Summary: The Council is at fault for poor communication and delay in the annual review process, causing distress. It also failed to provide education. The Council has accepted it is at fault and provided a suitable remedy.

The complaint

1. Ms X complained the Council has failed to monitor the school to ensure it was offering the provisions in her child’s Education, Health and Care Plan and has failed to provide a suitable education. Ms X said the communication with the Council has been poor. This has caused distress to C and the whole family. The Council has accepted it is at fault and offered remedies which Ms X said it has not complied with. She would like the Council to comply with its own recommendations, apologise and improve the services in the future.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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

6. As explained in paragraph three above, we cannot investigate late complaints unless we decide there are good reasons. Ms X complained to the Ombudsman in March 2025, we would therefore usually investigate back to March 2024. I have exercised discretion to investigate beyond the 12-month period because I need to consider what happened between September 2022 and September 2024 to understand the Councils response to Ms X’s complaint.
7. Any information provided outside of this timescale is for background information only.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. 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

The Education, Health and Care (EHC) Plan 

10. 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. 

Maintaining the Education, Health and Care (EHC) Plan 

11. 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)  
12. 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. 

Reviewing the Education, Health and Care (EHC) Plan

13. 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) 
14. 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.
15. 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.
16. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

17. I have summarised below the key events; this is not intended to be a detailed account.

Background to the case

18. C experienced severe medical trauma in 2020 and was in hospital for several months. Ms X left her job to care for C full time. C uses a wheelchair and had weekly hospital appointments.
19. Ms X said C tried to go back to school but this was a negative experience for her. She told me C had several appointments and struggled with fatigue as well as her medical needs and health care routine. In the academic year 2021 to 2022, C’s record shows her attendance was just over 60%. Ms X asked for alternative provision for C but the Council did not provide this.
20. Ms X asked the Council for an Education, Health and Care Needs Assessment in November 2021.
21. The Council issued a draft EHC Plan in early June 2022 and the final version in mid-June. The Plan named C’s mainstream school.

September 2022 to July 2024

22. From October 2022, C did not attend school. Ms X said the family discussed this with medical professionals and decided to put C’s medical needs first and focus on her quality of life and mental wellbeing.
23. The Council reviewed the EHC Plan in June 2023. It issued its decision to amend the plan in November 2023 with an amended draft EHC Plan. The Council issued a further amended draft EHC Plan in December and the final EHC Plan in April 2024. It named the same mainstream school.

The complaint

24. In September 2024, Ms X complained to the Council. She said C has not received satisfactory education since the medical trauma and has limited attendance at a mainstream school since 2022.
25. The Council issued a complaint response in the middle of November 2024. It apologised for delay completing the annual review and upheld her complaint.
26. A few days later, Ms X asked for a stage two investigation. The Council issued its response in February 2025.
27. The Council upheld Ms X’s complaint about lack of support and communication and said this had been inconsistent and slow. It apologised and said Ms X did not receive the service she should have from the Council.
28. The Council also upheld Ms X’s complaint about tutoring not being in place. It explained C’s school had organised a package of support and accepted it should have checked this was in place. It apologised and said Ms X and C did not receive the service they should have from the Council.
29. The Council upheld Ms X’s complaint. It said it ‘apologises to you and your family, I understand the delay you experienced is below expectations and has caused disruption and anxiety.’ It offered to make a suitable remedy payment for missed education in line with the Ombudsman’s guidance and asked Ms X to contact it to discuss.
30. In late February 2025, the Council spoke with Ms X on the phone and agreed a remedy payment which it confirmed in writing. It said ‘We have failed to educate [C] from September 2022 for 6 terms until July 2024. This has resulted in the Council agreeing a remedy payment of £14,400.’
31. It also made an offer of £2,400 for the emotional distress caused to C and the family.
32. The Council offered Ms X and family a total remedy payment of £16,800.
33. Ms X complained to us in March 2025.
34. During my enquiries, Ms X told me she accepted the Council’s offer and had received the payment.
35. In response to my enquiries, the Council said it provided training on customer service and communication to relevant staff and increased the size of the team which it has restructured.

Analysis

36. In its complaint response, the Council accepted it caused delay in the annual review process, failed to adequately support and communicate with the family, failed to check the package of support was in place at school and failed to educate C. It accepted there was ‘significant failings to meet [C’s] needs. It apologised and offered to discuss a financial remedy.
37. In offering a financial remedy for missed education, the Council accepted it had failed to educate C from September 2022 to July 2024. This is two full academic years or six terms. It offered a remedy payment of £14,400. This works out at £2,400 per term. The Ombudsman’s Guidance on Remedies suggests a remedy payment of between £900 and £2,400 per term. The offer made by the Council is at the top end of what we would recommend and is in line with our guidance. Ms X told me she accepted the Councils offer and has received payment. The Council has provided a satisfactory remedy.
38. The Council also offered a remedy of £2,400 to recognise the emotional impact on C and their family. Ms X told me the family accepted the offer and received the payment. The Ombudsman’s Guidance on Remedies suggests a remedy payment of up to £500 for distress caused by a fault of the Council. The offer made by Council is more than adequate. The Council has already provided a satisfactory remedy.
39. The Council has made satisfactory service improvements and provided a suitable remedy for the injustice caused by its faults. Further investigation of those points would not lead to a different outcome.

Summary of fault causing injustice

40. The Council accepted fault, apologised for C’s missed education and the distress caused. It provided remedies in line with our Guidance which Ms X has accepted.

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Decision

41. I find fault causing injustice which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman