did not like it. It recorded that neither School 1 nor Ms X were aware the Council was not taking action to find an alternative placement. It recommended Y’s EHC Plan be amended and suggested they should attend a special school.
38. At the time of this decision the Council had not issued its decision as a result of the EHC Plan review.

My findings

Annual review

39. The Council was aware from December 2023 that School 1 said it could no longer meet Y’s needs and wanted to end the placement. Following the emergency annual review meeting in December 2023 School 1 and Ms X were both of the understanding the Council would be seeking a different placement for Y. The Council told me it considered other placements following the annual review. According to the school’s communication with Ms X the Council issued its decision to maintain Y’s Plan in error. The Council did not contradict this in any follow up communication to Ms X.
40. The Council suggested in its response to my enquiries there was an agreement at the meeting that School 1 would explore other strategies and the matter would be reviewed in the spring of 2024. I am not persuaded by that as there is no contemporaneous record of that decision, it is not supported by the documentary evidence and the discussion recorded in the review meeting, and there is no evidence of a review being called or held in the spring of 2024. On balance, the evidence supports the Council had decided Y’s placement at School 1 was no longer suitable and their Plan should be amended in December 2023.
41. The statutory guidance sets out the Council should have issued its decision to amend Y’s EHC Plan and a draft amended Plan within four weeks of the review meeting, and gone on to issue the amended final Plan within a further eight weeks and so by mid-February 2024. The Council issued a letter maintaining Y’s Plan in error, the error was identified by and discussed with School 1, who confirmed the error to Ms X. In its response to my enquiries the Council confirmed the letter was issued as a result of the error on the review paperwork. The evidence clearly shows the decision was made on erroneous information and therefore it was not reasonable for Ms X to appeal. The Council should have issued a new decision letter when the error was brought to its attention by School 1 and its failure to do so is fault.
42. The Council held a further review in December 2024. It should have issued its decision to maintain, cease or amend Y’s EHC Plan within four weeks. The Council has not issued its decision at the time of this decision which is a delay of 24 weeks and is fault.
43. The overall delay identified in paragraphs 41 and 42 amounts to 15 and a half months and has prevented Ms X from appealing the content of Y’s EHC Plan to the SEND Tribunal and Y from having an EHC Plan that meets their needs.

Provision

44. The Council did not take any action to identify a new placement for Y. School 1 said it could not meet Y’s needs although it agreed to keep their place while an alternative was identified. The Council should have ensured Y had a suitable placement that could meet their needs and ensured the provision was secured for them. The Council did not do so despite a further request for support from Ms X in January 2024, and her complaint in July 2024. The failure to do so was fault. The records show Y became more disengaged from education, attended less and was temporarily excluded from School 1. And so Y did not receive all the specialist provision set out in their Plan between December 2023 until December 2024.
45. The Council did not consider if it owed Y a section 19 duty of alternative provision when they were unable to attend School 1. Although the placement was available to Y, the Council did not consider if it was suitable or accessible. This was fault and leaves Ms X with uncertainty about what action the Council would have taken. However, I cannot know what injustice this caused Y as I do not know what action the Council would have taken, or what provision Y would have accessed, had the Council acted without fault.
46. In a recent unrelated investigation we recommended the Council remind officers dealing with EHC Plans of the Council’s responsibility for ensuring provision in an EHC Plan is in place. That reminder included the need to liaise with the education provider if a parent/carer raises concerns about provision not being in place. I have therefore not made a further recommendation on that point. We will monitor this through our ongoing casework.

Complaint handling

47. When Ms X contacted the Council it did not explore her complaint to ensure it fully understood the matters complained of. This was particularly important as the Council operates a single stage complaint process which does not allow for further consideration of a complaint if it is not fully addressed initially. The failure to establish and respond to all parts of Ms X’s complaint was fault and meant that the Council failed to properly consider the substantive part of Ms X’s complaint about Y’s EHC Plan and placement. This caused Ms X frustration and distress.
48. The Council told Ms X it would inform her of who the case worker was for Y in September 2024. The Council did not do so. The failure to complete the outcome it identified was fault and caused Ms X frustration.

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Action

49. Within one month of this decision the Council will:
1. Write to Ms X and apologies for the injustice caused to her and Y by the faults identified in the Council’s actions. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Ms X a symbolic amount of £500 to recognise the delayed appeal rights, uncertainty and frustration she has been caused by the identified faults.
3. Pay Ms X £3,600 to recognise the three academic terms between December 2023 and December 2024 that Y did not have an EHC Plan that met their needs, and did not receive all the specialist provision set out in their EHC Plan. This takes into account Y’s specific circumstance at the time and that the placement at School 1 remained available to them. Ms X should use the payment for Y’s educational benefit as she sees fit.
4. Issue its decision, and relevant appeal rights, following the December 2024 annual review meeting.
5. Ensure all officers responding to complaints are aware of our Complaint Handling Code, with specific reference to section 5.4 which states the person responding to a complaint should:
1. Clarify with the complainant any parts of the complaint they are unclear about; and
2. Give the complainant a fair chance to set out their position.
50. The Council will provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman