Summary: The Council significantly delayed in its complaint handling but has now taken action to improve its services. The Council was not at fault for failing to secure the provision in Mr Z’s EHC Plan but it failed to review Mr Z’s EHC Plan when it should have. This caused uncertainty to Mr Z and Ms X. In recognition of the injustice caused by the faults in this case, the Council should apologise, pay £500 and take action to improve its services.

The complaint

1. Ms X complains the Council failed to:
1. provide suitable education for her son, Mr Z, for the past five years; and
2. arrange the education and special educational needs provision as agreed in Mr Z’s February 2022 EHC Plan.
2. Ms X says the Council’s actions caused Mr Z distress and increased his fears around returning to education. Ms X said she has also been caused distress.

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
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. 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)
8. 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

What I have and have not investigated

9. For the reasons set out in paragraph five, I propose not to investigate complaint 1a, that the Council failed to provide Mr Z with a suitable education for the past five years. This is because most of these events happened more than twelve months before Ms X complained to us and there is no good reason Ms X did not raise these issues sooner.
10. Instead I am investigating complaint 1b and looking at events beginning from the date of the February 2022 EHC Plan. My investigation ends at the end of the academic year in July 2023.
11. Ms X raised another complaint with the Council in September 2023 and the Council has responded to this through correspondence between Ms X’s and the Council’s legal representatives. These events took place after Ms X raised this complaint to the Ombudsman in June 2023. It is open to Ms X to ask the Council and then the Ombudsman to investigate these later events in a separate investigation.

Back to top

How I considered this complaint

12. I considered the information provided by Ms X and the Council.
13. I considered the relevant law and guidance as set out below.
14. I considered our Guidance on Remedies.
15. I considered all comments made by Ms X and the Council on draft decisions before making a final decision.

Back to top

What I found

Law and guidance

Education, Health and Care (EHC) Plans

16. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
17. The EHC plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of school. 
18. We cannot direct changes to the sections about education, or name a different educational setting. Only the SEND Tribunal can do that.
19. 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)  
20. 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. However 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. 
21. The Ombudsman can look at complaints about whether support set out in the EHC plan has not been provided, or where there have been delays in the process.

Annual reviews

22. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC plans must be reviewed as a minimum every 12 months (para 9.166);
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195).
23. Within twelve weeks of the annual review meeting, the final, amended EHC plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

What happened

2022

24. Mr Z is a young adult with an EHC Plan. Ms X is his mother and she brought this complaint to the Ombudsman.
25. Following a consent order from the SEND Tribunal, the Council issued a final EHC Plan for Mr Z on 8 February 2022.
26. The EHC Plan said in Section I, that Mr Z would attend a college, College A, from September 2022.
27. The Plan set out in Section F what provision Mr Z would access in the meantime before he started at college. The Section F provision included but was not limited to:
• a bespoke package of initially online tuition working towards English and maths, in small groups, with support from a teaching assistant at all times;
• tuition for one afternoon per week initially and gradually building to three afternoons a week, when Mr Z was able; and
• work-based experience and careers advice.
28. Tuition began gradually with relationship building. Several tuition sessions in the first few weeks were cancelled for reasons such as, Mr Z having a clashing appointment, Mr Z having issues sleeping, or due to technical issues.
29. From late February Mr Z began with another tutor from the same service and they started again gradually and by discussing Mr Z’s interests. Sessions continued in this way until mid-May 2022 when Mr Z began maths tuition. This tuition then continued for the remaining period of this investigation.
30. In June 2022 Mr Z visited College A ahead of his planned start in September. However he told his careers advisor and the Council, that he no longer wanted to start at the college. He said he wanted to keep his package of tuition support and continue with the work experience placement and careers advice, as he had enjoyed this and it may lead to employment. The Council agreed to this and kept the tuition and careers provision in place.
31. The Council did not review Mr Z’s EHC Plan in light of this change to his education, which still said he would start at College A in September.
32. Ms X complained to the Council on 28 September 2022. She said the online tuition Mr Z received one afternoon per week did not deliver all the provision in Section F of his EHC Plan and he was not receiving both English and maths education. She said Mr Z wanted to go to college, but this had not been put in place by the Council.

2023

33. The weekly tuition logs the tutor sent to the Council show the tutor was aware of the plan to teach both English and maths but was deciding to only teach maths in the first few months while building Mr Z’s confidence with education.
34. The Council asked when the tutor would begin introducing English. Emails from January 2023 show the tuition service told the Council the plan was to work solely on maths to prepare Mr Z for his exam in March 2023 and they would look at introducing English after that.
35. Ms X continued to contact the Council to ask why English tuition was still not in place, alongside maths and chased for a response to her complaint from last year. In April 2023 an officer responded to say they did not know why English was still not in place, as the Council had requested this.
36. In May 2023 emails show the tutor explaining to the Council that it had intended to begin English not long after the maths exam. However the tutor said due to a recent decline in Mr Z’s confidence, they were working again on maths for a while as it was a subject he felt comfortable with. They said they were looking to introduce English soon and once he was in a better position to take on additional learning. The tuition service started teaching English to Mr Z for the first time in late June 2023.
37. Ms X chased the Council several times but did not receive a response to her September 2022 complaint until 27 June 2023. The Council did not uphold Ms X’s complaint that Mr Z should be at college, as it said it had arranged provision for Mr Z from September 2022 onwards according to his expressed wishes. It said he told the Council he no longer wanted to attend the college. It also did not uphold her complaint that it was failing to secure the English and maths tuition in line with his EHC Plan.
38. Ms X asked the Council to investigate her complaint at stage two and the Council declined to do this, as it said its stage one response was sufficiently detailed. It signposted her to the Ombudsman.
39. The Council did not review or amend Mr Z’s EHC Plan in 2022 or 2023 in response to the fact Mr Z would no longer be attending the college in his Plan.

Recent service improvements – complaint handling

40. In response to service improvements agreed following one of our investigations, in January 2024 the Council sent us details of the steps it had taken to reduce the delays in its complaint handling. This included changes to the types of staff handling its complaints and the recruitment of a specialist officer.
41. The complaint handling fault in this case occurred before the Council took these steps, so I have not repeated the same service improvement here. However we will continue to monitor any trends in our casework regarding complaint handling at this Council, since the changes were made.

My findings

Failure to review the EHC Plan

42. In June 2022, Mr Z told the Council he no longer wanted to attend College A in September, as set out in his EHC Plan, and wanted to continue with the tuition and work experience instead. The Council agreed to this.
43. The Council should then have carried out a review of Mr Z’s EHC Plan, as his Plan by that time, no longer contained accurate information about the education he would be receiving from September 2022 onwards. The Council failed to review Mr Z’s EHC Plan in response to this change in either 2022 or 2023. This was fault.
44. This fault caused Mr Z uncertainty, as it meant he did not have an up-to-date record of the education and SEN provision he should have been receiving between September 2022 and July 2023. This was an injustice to him. This fault also caused frustration and uncertainty to Ms X about whether Mr Z would have accessed different education during this time if the Plan had been reviewed.

EHC Plan provision – attendance at College A

45. Ms X complained the Council failed to secure Mr Z’s college start in September 2022. The Council arranged for Mr Z to visit the college and have a start date for September but in June, Mr Z decided he no longer wanted to attend college that year.
46. The Council agreed with Mr Z’s decision that he would prefer to keep tuition and work experience in place instead. The Council acted in accordance with Mr Z’s wishes and the Council was not at fault. However as set out above, it ought to have reviewed the Plan in response to this key change.

EHC Plan provision – work experience

47. Mr Z received the work experience and careers advice listed in Section F of his February 2022 EHC Plan throughout the period I have investigated. The records show he was working with a careers advisor, he was engaging in work experience and he expressed he was enjoying this.
48. While Ms X arranged some of the work experience herself, there is no evidence to suggest Mr Z did not receive this provision from his EHC Plan. The Council was not at fault.

EHC Plan provision – English and maths

49. Mr Z’s EHC Plan said he should receive tutoring that worked towards English and maths and noted this should be gradual due to the amount of education he had missed.
50. The tuition service considered Mr Z should start with confidence and relationship building, then start maths lessons only from May 2022, up until his maths exam in March 2023. The tuition service then began work on English from late June 2023. The Council was made aware of this approach and agreed with it.
51. Providing the Section F provision in this way was in line with the gradual approach of “working towards” both subjects, as set out in the February 2022 EHC Plan. The Council was not at fault.
52. Ms X disagrees that this approach was suitable for Mr Z’s needs and said he should have been taught both subjects sooner. However it is not for the Ombudsman to make findings on, or seek changes to, the content of EHC Plans. That is for the SEND Tribunal. The Council’s failure to review Mr Z’s EHC Plan was a missed opportunity for this issue to be resolved sooner.

Complaint handling

53. The Council was significantly delayed in responding to Ms X’s complaint and this was fault. This fault caused Ms X avoidable frustration.
54. The Council then refused to investigate Ms X’s complaint at stage two. It is not necessarily fault for councils to decide not to investigate at a second stage if its initial response was sufficiently detailed and provided it signposts the complainant to the Ombudsman, which the Council did. The Council was not at fault for not investigating at the second stage in this case.

Back to top

Agreed action

55. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Mr Z and pay him £200 to recognize the uncertainty he was caused when the Council failed to review his EHC Plan in 2022 or 2023; and
2. apologise to Ms X and pay her £300 to recognize the frustration she was caused by the Council’s significant delay in responding to her stage one complaint and the uncertainty she was caused due to the Council’s failure to review Mr Z’s EHC Plan.
56. Within three months of the date of the final decision the Council has agreed to:
1. if it has not done so already, demonstrate that it has reviewed Mr Z’s February 2022 EHC Plan to reflect any change in education provider and informed Mr Z of his appeal rights if he disagrees; and
2. demonstrate that it has reminded SEND staff that where a child or young person’s circumstances around their education changes, the Council must review their EHC Plan to ensure they have an up-to-date record of their education and SEN provision.
57. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
58. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

59. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry service improvements.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman