Summary: Mrs X complained the Council failed to provide an education and specialist provision in line with her son, F’s Education, Health and Care (EHC) Plan since March 2023 when his named placement could no longer meet his needs. She said it also failed to issue F’s amended EHC Plan following an annual review. The Council was at fault. It agreed to apologise and make payments to recognise the impact on F’s education and the distress and uncertainty caused to Mrs X. It will also carry out service improvements.

The complaint

1. Mrs X complained the Council has failed to provide education and specialist provision in line with her son, F’s Education, Health and Care (EHC) Plan since March 2023 when his school was unable to meet his needs.
2. She also complained the Council failed to issue F’s amended EHC Plan following an annual review in March 2023.
3. Mrs X says F has missed out in education and the matter has caused her stress and uncertainty.

Back to top

The Ombudsman’s role and powers

4. 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)
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(i), as amended)
6. 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

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Council’s response to our enquiry letter.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

EHC Plans

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.
11. The EHC Plan sections 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.

12. 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.
13. 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. 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; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Annual Reviews

14. 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.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

SEND Tribunal

17. 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.
18. There is a right of appeal to the tribunal against the 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.

What happened

19. Mrs X has a son who in early 2023 was in post-16 education with an EHC Plan that the Council issued in February 2023. F has special educational needs (SEN) including autism spectrum disorder (ASD) and language difficulties. He also has some health issues. F attended a special school, School A, for children with autism in its post-16 provision, which was named in his plan.
20. F’s EHC Plan set out the specialist provision he required. This included:
• speech and Language provision;
• teaching from staff skilled in dealing with children with ASD;
• activities to develop social skills;
• a sensory programme and access to a sensory room; and
• a programme to develop self help and independence.
21. In March 2023 School A held an emergency annual review which Mrs X did not attend. Records show there had been incidents of violence involving F at school which led to F being excluded. School A stated it could no longer meet F’s needs due to the health and safety risks involved and recommended the placement ceased with immediate effect. The annual review records showed no amendments were required for section F or any other sections.
22. In April 2023 Mrs X complained to the Council stating she had received no update from the Council about what was happening with F’s education. She said F had now been out of school for six weeks. The Council responded at the end of April 2023. It said F remained on roll at School A although acknowledged it had said it could no longer meet F’s needs. The Council said it had only just received the annual review paperwork from School A and will now present F’s case to its SEND panel for a decision on whether a change of placement is required. It said the school remained responsible for providing F with schoolwork.
23. Mrs X escalated her complaint to stage 2 of the complaints procedure and said the Council received the annual review paperwork in March and therefore she was unhappy about the delay in taking the matter to the panel.
24. The Council responded to Mrs X at stage 2 in mid-May 2023 and acknowledged it had actually received the annual review paperwork in mid-March 2023 but said it did not include clarity from School A around why it could not meet F’s needs. It said it would tell Mrs X the outcome of the panel the end of May.
25. Mrs X remained unhappy and complained to us in June 2023.

The Council’s response to our enquiries

26. The Council confirmed its SEND panel had agreed a change of placement for F in May 2023 and had requested he stayed on roll at School A until it found a new placement.
27. The Council could not provide any evidence or records of how it provided alternative education for F. It accepted that it did not have sufficient oversight of F’s education or do any checks to see whether School A was providing education for him. It said it could have done more to ensure F was receiving a package of education. It said it offered some home tuition for F in October 2023 however this was declined by Mrs X.
28. To date the Council said had not issued an amended EHC Plan following the March 2023 annual review. In February 2024 the Council said another school had offered F a place from September 2024 and the SEND panel was considering this offer.

My findings

29. Following the annual review in March 2023 the Council was aware School A could no longer meet F’s needs. It should have sent its decision to amend F’s EHC Plan within four weeks and then issued the amended plan by the end of June 2023. To date is had not done so which is fault. While I accept the Council has had difficulty finding a new placement for F, this does not absolve it from meeting statutory timescales following annual reviews. There also appears to be excessive delays in taking matters to its SEND panel which is causing the ongoing delay in issuing the final plan. All this has caused Mrs X distress, uncertainty and delayed her right of appeal to the SEND tribunal.
30. The Council was aware from March 2023 that F had no access to education after School A decided it could no longer meet his needs. F had an EHC Plan and therefore it is the Council’s duty to ensure the child receives the provision in the plan. It is not the school’s responsibility as wrongly stated in the complaint response. There is no evidence showing the Council has made any consideration or maintained any oversight of F’s education since March 2023. There is no evidence the Council made any effort to put in place any of the provision in the plan. Records show it offered home tuition to Mrs X in October 2023, however given F’s needs, this would likely on balance have not suited him, given the specialist provision and teaching he required. The Council has accepted it could have done more to ensure F received alternative provision and that it failed to maintain proper oversight. The Council was at fault.
31. F has not had any education in line with his EHC Plan since March 2023 and is still without a final EHC Plan. In line with our guidance and taking into consideration F’s individual circumstances I have made a recommendation for the Council to make a payment to acknowledge F’s loss of education between April 2023 and February 2024. It should also issue F’s amended EHC Plan without further delay. If Mrs X is unhappy with either the named school or content of the final EHC Plan then she can appeal to the SEND tribunal.

Back to top

Agreed action

32. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £300 to recognise the distress and uncertainty caused to her by the faults. 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.
2. Pay Mrs X £4000 to recognise F’s loss of education in line with his EHC Plan between April 2023 and February 2024.
3. Issue F’s final amended EHC Plan and in doing so ensure it provides Mrs X with a right of appeal to the SEND tribunal.
4. Remind officers in its SEND team of the duty to comply with statutory timescales following an annual review.
33. Within two months of the final decision the Council’s SEND team agreed to review how it carries out its due diligence for children and young people with EHC Plans who for whatever reason cannot attend their named placement. This is to ensure it fully considers its duty to provide the education outlined in their EHC Plans to prevent gaps in education. The Council should outline the actions and steps it intends to take to prevent recurrence of the faults found in this case.
34. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

35. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman