Summary: Miss X complained the Council did not provide her child with a suitable education for three years. She says this caused her child to miss out on education and impacted their wellbeing. We find the Council at fault which caused injustice. We are satisfied the remedy offered by the Council remedies the injustice caused.

The complaint

1. Miss X complains about the Council’s handling of her child’s Education Health and Care Plan. Specifically, she complains the Council:

1. did not review her child’s EHC Plan in line with statutory guidance;
2. has not provided a suitable education for her child for three years; and
3. handled her complaint poorly.

2. Miss X says her child has missed out on education which has also impacted their wellbeing.

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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. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. 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.

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What I have and have not investigated

8. Miss X complains about matters which began three years ago. She complained to the Council in September 2024 and brought her complaint to the Ombudsman in March 2025. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. I consider that due to delays in the Council’s complaint handling, there are good reasons to exercise discretion to investigate further than 12 months ago. I consider it is proportionate to exercise discretion and begin my investigation in September 2023, which is also the start of that academic year.
9. The Council offered to remedy Miss X for injustice caused by its faults until February 2025. I consider this is a good reason to exercise discretion and investigate matters until February 2025. In mid-February, the Council provided Miss X with her appeal rights to Tribunal. As I have said above, we cannot investigate matters which can be considered by the Tribunal if it is reasonable for the complainant to use their right of appeal. Miss X used her right of appeal, and therefore I consider it was reasonable for her to do so. For this reason, I have not investigated matters after mid-February 2025.
10. For the reasons above, I have investigated parts a, b and c of the complaint from September 2023 until mid-February 2025.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. Miss X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
13. 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

What should have happened

EHC Plan timescales (part a of the complaint)

14. 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. 
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. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school.

Education provision (part b of the complaint)

17. 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 I: The name and/or type of educational placement 

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.

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). 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)  

Complaint handling (part c of the complaint)

20. The Council’s complaints policy says it aims to respond to a first stage complaint within 15 working days. It says if it cannot meet this timescale, it will contact the complainant and provide a reasonable timescale. It says if it has not provided a response within ten weeks, the complainant can escalate their complaint to stage two.
21. The Council’s complaints policy says it aims to respond to a second stage complaint within 15 working days. It says if it cannot meet this timescale, it will contact the complainant and provide a reasonable timescale.

What happened

22. Prior to September 2023, B had an EHC Plan. The EHC Plan included the following provision:
• One-to-one adult support
• Weekly sports lessons
23. In mid-March 2024, the Council held an annual review meeting. The school told the Council it could no longer meet B’s needs. The Council did not issue any notification paperwork to Miss X following this meeting.
24. The school referred B to an alternative provision service.
25. In June, B began accessing 17 hours of tuition a week.
26. In September, Miss X made a formal complaint.
27. In October, the Council issued a final reviewed EHC Plan. The issued Plan used information from a prior review which had taken place in February 2023. The Council provided Miss X with her appeal rights.
28. In December, the Council held a review meeting for B’s EHC Plan.
29. In January 2025, the Council responded to Miss X’s complaint. It apologised to Miss X and upheld all parts of her complaint. It said it would consider Miss X’s recommendations of how to improve its service. It offered Miss X the following financial remedy:
• £1575 to recognise sports lessons not provided to B from September 2023 to February 2025;
• £2000 to recognise the lack of one-to-one support provided to B from September 2023 to June 2024;
• £500 in recognition of its failures to comply with statutory guidelines and its poor communication;
• £500 to recognise the avoidable distress it caused Miss X; and
• £300 in recognition of the time and trouble Miss X spent pursuing her complaint due to its poor complaint handling.
30. On 15 February, the Council issued B’s finalised EHC Plan and provided Miss X with her right of appeal.

Analysis

EHC Plan timescales (part a of the complaint)

31. The Council accepts it did not review B’s EHC Plan in line with statutory guidelines. It did not provide Miss X with the notification letter following its review in March 2024, and this fault frustrated her right of appeal. It also did not provide Miss X with a proposed amended plan within the four-week statutory time frame, which caused Miss X avoidable and unnecessary distress and uncertainty. The Council offered Miss X a financial remedy of £500 to remedy the injustice caused by not meeting the statutory guidelines. The Council has also offered a financial remedy for the missed provision, which I have detailed in the section below. Therefore, this additional offered amount exceeds the expectations detailed in the Ombudsman’s guidance on remedies.
32. The Council issued a finalised Plan in October 2024 after Miss X had attended a public event and requested the finalised Plan from an officer. The Plan was based on a review meeting before March 2024 and did not include Miss X’s input. This fault caused Miss X further avoidable and unnecessary distress. The Council offered Miss X a further financial remedy of £500 to remedy the avoidable and unnecessary distress. This is the maximum amount normally recommended for avoidable distress in the Ombudsman’s guidance on remedies. Miss X made considerable efforts to prompt the Council to meet its statutory guidelines and complete the finalised EHC Plan, and the Council continued to make repeated errors. For these reasons, I consider this amount is appropriate and proportionate for the level of injustice caused to Miss X.
33. The Council did not issue its decision to amend the EHC Plan within four weeks of the review meeting in December 2024. This is fault. However, I consider the injustice to Miss X was remedied by its payments for distress as detailed above.
34. Statutory guidance says EHC Plan reviews must be completed by 15 February in the calendar year in which the child is due to transfer between school phases. The Council issued its finalised EHC Plan for B on 15 February 2025 and so met this statutory deadline.
35. The Council recently told the Ombudsman it has restructured, increased investment and increased recruitment in its SEND department. It tells the Ombudsman it is reviewing its practice to further improve its compliance with EHC Plan statutory guidance. For this reason, I do not consider further service improvement recommendations to be appropriate in this case.

Education provision (part b of the complaint)

36. The Council accepts it did not provide B with the provision set out in their EHC Plan from September 2023. This included one-to-one support and sports lessons. The Council offered Miss X a payment of £2000 to remedy almost three terms of one-to-one support until June 2024, when B began alternative provision. I have considered B’s age, needs and individual circumstances. Although the school told the Council it could not meet B’s needs, B remained on the school roll and had access to education from March until June 2024, when they began alternative provision. For these reasons, I consider the amount offered by the Council to be appropriate and proportionate to the level of injustice caused to B by the lack of one-to-one adult support.
37. Miss X paid for B to access their sports lessons throughout the period the Council was not providing them. Therefore, I consider the lack of provision caused injustice to Miss X only, for incurring the costs during that time. The Council has offered Miss X a financial remedy of £1575 to repay her for the weekly sports lessons. I consider this to be an appropriate remedy.

Complaint handling (part c of the complaint)

38. The Council accepts it did not provide a response to Miss X’s original complaint which caused her avoidable and unnecessary time and trouble pursuing her complaint. It offered Miss X a payment of £300 to remedy this injustice. I consider this amount is appropriate and proportionate for the injustice caused.

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Decision

39. I find fault causing injustice. I am satisfied both the action the Council has taken, and financial remedy offered, remedies the injustice to Miss X.

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Investigator's decision on behalf of the Ombudsman