Summary: Mr X complained the Council failed to reassess his child’s special educational needs, leading to a delay in issuing an amended final Education, Health and Care Plan. Mr X also said the Council failed to secure the existing education and therapy provision, failed to effectively communicate and keep proper records, and failed to properly manage his complaints. We have found the Council acted with fault, causing an injustice. We have considered the remedy the Council previously offered and made further recommendations. There are parts of Mr X’s complaint we cannot investigate. We explain why in our decision statement.

The complaint

1. Mr X complained the Council:
1. Failed to complete a reassessment of his child’s special educational needs within statutory timescales, leading to a delay issuing an amended final Education, Health and Care (EHC) Plan.
2. Failed to secure the special educational and therapy provision in the existing EHC Plan for an extended period.
3. Failed to communicate effectively and keep suitable records.
4. Failed to properly administer his complaints.
2. Mr X said the Council’s faults led to a loss of education and therapy provision for his child, affecting his attainment and wellbeing. He said these faults also caused avoidable frustration, distress and uncertainty.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)

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What I have and have not investigated

Time

7. 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)
8. Parts of Mr X’s complaint concern matters that occurred more than 12 months before he brought his complaint to the Ombudsman. I address these matters in the analysis.

Alternative remedy

9. 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).
10. Parts of Mr X’s complaint relate to matters that are part of, connected to, or which could have been part of, an appeal to the Tribunal. I address these matters in the analysis.

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How I considered this complaint

11. I discussed the complaint with Mr X and considered information he provided.
12. I considered information the Council provided about the complaint.
13. Both Mr X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
14. 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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Relevant legislation, guidance and policy

Complaints procedures

15. During the events complained of, the Council had two different complaints procedures:
• Before August 2023, the Council operated a three-stage complaints procedure.
• From August 2023 onwards, the Council adopted a two-stage complaints procedure.

Education, Health and Care Plans

16. 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.
17. 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)

Reviews and reassessments

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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
19. 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) 
20. Where the decision is to amend the existing EHC Plan, the Courts have found councils must notify the parent of the decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. The council must then issue any final amended plan within eight weeks of this Amendment Notice. (R, (L, M and P) v Devon County Council). The amended final plan should therefore be issued within 12 weeks of a review meeting.
21. Where councils decide to carry out a full reassessment of an EHC Plan, it must issue the final EHC Plan within 14 weeks of the decision to re-assess.

Key transfers

22. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

Appeal rights and the Ombudsman’s jurisdiction

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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
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. 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.
27. 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).

Good administrative practice

28. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Ombudsman’s Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
29. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

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What I found

Key events

30. 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.
31. This summary also references events that are outside the Ombudsman’s jurisdiction to consider, for the reasons set out in paragraphs 7-10 and expanded on further in the analysis. However, I refer to these events to help provide context and clarity.
32. Mr X’s child, referred to in this statement as J, is a young person with special educational needs. J had been educated outside of a school setting, mainly receiving some tuition while at home.
33. The Council said the most recent EHC Plan it issued to J was in October 2019. J’s EHC Plan set out his special educational needs and the arrangements that should be made to meet them. The Council confirmed that after it issued the plan, it did not complete any reviews in 2020 or in 2021, the year J would start Year 7. The Council said it started reviewing the plan in 2021, but did not complete this.
34. On 16 September 2022, the Council reviewed J’s EHC Plan. In October 2022, it agreed to complete a full reassessment of J’s needs. The same month, Mr X complained to the Council. Summarised, Mr X complained:
1. The Council had not reviewed J’s EHC Plan in 2020 or 2021, in line with statutory requirements. Because of this, the plan was out of date. Mr X said the plan was not coherent and the provision did not reflect J’s needs. He said this had resulted in a loss of therapy and education provision over many years. Mr X also said the plan did not name a setting. He asked how the Council had overseen J’s home education arrangements.
2. The professional reports used when creating the EHC Plan were out of date.
3. The Council had failed to complete a transition review from primary to secondary education.
4. The Council had failed to provide the budget that should have been in place since 2019, or address requests about this.
5. The Council’s cumulative failings had had a significant impact on J and the family.
35. The Council responded at stage one of its complaints procedure. Summarised:
1. The Council said it had no record of reviewing J’s EHC Plan since issuing it. The Council apologised and said it could not explain this, citing staff turnover. It said it had committed to improvements following interventions from Ofsted and the Care Quality Commission (CQC), which would prevent reviews being missed.
2. Regarding the content of J’s EHC Plan, the Council said it would usually identify inconsistencies through reviews, but these had not happened. The Council accepted J’s EHC Plan was contradictory in places. It accepted it had not appointed a speech and language therapist (SALT) to work with J’s tutor, as specified. The Council said the EHC Plan did not specify any other therapy provision. The Council said therapies not specified in the plan would need to be provided by other agencies, such as the NHS.
3. The Council said it would seek a new SALT assessment as part of the full reassessment, which would also address Mr X’s concerns about outdated professional advice. The Council suggested the full reassessment would also address ambiguity around the wording of Section I. This referred to home tutoring, but the Council said this should be changed to reflect education other than at school (EOTAS).
4. The Council accepted it had not completed a transition review to prepare for J’s secondary education.
5. The Council accepted uncertainty around how J’s personal budget had been calculated. It also recognised its responses about this had been inconsistent.
6. The Council had upheld Mr X’s past complaints about its failings in this area, paying compensation and providing assurances about improvements. It accepted Mr X’s loss of faith in its service. It said it intended to issue J’s amended final EHC Plan by 24 January 2023. It said it would consider compensation and update Mr X about this.
36. Mr X escalated his complaint to stage two of the Council’s complaints procedure. Mr X challenged the Council’s explanations and characterisation of some events, and whether it had fully accepted the impact on J. He also highlighted inaction from the Council in 2017 and 2018, which he believed to be relevant to the current circumstances.
37. The Council responded to Mr X’s stage two complaint in November 2022. Its response addressed Mr X’s specific questions, while largely reiterating the same position set out in its previous response. The Council stressed that a full reassessment would provide a chance to address Mr X’s concerns.
38. The Council and Mr X met to discuss his concerns. I understand this meeting took place in late 2022. Mr X told the Ombudsman this was framed as a mediation meeting. The Council agreed with this description. The intent was to identify Mr X’s remaining concerns and agree how to resolve them. Mr X said the Council gave assurances about the actions it would take to secure provision for J. Mr X said he did not escalate his complaint because of the Council’s assurances. The Council later said because of the timing of the meeting, Mr X did not proceed to the third and final stage of its complaints procedure.
39. Mr X said the Council’s approach did not change after the meeting. I understand the Council issued a draft EHC Plan for J in April 2023. In May 2023, I understand it issued a final EHC Plan, unchanged from the draft and without providing a right of appeal. Mr X approached the Ombudsman. We could not investigate Mr X’s complaint then, as it was unclear Mr X had completed the Council’s complaints procedure.
40. In July 2023, Mr X complained again to the Council. He said he wished to re-submit his previous complaints, as he believed the Council had intentionally not dealt with these, causing delay. Mr X said he had not escalated to the final stage of the Council’s complaints procedure because of the Council’s assurances, which it had not delivered. Mr X also complained that:
1. The Council had failed to issue the draft or amended final EHC Plans within statutory timescales.
2. The Council had communicated poorly.
3. The Council had failed to conclude the mediation meeting and had not signposted to the Ombudsman.
41. In August 2023, the Council adopted a new two-stage complaints procedure, replacing its previous three-stage procedure.
42. On 21 August 2023, the Council issued J’s draft EHC Plan.
43. On 22 August 2023, the Council responded to Mr X’s complaint. It responded at stage one of its new procedure, rather than stage three of its previous procedure. Summarised:
1. The Council agreed it had failed to complete the reassessment of need within statutory timescales. It said it had communicated with Mr X throughout these delays and had now issued a draft EHC Plan.
2. The Council said its previous arrangement with its therapy provider did not extend to children being educated outside of a formal setting. This had led to J not receiving this therapy provision for an extended period. The Council said it would address this going forward with the new plan.
3. The Council accepted Mr X had been unable to escalate his complaint, due to him not knowing its internal procedures. The Council said it used mediation to resolve concerns and keep the young person as the focus. It said this did not prevent complainants from escalating to the next stage. It said information about its complaints procedure was available on its website and it explained how to escalate to stage two of its new procedure.
4. The Council accepted its communication was an issue. It explained how it was trying to improve this.
44. Following further contact from Mr X, the Ombudsman asked the Council about the complaint. The Council told the Ombudsman Mr X had not yet completed its complaints procedure.
45. On 1 September 2023, the Council issued J’s amended final EHC Plan. However, the Council did not provide Mr X with the covering letter, which included a right to appeal the content of the plan to the SEND Tribunal.
46. The Council told the Ombudsman that in September 2023, Mr X sought compensation to reflect the injustice to J. The Council said Mr X asked it to consider a compensation offer of £10,500, though Mr X disputes this. The Council met with Mr X to discuss his complaints and sought advice on the compensation it should award.
47. Mr X said J’s tutoring arrangements came to an end in October 2023. He said throughout October and November, J’s tutors told the Council the arrangements would end, but the Council did not respond, or make alternative arrangements.
48. In December 2023, the Council wrote to Mr X. It apologised for the length of time taken to address the complaint and consider compensation. It offered an apology to J and proposed to pay £10,750 in compensation.
49. In January 2024, Mr X and the Council exchanged correspondence about the compensation offer, J’s tutoring arrangements, the final amended EHC Plan, and a possible meeting. Summarised:
1. The Council said it understood Mr X had formally ended the tutoring arrangements in December 2023, as J was distressed with the changes. The Council said it could restart tutoring and consider other providers. Mr X said he had to end the service because the Council had not responded. The family had been left unsure what arrangements would be in place and it would be difficult for J to respond to short-notice changes.
2. The Council said it could meet with Mr X and discuss concerns with the EHC Plan. It suggested having a mediation advisor present. Mr X agreed to this.
3. Mr X said the Council had yet to put in place any of the provision set out in the EHC Plan.
4. Mr X told the Council he would reject the compensation. He questioned how this had been calculated. He reiterated the Council’s failings and said he was seeking legal advice. The Council said it would also seek legal advice.
50. On 30 January 2024, the Council wrote to Mr X to provide him with a right of appeal to the SEND Tribunal. It recognised it had not provided this when it issued the amended final EHC Plan in September 2023.
51. In February 2024, Mr X wrote to the Council for an update on the mediation meeting. He said the Council had not addressed any of the concerns raised about tutoring and the lack of provision.
52. In April 2024, the Council responded to Mr X. It apologised for the delay, citing staff turnover. Mr X and the Council discussed the matter in a phone call, which the Council then documented in an email to Mr X. Mr X disputed some of the Council’s account of this call. He said he had declined the compensation because he was unsure how it was calculated and for what period it applied. He said any suggestion he was prioritising compensation over J’s provision was incorrect. He reiterated the Council’s sustained failure to resolve the matter.
53. The Council said Mr X appealed against Section F of the EHC Plan on 19 April 2024. The Council said it expected the appeal hearing to take place in early 2025. The Council told the Ombudsman it was engaging with Mr X in the build-up to the appeal and the process was helping to address long-standing matters.

Analysis

Complaints procedures – fault and injustice

54. Mr X first complained to the Council in October 2022. The Council’s complaints procedure then comprised of three stages. Mr X completed the first two stages of this procedure. He did not complete the third stage due to the assurances the Council gave in the mediation meeting held in late 2022. Mr X approached the Ombudsman when the Council failed to complete its agreed actions. The Council told the Ombudsman Mr X had not completed its complaints procedure and it took the complaint back to respond fully. The restriction detailed in paragraph 4 applied.
55. The Council adopted its current complaints procedure in August 2023. It then responded to Mr X’s complaint at stage one of its new procedure, rather than completing its former procedure. Months later, it wrote to Mr X to set out an offer of compensation, but it did not complete its new complaints procedure formally, or signpost Mr X back to the Ombudsman.
56. The Council twice failed to complete its complaints procedure in line with the policy in place. I have found the Council at fault for each failure.
57. These faults caused Mr X an injustice. Mr X should have been able to complete the complaints procedure and ask the Ombudsman to investigate on his first approach in May 2023. The Council adding informal stages in late 2022 and restarting its procedure in mid-2023 frustrated Mr X’s right to seek redress this way. This prolonged the period of complaint without resolution, causing avoidable frustration and time and trouble.

Special educational needs - jurisdiction

58. Paragraph 7 sets out the Ombudsman’s jurisdiction to investigate late complaints. Many of the matters Mr X raised in his October 2022 complaint, such as the Council failing to review J’s EHC Plan in 2020 and 2021 or secure provision before 2022, had occurred more than 12 months before Mr X complained. I have not identified a good reason Mr X could not have complained about these matters sooner. These matters would be out of time for the Ombudsman to consider, even if the Ombudsman could have started investigating Mr X’s complaint in May 2023.
59. Paragraphs 23-27 set out the Ombudsman’s powers and jurisdiction to investigate when an appeal right exists. The fact of an appeal right being available removes the Ombudsman’s jurisdiction to consider any matters that are part of, connected to, or which could have been part of, an appeal to the Tribunal. I cannot therefore consider a complaint about special education provision J received after 30 January 2024, as Mr X received a right of appeal on this date that he then went on to exercise. The question of whether J received suitable education provision from this point is directly related to the Council’s decisions about the content of J’s EHC Plan. These are the matters the SEND Tribunal has been asked to consider as part of Mr X’s appeal.
60. Therefore, the period that falls within the Ombudsman’s jurisdiction to consider is from May 2022, 12 months before Mr X first approached the Ombudsman, to January 2024. This period spans five academic terms and one month. This includes the summer term of 2022, part of a key transition year in J’s academic career.

Special educational needs – summary of fault and injustice

61. The Council considered and addressed Mr X’s concerns in its complaint responses. I have reviewed the Council’s responses to Mr X and the information it provided to me. I have summarised the Council’s failings as follows:
1. The Council agreed to review and amend J’s EHC Plan in September 2022, subsequently agreeing to a full reassessment of J’s special educational needs in October 2022. However, in contravention of the timescales set out in paragraph 21, it did not issue J’s final amended EHC Plan until 1 September 2023, a delay of around 31 weeks.
2. The Council issued J’s final amended EHC Plan on 1 September 2023. However, it did not provide Mr X with his right of appeal to the SEND Tribunal at the same time. It did not provide this right of appeal until 30 January 2024, a delay of around 21 weeks.
3. The Council accepted its communication with Mr X had been poor throughout. The Council also identified significant gaps in its record-keeping. This meant it could not explain past actions and decisions to Mr X in a satisfactory way.
62. It is likely, on the balance of probabilities, that J did not receive the full special educational and therapy provision detailed in his plans between May 2022 and January 2024. The Council accepted the EHC Plan in place required input from a Speech and Language Therapist, but one had not been appointed. The Council knew J was not receiving this provision from the point it reviewed the EHC Plan in 2022 and did not act to address this. This is fault. This led to lost and disrupted educational provision for a long period, which falls within the scope of this investigation to consider. This includes through part of a key transition in J’s academic career. This loss of education is an injustice to J. The Council’s poor communication and record-keeping have compounded the injustice to J. The Council could not clearly explain its lack of action to Mr X. This lack of explanation caused further avoidable uncertainty, frustration and distress.
63. The Council’s delay in completing J’s EHC needs reassessment, issuing the final amended EHC Plan, and in providing a new right of appeal, left concerns Mr X first raised in late 2022 unaddressed for a long time. Mr X could also not appeal to the SEND Tribunal at the correct time. This caused further avoidable distress and uncertainty for Mr X and J.

Special educational needs - remedy

64. The Council said Mr X sought compensation of £10,500 in September 2023. I have not seen evidence of this request and Mr X disputes this happened. The Council said it sought independent advice on what would constitute a suitable financial remedy. The Council offered Mr X £10,750 in recognition of the injustice caused to J and his family.
65. I have seen a copy of the advice the Council received. The figure the Council offered is slightly above that recommended in the advice it received. The advice took account of the Ombudsman’s Guidance on Remedies and our approach to considering injustice by looking at a sample of other investigations. However, the advice did not apply our framework in the way the Ombudsman would. The advice also makes clear the figure accounts for matters older than 12 months, in some cases from 2019, which the Ombudsman would not consider.
66. The Council told me it was committed to working with Mr X throughout the appeal process to address issues with current and future provision. It said it accepted it had acted with fault in this case, causing injustice. I recognise the Council’s admission, and also note the Council took steps to identify and provide an appropriate financial remedy, having regard for our guidance. I have considered these matters when making my recommendations.

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Agreed action

67. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mr X and J for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay Mr X a total of £11,750. This is broken down as follows:
1. The Council should pay the £10,750 it already offered to Mr X. While there are differences in how this has been calculated, the Ombudsman would have recommended a similar figure in respect of lost special education provision between May 2022 and January 2024, based on a figure of £2000 per school term, for five terms and one month. The Ombudsman would not have investigated matters occurring prior to 2022, even if Mr X had been able to ask us to investigate on his first approach.
2. £500 to recognise the avoidable frustration, distress and uncertainty caused by the Council’s faults in communication, record keeping, and delay within the period subject to investigation.
3. A further £500 in recognition of the avoidable time and trouble Mr X experienced due to the faults in the Council’s complaints handling.
3. The Council should share a copy of the Ombudsman’s “Principles of Good Administrative Practice” with relevant officers. It should also review its procedures for recording its decision-making for young people with SEN and ensure these procedures comply with the principles in the Ombudsman’s Guidance.
4. The Council should share a copy of this decision and the Ombudsman’s “Guidance on effective complaint handling for local authorities” with relevant officers. The Council should emphasise the importance of fully completing its local complaints procedures within time and signposting to the Ombudsman.
68. Following other recent investigations, the Ombudsman has recommended the Council act to improve its services. These include reviewing its procedures and training for staff. I will not make duplicate recommendations here.

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Final decision

69. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman