Summary: The Council has accepted that it failed to provide the special educational provision for the complainant’s brother. We agree with the Council’s findings, but we considered the Council had not fully recognised the injustice caused by the loss of education for the brother and avoidable distress to the family. The Council has now agreed to make a symbolic payment for this injustice. We are therefore closing the complaint.

The complaint

1. Mr X, who represents his disabled brother, Y, complained that the Council failed to provide appropriate education to Y in accordance with his Education, Health and Care (EHC) Plan of July 2022, it failed to assess and provide for Y’s Occupational Therapy (OT) and Speech and Language Therapy (SALT) needs and to review the EHC Plan annually.
2. This has meant that Y has missed out on receiving appropriate education and help and support for his speech and language difficulties. Mr X and his parents have also been caused avoidable distress and time and trouble in resolving the situation.

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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.
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. 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).
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(1), 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. Mr X has been aware of this problem since September 2022. He complained to the Council in July 2024 and to us in March 2025. Normally, we will not investigate complaints unless made within 12 months of the person realising something had gone wrong, although we do have discretion.
11. Mr X believed the Council was trying to find his brother an educational placement since September 2022, and he was told this. Mr X says that he was unaware that the Council could provide education at home, and it never explained to him that this was a possibility. In addition, the Council was looking for a specialist placement which reinforced the idea that this is all which could be offered.
12. However, I consider that, despite Mr X being unaware that there was an alternative to a specialist placement, I remain of the view that Mr X could have complained sooner, both to the Council and to us, given it was clear that his brother was not receiving the EHC provision. Therefore, I have exercised discretion to look at the complaint from September 2023.
13. In July 2024, the Council decided to cease the EHC Plan without going through the correct process. Mr X appealed to the Special Educational Needs and Disability Tribunal (SEND). The matter was resolved at mediation stage, and no appeal was pursued. I therefore consider that I can investigate complaints during the mediation period, despite this appeal right.
14. Therefore, I have investigated the complaint from the start of the academic year, September 2023 to December 2024. Any complaints after this date are new matters.

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How I considered this complaint

15. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance. I issued a draft decision statement to Mr X and to the Council and have taken into account their further comments before reaching my final decision.
16. Because the Council accepted fault, I primarily considered what would be a suitable remedy for the injustice caused.

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What I found

Education, Health and 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.
18. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section J: Details of any personal budget made. 

19. 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).

Facts of this case

20. Y has significant care needs. Y is nonverbal and expresses his basic needs through facial expressions and body language. He has autism with motor and sensory difficulties.
21. Mr X says that, without an educational placement, Y has been deprived of essential therapies and support, critical for his development, causing regression in Y’s communication abilities and increased frustration. Mr X says that the Council wanted to cease Y’s EHC Plan, but he managed to ensure this did not happen. He is also concerned about the lack of annual reviews each year.
22. The Council has accepted that it failed to provide education in accordance with Y’s EHC Plan from September 2023 to December 2024. During this period, Y has been at home supported by a care package from Adult Services. Mr X says that he had to return to live with his mother to help care for Y, otherwise there was a possibility his brother would have to be placed in a care home. Mr X and his mother have had the fulltime ongoing responsibility for Y.
23. The Council says that it has carried out service improvements to ensure that annual reviews are a priority and case officers have been allocated time to do this. The number of outstanding annual reviews has declined. The Council is also now treating EHC plans, which it intends to cease, as phase transfers. This means the Council starts working with families much earlier and decisions are made by the end of March in the year the Council plans to cease an EHC plan.
24. There is also closer working with Adult Services when young people are due to transition into adulthood.
25. Mr X was dissatisfied with the Council’s investigation because he did not consider the Council had provided an appropriate redress to his brother for the loss of education, SALT and OT and the avoidable distress caused to him and his family.

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Action

26. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
27. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
28. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
29. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

30. Within one month of the final statement, the Council will:
1. apologise to Mr X for the faults and injustice identified. 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; and
2. Y has missed out on four school terms of educational provision and SALT and OT therapy. I consider these merit a symbolic payment at the highest end of our tariff (£2,400 per term) and it also recognizes the pressures placed on the family. This amounts to £9,600 which Mr X should use to the benefit of Y.
31. I am not making any service recommendations because it is clear that the Council has taken on board the faults in this case and is working to prevent them recurring in future
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice and have recommended a remedy, which the Council has accepted. I am therefore closing the complaint.

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Investigator's decision on behalf of the Ombudsman