Summary: Mr X said the Council failed to secure the special educational provision in W’s Education, Health and Care Plan. The Council was not at fault in how it arranged W’s education but was at fault for delaying in carrying out an annual review of W’s Plan. This caused Mr X avoidable frustration and uncertainty for which the Council will apologise and pay him £300.

The complaint

1. Mr X said the Council has not secured the special educational provision in W’s Education, Health and Care Plan. Mr X said this caused W significant distress and meant W became very isolated. Mr X said the Council’s actions have impacted on his mental health.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

7. 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. 
8. The EHC Plan is set out in sections which include:

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

9. 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)  

Annual reviews

10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. This is called an annual review. Annual reviews have two parts; the first is a review meeting. Following the meeting, councils must finish the review by issuing a decision to keep the EHC Plan unchanged, amend the content of the Plan or stop the Plan.
11. Once a council issues a decision to amend an EHC Plan, if it wants to name a different school in the child’s Plan, it should prepare a draft amended version and use it to consult with schools about whether they can offer the child a school place.
12. Where a council has decided to amend a child’s EHC Plan, caselaw has found it must issue the amended final Plan within 12 weeks of the annual review meeting.

What happened

13. W is a young person with needs caused by their neurodivergence and significant mental health needs. W started struggling to attend school several years ago.
14. In March 2022, the Council issued its decision to amend W’s EHC Plan following an annual review meeting. The Council issued the amended final EHC Plan in November 2022.
15. At that time, W was receiving ten hours of Council funded tuition per week, focusing on maths, science and English and attended farm therapy once per week for two hours. The tuition was paused at the end of the year.
16. In January 2023, W’s school attempted to reintegrate W by arranging for them to attend part time twice a week, on the days their favourite classes were on. W never came to school and W’s parents said they were worried about W being bullied. The school told the Council W’s parents were worried about bullying even though the member of school staff responsible for children with special educational needs had reassured them that the school would act to stop any bullying behaviour.
17. Mr X told me the school did not arrange the reintegration according to the correct procedure, which is why it failed.
18. In February 2024, the tuition restarted.
19. W’s school held an annual review meeting on the Council’s behalf in May 2023.
20. In mid-August 2023, the Council issued a decision to amend W’s EHC Plan. The Council issued W’s amended EHC Plan in mid-October 2023. It named W’s current school in section I. Mr X appealed the placement named in the Plan, as well as the special educational provision.
21. Subsequently, the Council identified an educational placement which would accept W, which Mr X is happy with. W began attending in September 2024.

Consultations with potential schools

22. In the period I have investigated, the Council consulted with two schools in September 2023 and six in October 2023. Three of those schools declined to offer W a school place because admitting them would be ‘incompatible with the efficient education of others’. One of the schools said it was oversubscribed and could not admit more children. The remainder said they could not meet W’s needs.

Previous Ombudsman investigations

23. In response to a recent investigation, the Council agreed to send us details of its plan to ensure it carries out annual reviews within the statutory timescales.

Findings

Period under investigation

24. 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)
25. Mr X said W has not had full-time education for three years. However, Mr X complained to the Ombudsman in February 2024 and the reasons he has given for not complaining did not persuade me to set aside the time limit. I therefore decided to begin my investigation in January 2023, just over a year before Mr X’s complaint to the Ombudsman, when W’s school attempted reintegration.
26. 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)
27. 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.
28. The Council issued W’s amended EHC Plan in October 2023 and named the school W was already on roll at in section I. Mr X appealed to the SEND Tribunal about the placement named and the special educational provision in the Plan. From October 2023 onwards, W did not receive the full special educational provision in their EHC Plan because they did not attend the school named in their Plan. Therefore, Mr X’s complaint about missing special educational provision was connected to his appeal so I cannot investigate that issue beyond the date of the final amended EHC Plan in October 2023.

Special educational provision

29. Between January and October 2023, the Council owed W the duty to secure the special educational provision in their 2022 EHC Plan. In January 2023 the Council halted W’s tuition, which appears to be because W’s school was attempting to reintegrate them into class. The Council was not at fault for this. Given the length of time W had been out of formal education, it is likely they would have struggled to attend both 10 hours of tuition and go into school.
30. W never attended school for the reintegration and the tuition restarted at ten hours per week, alongside the farm school. Mr X is unhappy the tuition and farm school did not secure the full special educational provision in W’s EHC Plan and thinks W should have had more provision. However, the reintegration failed, at least in part, because Mr X and W’s mother were concerned about peer bullying despite reassurance from the school. Mr X also says the reintegration failed because of issues in how the school arranged it.
31. The duty on the Council was to ‘secure’ the special educational provision, not deliver it. The Council had appropriate oversight of W’s situation sufficient to fulfil its duty. The school was attempting reintegration. Because the failed reintegration was not solely down to W’s needs, I cannot say the Council was at fault for not securing all the special educational provision in W’s EHC Plan. Had the reintegration been successful, the school would have delivered the provision in the Plan on the Council’s behalf.
32. Mr X did not think W’s school was the right placement for them and once the Council issued the amended EHC Plan in October 2023, which continued to name the school, he appealed to the SEND Tribunal. This was the appropriate route for Mr X to use to change W’s school.

Annual review and consultations

33. The Council completed W’s 2022 annual review in March 2022. Therefore, to comply with the legal requirement to complete subsequent annual reviews within 12 months, the school should have held the annual review meeting by February 2023 and the Council should have issued its decision to amend W’s EHC Plan no later than March. It should then have issued W’s amended EHC Plan by May 2023.
34. This did not happen; the school held the annual review meeting in May and the Council did not issue its decision to amend W’s EHC Plan until August 2023. The Council then issued W’s final amended EHC plan in October 2023. This meant the Council ultimately issued W’s amended EHC Plan five months later than it should have. This delay was fault and caused Mr X avoidable frustration, particularly as it meant his right of appeal to the SEND Tribunal was delayed.
35. The delay in the Council completing the annual review and issuing its decision to amend W’s EHC Plan meant it did not start to consult with possible new schools until September and October 2023. One of the schools responded to say it was full and three said they could not admit W without impacting on the efficient education of other children. A refusal on the basis that admitting a child would impact on the efficient education of other children can be because the school is full. Given the Council did not start consulting with schools until after the start of the school year, it is possible that had the Council not delayed reviewing and amending W’s EHC Plan, one of those four schools may have had space for W. Therefore the fault also caused Mr X unnecessary uncertainty about whether W might have found a school place sooner, had it not happened.
36. Given the Council recently agreed to take action to address delays in its annual review processes, I have not made a recommendation to prevent similar fault in future.

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Agreed action

37. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mr X for the frustration and uncertainty he felt because of its delay in the 2023 annual review and amendment of W’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mr X £300 in recognition of his injustice.
38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman