Summary: Mr and Mrs X complained about the Council’s failure to provide their child, P, with a suitable education, support for their special educational needs and related matters. We found the Council to be at fault. It failed to ensure P had access to appropriate support when she was unable to attend school. There was also delay in the Education, Health and Care Plan process. To remedy the resulting loss of provision and distress, the Council agreed to apologise and increase a symbolic payment already made to Mr and Mrs X during its complaint handling.

The complaint

1. Mr and Mrs X complain about the Council’s failure to provide their daughter, P, with a suitable education and support for her special educational needs. Specifically, they complain about:
1. delay in the Education, Health and Care Plan process; and
2. failure to arrange alternative educational provision when P was unable to attend school.
2. They say P’s lengthy time out of education had a significant, negative impact on her well-being and mental health. It has also affected the family, both emotionally and financially.

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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. 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
9. 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

10. Paragraphs 22 to 24 apply to this complaint. I have not investigated Mr and Mrs X’s complaints about lack of educational provision and support for P’s SEN from when the Council issued the amended, final EHC Plan in July 2024. Although an earlier final EHC Plan was issued in March 2024. I do not consider it was reasonable for Mr and Mrs X to have exercised their right of appeal at this stage because there were active discussions with the Council about the type of placement.

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How I considered this complaint

11. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
12. Mr and Mrs 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

Legal and administrative background

Education Health and Care Plans

13. A child with special educational needs (SEN) may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections which include:

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Reviewing EHC Plans

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 take place.

16. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft plan and issue the final EHC Plan as quickly as possible, and within eight weeks of the date the Council send the proposed amendments to the parents.
17. Where a Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
18. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Early reviews

19. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHC Plan if there is a change of circumstances, such as a change in need or the current EHC Plan is no longer meeting needs.

20. The council does not have to agree to this request and there is no statutory right of appeal of this decision.

Failure to secure provision

21. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

SEND Tribunal and appeal rights

22. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.
23. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the SEND Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)
24. 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.

Alternative provision

25. 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.
26. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

27. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
28. P is of secondary school age with SEN. She has a diagnosis of autism and has an EHC Plan. In September 2023, she transferred from primary school to School D, a mainstream secondary school, named in Section I of P’s EHC Plan.
29. Mr and Mrs X say P’s mental health and ability to cope with the larger school environment declined during the academic year, despite a short period of alternative provision at a hospital school.
30. Towards the end of the summer term, Mrs X asked the Council to arrange an emergency annual review because it was highly unlikely P would be able to return to School D in September. Mrs and Mr X believed P’s needs would be better met in a specialist setting and wanted to get this process started and for the EHC Plan to be updated.
31. She was told she would have to wait until September because the meeting had to be arranged by School D, and school staff were unavailable during the summer break.
32. The emergency review took place in October 2024. At this meeting Mr and Mrs X asked the Council to consult with a specialist provider.
33. In response, the Council explained it would consult with other mainstream providers, before it was able to consider any in the private sector. It also agreed to amend P’s EHC Plan.
34. In the meantime, P remained out of school without any alternative provision available. Mr and Mrs X say this had a negative impact on P and the whole family. P desperately wanted to attend school but, for reasons related to her SEN, was unable to return to School D.
35. Mrs X made a formal complaint about this in February 2024. She asked the Council to reimburse costs of childcare she had to incur because P was not in school. Although the complained was upheld, and a financial payment made (£3750), Mrs and Mrs X felt this was inadequate and did not properly reflect the costs they had incurred.
36. In March 2024, the Council issued a final EHC Plan. This named School D in Section I. Mr and Mrs X strongly objected to this. The Council sought advice on this issue from an educational psychologist, and then agreed that mainstream provision was not appropriate for P. The Council identified a specialist unit attached to a mainstream school (School Q) This led to the Council issuing an amended final EHC Plan in July 2024. This named School Q in Section I. Mrs and Mrs X disagreed with this proposal and lodged an appeal at the SEND Tribunal. For the reasons I have explained above, I am unable to consider what happened afterwards.

The Council’s position

37. In response to Mr and Mrs X’s complaint, and the Ombudsman’s enquiries the Council’s position is summarised below.

• It accepts communication with Mr and Mrs X was sometimes poor. This was caused by staff sickness.
• There was delay in arranging the emergency annual review. This contributed to further delay in issuing a final EHC Plan.
• It accepts P was without education or support for her special educational needs for three terms (academic year 2024 to 2025). In response to my enquiries the Council has now offered to pay Mr and Mrs X 4500 to acknowledge this injustice (£1500 per term). This is an increase of £900 to what was already paid in response to their complaint.
• In recognition of Mr and Mrs X’s time and trouble bringing the complaint, the Council offered a payment of £150.
• Childcare costs were considered, but not reimbursed, because Mr and Mrs X did not provide suitable evidence of external expenditure.

Analysis

Delay in the EHC Plan process

38. The Council has already accepted it acted with fault because it took too long to carry out an emergency review of P’s EHC Plan when she stopped attending School D in July 2023. Such a review should be held when there is a significant change in circumstances, as was the case here.
39. Whist the Council can delegate conduct of the review to a school, it retains responsibility for ensuring reviews take place. The Council has not contested an early review was necessary, but says School D failed to arrange this when it should have done. This was fault.
40. Had this fault not occurred, the amended EHC Plan would have been issued sooner than it was in March 2024. The law says an amended EHC Plans should be issued within 12 weeks from the date of the annual review. In this case it took nearly 20 weeks, in addition to the three months it took to arrange the emergency review.
41. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframe here amounts to fault and caused a period of avoidable uncertainty and distress for Mr and Mrs X. This injustice requires remedy because this was not specially addressed during the complaints handling.

Loss of education and SEN support

42. The case records show P was unable to attend the school named in her EHC Plan or provided with alternative provision from September 2024 to July 2025, when the Council issued a final amended EHC Plan. During this time, she did not have access to education or support for her SEN. The fact she missed out on this support meant an already vulnerable young person was further disadvantaged.
43. The Council has accepted it acted with fault and offered to increase the payment already made during the complaints process.
44. I welcome the Council’s acceptance of fault, and its acknowledgement that this caused a significant injustice to P and her family. I consider the symbolic payment of £4500 (in total) is appropriate and in line with the Ombudsman’s published Guidance on Remedies.
45. The Council has provided a satisfactory explanation why it did not reimburse costs of childcare. It is open to Mr and Mrs X to make a further request directly to the Council if they are able to produce the evidence that was reasonably expected.

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Agreed action

46. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Mr and Mrs X.
2. Pay Mr and Mrs X £300 as a symbolic payment to acknowledge their distress and frustration caused by the delay in the EHC Plan process.
3. Pay Mrs and Mrs X a further £900 (to that already paid) as a symbolic payment to acknowledge the loss of SEN provision and education detailed in this statement.
47. In response to complaint, the Council has provided Mr and Mrs X and the Ombudsman with an explanation for the delay and taken action to address staffing issues in the SEN team. For this reason, I do not consider it necessary to make any service improvement recommendations.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I find fault causing injustice. The Council has agreed to take action to remedy the personal injustice to Mr and Mrs X. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman