Summary: Mrs X complained the Council failed to ensure her son, Y received a suitable education and the specialist provision in his Education, Health and Care (EHC) Plan between 2020 and 2024. The Council was at fault. It failed to ensure Y received the provision in line with his EHC Plan between March 2021 and May 2022. It also failed to fully complete an EHC needs reassessment and then failed to follow a tribunal order to put tuition in place between October 2023 and January 2024. It also significantly delayed responding to Mrs X’s complaint by 20 months. The period prior to March 2021 is late and the period between May 2022 and October 2023 is outside of our jurisdiction because Mrs X had appealed to the SEND tribunal. The Council agreed to make payments to acknowledge the injustice caused to Mrs X and Y.

The complaint

1. Mrs X complained the Council failed to ensure her son, Y, received a suitable education and the specialist provision in his Education, Health and Care (EHC) Plan since he stopped attending school in 2020. She also complained about a lack of social care provision during this period.
2. Despite complaining about these matters in October 2022, the Council did not issue a final complaint response until July 2024.
3. Mrs X says the matter has had a huge impact on Y’s education and social development. She said she has been caused distress, uncertainty and time and trouble.

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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).

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What I have and have not investigated

7. I have not investigated Mrs X’s complaint about social care. This is because the Council is investigating these matters separately under the Statutory Children’s complaints procedure. Mrs X can make a separate complaint to us if she remains unhappy at the conclusion the statutory procedure.
8. 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).
9. I have considered matters from March 2021 onwards. Although much of the matters complained about are late there was good reasons why Mrs X did not come to us sooner about some of them. Mrs X complained in October 2022 and the Council did not provide a final response until July 2024. There is evidence Mrs X and her representative Mrs Z chased the Council and did not let the matter lie. Had the Council dealt with the complaint in a timely manner it is likely Mrs X would have complained to us at least by early 2023.
10. I have not investigated matters prior to March 2021 as I consider this period late. It was reasonable for Mrs X to have complained about issues which occurred in 2020 to both us and the Council much earlier. It was also over periods of COVID-19 lockdowns which disrupted education for all children. These reasons make it difficult to come to a robust and proportionate finding and assess injustice. I have however referred to this period below as background.

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How I considered this complaint

11. I spoke to Mrs X’s representative, Mrs Z about the complaint and considered information Mrs Z provided.
12. I considered the Council’s response to my enquiry letter.
13. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Law and guidance

EHC Plans

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 EHC Plan is set out in sections which include: 

• Section B: Special educational needs (SEN).  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN.
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section I: The name and/or type of educational placement. 

16. 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)
17. 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; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
18. 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.
19. 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.
20. 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.

EHC needs re-assessment

21. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
22. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

SEND tribunal

23. 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.
24. 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).
25. 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.
26. 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 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). 
27. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
28. 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.

What happened

29. Mrs X’s complaint goes back a number of years. As such, the following chronology provides a summary of the key events relevant to this complaint. It does not include every detail of what happened.
30. Mrs X has a son, Y who in 2021 was of secondary school age and due to transition to post-16 education from September 2022. Y has special educational needs and has had an EHC Plan since 2017. Prior to 2021 Y attended an Independent special school (School 1), however his attendance declined during 2020. Records show there was an annual review of Y’s EHC Plan in November 2020 where Mrs X requested a change of placement.
31. Mrs X says Y stopped attending School 1 at the end of 2020 after it said it could no longer meet his needs. The Council says it believed School 1 provided outreach support for Y but became aware in March 2021 that he had stopped attending completely.
32. Y remained out of school for the remainder of the academic year without any education in place. His EHC Plan in place at the time set out the provision he was entitled to in section F. This included:
• A social skills programme
• Speech and Language sessions provided with advice from a Speech and Language therapist (SALT)
• Sensory de-escalation programme
33. Much of the provision in Y’s EHC Plan was delivered with the support of a Teaching Assistant (TA) and relied on him being in a school environment to receive it.
34. In September 2021 the Council arranged alternative provision for Y which consisted of tuition for six hours a week provided by the Kent Education Programme. This remained in place until June 2022. Records show Y’s attendance at these sessions was good, at over 80% however there is evidence of the tuition not always working for Y, tutors leaving and various disruptions.
35. In May 2022 the Council issued Y’s amended EHC Plan. The amended Plan stated ‘Special School’ until July 2022 and from September 2022 a ‘further education college or post-16 provider’ in section I. The provision in section F remained unchanged. Mrs X was provided with a letter explaining how she could appeal the EHC Plan to the SEND tribunal.
36. In July 2022 the Council held another annual review. The outcome of the review was to carry out a re-assessment of Y’s needs but not to make any further amendments to the Plan.
37. In August 2022 Mrs X appealed to the SEND tribunal about Y’s EHC Plan. She appealed sections B, F and I as well as about social care elements of the plan.
38. Mrs X complained to the Council in October 2022. The Complaint was about Y’s lack of education, school placement and about failing to respond to social care and respite requests
39. From September 2022 Y was no longer of statutory school age. The Council put further tuition in place for Y in November 2022. This consisted of 15 hours a week in a group environment.
40. The Council issued a stage 1 complaint response in April 2023. It apologised for the delay in responding to the complaint. It said it was currently proceeding with the re-assessment of Y’s needs but was pleased to see Y accessing tuition in the interim. It apologised for the delay in completing the re-assessment but said it was aware Mrs X had now lodged her appeal with the SEND tribunal so any concerns about the EHC Plan would now be addressed as part of that process.
41. Mrs X escalated her complaint in early May 2023. She said there were elements of her complaint which the tribunal could not address including, delay completing the EHC needs re-assessment, lack of a sufficient social care assessment and failing to provide Y with a suitable education in line with his EHC Plan since 2020 when he stopped attending school.
42. Mrs X chased the Council in July for a stage 2 complaint response. The Council apologised for the delay and said it would issue one as soon as possible.
43. In September 2023 Y’s tuition stopped as the provider no longer had any space for him. The tribunal held a case management hearing at the end of September 2023 and ordered the Council to put tuition in place for Y within 10 days of the hearing, so by the first week of October. The Council failed to do so. It told us Y’s previous provider had no tutors available and it was unable to explain why it did not consult with other providers. It apologised.
44. The SEND tribunal process concluded in November 2023 and a final amended EHC Plan was issued in mid-November. The amended Plan named a special school, School 2 from January 2024.
45. Mrs X chased the Council for a stage 2 complaint response in December 2023 and having had no response she complained to us in January 2024. We asked the Council to provide a stage 2 response.
46. The Council provided its stage 2 response in July 2024. It apologised for the delay in issuing the final response. It said it had now agreed to investigate Mrs X’s complaints about social care separately under the statutory complaints procedure. It said having reviewed its records that it could see Y was without any education between March and September 2021 after which tuition was provided. It acknowledged this was not the same as attending a school environment. The Council said Y was now attending School 2 following the tribunal decision at the end of 2023. The Council offered Mrs X £2000 to recognise Y’s loss of education between March and September 2021 and a total of £500 to acknowledge the distress caused by delays completing the complaints process.
47. Mrs X remained unhappy and brought the complaint back to us.

My findings

Pre-March 2021

48. As set out above Mrs X’s complaints go back a number of years and I have explained in paragraphs 9 and 10 why I have investigated from March 2021 onwards and not before.

March – September 2021

49. From March 2021 until July 2021 the Council was aware Y was not attending school and not receiving any education. It has accepted fault for this period and offered Mrs X £2000 in recognition of Y’s lost education during this period. This is in line with our guidance on remedies and an appropriate remedy. Further investigation would not achieve anything further for Mrs X.

September 2021 – May 2022

50. Y remained out of school at the start of the 2021/2022 academic year receiving six hours of tuition each week. The Council has acknowledged this was not the same as being in a school environment. I have seen no evidence the Council carried out adequate oversight of Y’s education during this period. There is no evidence it reviewed the tuition to decide whether Y could cope with more or whether it met his SEN requirements. There is no evidence the Council tried to put SALT provision place or considered how it could meet his social interaction provision. So, while Y did receive limited tuition it was not sufficient to meet the provision set out in his EHC Plan. All of this is fault and it impacted on Y’s education and social development, significantly given it was his GCSE year.

May 2022 – September 2023

51. The Council issued a new EHC Plan for Y in May 2022 which came with a right of appeal to the SEND tribunal. The tribunal process did not start concluding until September 2023. Mrs X appealed most sections of the EHC Plan including the provision and named placement. We cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. Therefore, Y’s lack of education is linked to Mrs X’s appeal and so, falls outside of our jurisdiction. As above however I note Y received at least 16 hours of education in a group environment each week for most of this period.

EHC needs re-assessment

52. During the period of appeal the Council agreed to carry out an EHC needs re-assessment for Y in July 2022. I consider this was/is separate from Mrs X’s ongoing appeal. As such the Council should have completed the re-assessment and issued Y’s amended EHC Plan within 14 weeks, so by the start of November 2022. It did not issue its decision to amend Y’s EHC Plan until February 2023 and there was no further EHC Plan issued until after the SEND tribunal order at the end of 2023. Therefore, it appears the Council did not complete the needs re-assessment process which is fault. It meant there was a 16 month gap between agreeing the needs re-assessment and issuing a further EHC Plan.

September 2023 – January 2024

53. The SEND tribunal ordered the Council in September 2023 to put tuition in place for Y within 10 days of the order, so by the start of October. The Council has accepted that it failed to do so. The failure to comply with the tribunal’s order was fault. It meant Y lost out on tuition between October and January 2024 when he started at his new placement.
54. Following the conclusion of the SEND tribunal process the Council issued Y’s amended EHC Plan in November 2023 naming School 2. Y attended School 2 from January 2024.

Complaint handling

55. Mrs X initially complained to the Council in October 2022. The Council issued its stage 1 response in April 2023 which Mrs X escalated to stage 2 straight away. The Council did not issue its final response until July 2024. The whole complaint process took over 20 months to conclude. That is a significant delay and is fault which the Council has already apologised for. It has offered Mrs X £500 to acknowledge the injustice this caused which is in line with our guidance on remedies and appropriate.

Injustice

56. This matter has caused both Mrs X and Y an injustice. The matter has impacted on Mrs X causing her distress, uncertainty and time and trouble chasing the Council for a complaint response. The Council has offered an appropriate remedy for the injustice caused by the complaint handling. I have made a further recommendation for the Council to acknowledge the distress and uncertainty caused by the faults around Y’s education.
57. Y lost a significant period of specialist provision between 2021 and mid-2022, some of which the Council has offered a remedy for. He also lost out on tuition ordered by the SEND tribunal towards the end of 2023. The Council delayed completing the EHC needs reassessment which was a lost opportunity to try and resolve the tribunal process earlier. There are periods in this case that I cannot provide a remedy for as it falls outside of our jurisdiction however, I have made recommendations below for the Council to make payments to Y to recognise his lost education.
58. The scope of this complaint and the identified faults go back a number of years. Since then, the Council has agreed and implemented a number of service improvements following findings of similar faults in other investigations. As such, I have not made any further service improvement recommendations.

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Agreed action

59. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X a total of £6700 to recognise the impact the faults had on Y’s education and to acknowledge the loss of specialist provision between March 2021 and May 2022 and between October 2023 and January 2024. This includes the £2000 already offered by the Council for period March-September 2021.
2. Pay Mrs X a total of £700 to recognise the distress, uncertainty and time and trouble caused to her by the Council’s faults. This includes the £500 already offered to Mrs X.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. 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

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Investigator's decision on behalf of the Ombudsman