Summary: Ms X complained the Council failed to deliver the content of her child’s Education Health and Care Plan; delayed reviewing this plan and failed to provide alternative education provision when her child was too unwell to attend school from September 2023. There was delay in completing two annual reviews and the Council accepts it did not do enough to ensure Ms X’s child was receiving suitable education. A financial remedy to acknowledge the loss of education and distress is agreed.

The complaint

1. Ms X complained the Council failed to deliver the content of her child’s Education Health and Care Plan; delayed reviewing the EHC Plan and failed to provide alternative education provision when her child was too unwell to attend school from September 2023.
2. She says this had significantly impacted on her daughter’s mental health and she is now living away from her family.

Back to top

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

Back to top

How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

EHC Plan 

8. 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. 

Reviewing EHC Plans

9. 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)

Post-16 – review, provision and naming placement deadline  

10. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

Appeal rights

11. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
12. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
14. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Key facts

15. Ms X’s child, Z, has had an EHC Plan since she was five years old. An annual review meeting was held in June 2023. The notes of the meeting indicate Z was experiencing problems and her mental health was declining. Ms X felt the school was not meeting Z’s needs. An update from the school on 15 September indicates it then felt unable to meet Z’s needs and so was supporting a change in placement. At around this time, Z stopped attending school.
16. The Council failed to complete the annual review within the statutory timescale but issued a final EHC Plan on 12 December 2023 naming the same school Z was already attending. It says it did this as it did not want to delay further and frustrate Ms X’s right of appeal. While the Council notified Ms X of her appeal rights, she did not exercise them.
17. The Council consulted over 20 schools between December 2023 and March 2024. In July 2024, one school offered a placement from October 2024 when Z would turn 16. A decision to place Z at this college required panel approval. It considered the case in October 2024 and deferred a decision to allow the post-16 transfer process to be completed.
18. As explained at paragraph 11 above, the Council is required to complete a review of and EHC Plan by 31 March in the year the child will transfer from secondary to post-16 education. The Council began this process for Z with a review meeting on 24 October 2024. The Council says it was required to consult with local mainstream further education colleges even though an offer of a place had been made by an independent non-maintained college. It sent consultations to two colleges on 11 September 2024. Both responded saying they could not meet Z’s needs.
19. The post-16 transfer review process continued and on 13 December, the non-maintained independent college stated that after completing an assessment of Z’s needs, it was unable to offer a place. The post-16 transfer process was not completed because Z’s health deteriorated resulting in her moving out of the county to receive medical treatment. Z is therefore no longer the responsibility of East Sussex County Council.

Analysis

20. The Council delayed issuing the EHC Plan in 2023 and 2024. In 2023, the annual review meeting was held on 26 June and the Council issued the final amended EHC Plan on 13 December 2023. The process should take a maximum of 12 weeks from the date of the annual review meeting. But in 2023 it took the Council 24 weeks. This is fault.
21. An annual review should take place within 12 months of the last review. This means a review meeting should have been held in June 2024. The information provided shows the Council wrote to the school reminding it of the need to carry out the annual review.
22. The next review of Z’s EHC Plan was the post-16 transfer review with the meeting held on 23 October 2024. Following this meeting, the Council issued the final amended EHC Plan on 21 January 2025. There was delay completing the annual review of Z’s EHC Plan in 2024 which is fault.
23. Appeal rights engage when a final EHC Plan is issued. Ms X therefore was able to appeal in December 2023 and January 2025 when the final EHC Plans were issued if she disagreed with the content including the institution named. There is no evidence to suggest Ms X appealed in 2023 or 2025 or that it was not reasonable to expect her to use her right of appeal if she disagreed with the content of the EHC Plans.
24. Z stopped attending school in September 2023. The Council says that it was not aware until September 2024 that Z was not receiving an education and that it wrongly assumed the school was providing an education for Z while it was seeking a new placement for her. Once it was aware it referred the case to its alternative provision service. The Council remains responsible for providing education even if it defers this duty to a school. The Headteacher of the school emailed the Council in September 2023 saying it was not safe for Z to be on the school site and that the school could not meet her needs. This put the Council on notice that there were issues but it did not take any action to ensure that a suitable full time education was being provided to Z. This is fault.
25. I am suggesting a remedy for the loss of education provision for Z. However, this is limited to two terms of lost education because we do not recommend a payment for lost educational provision once appeal rights have engaged. My recommendation is for the period from September to December 2023, when Z stopped attending school until the final EHC Plan was issued and appeal rights engaged. As well as the period from September 2024 to January 2025, this is when the annual review should have been completed and a final EHC Plan issued which is when appeal rights would have engaged. This amounts to two terms of missed education. I have recommended a payment at the top end of the amounts set out in the Ombudsman’s guidance on remedies.

Back to top

Action

26. To remedy the injustice caused to Ms X and Z as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X for the fault 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;
• Make Ms X a payment of £300 to recognise the distress caused as a result of the delays in reviewing the EHC Plan which frustrated her appeal rights and the delay in finding a suitable alternative school placement; and
• Make Ms X a payment of £4,800 to recognise the two terms of missed educational provision as explained above.
27. The Council should provide us with evidence it has complied with the above actions.
28. I am not recommending any service improvements as I am aware the Ombudsman has determined complaints this year which dealt with similar faults and that appropriate action has been taken as a result.

Back to top

Final decision

29. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman