Summary: Mrs X complained the Council failed to provide the provision in her daughter, Miss Y’s, Education, Health and Care (EHC) Plan since May 2023 and delayed completing an annual review of the EHC Plan in June 2024. Mrs X also complained the Council delayed in responding to her complaint about the matter. The Council was at fault. The Council will apologise and make payments to Mrs X for the frustration she was caused and Miss Y for the provision she missed.

The complaint

1. Mrs X complained the Council has failed to provide the provision in her daughter, Miss Y’s Education, Health and Care (EHC) Plan since May 2023 and delayed completing an annual review of the EHC Plan in June 2024. Mrs X also complained the Council delayed in responding to her complaint about the matter. Mrs X said the matters caused them both frustration, distress and anxiety and Miss Y missed out on a year of education. Mrs X would like the Council to provide an appropriate placement for Miss Y and the provision in her EHC Plan and compensation for the missed education and distress caused to them both.

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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. 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)
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. 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 exercised discretion to investigate what happened following the annual review in June 2022 even though it is a late complaint. This is because it is relevant to matters that happened in May 2023 and so there is good reason to investigate it now.
8. I have investigated the provision Miss Y received between May 2023 and June 2024 when the Council provided its final response to Mrs X. I have not considered the provision Miss Y received after June 2024 as the Council has not yet had an opportunity to respond to any complaint about that period.
9. I have investigated the Council’s actions in reviewing Miss Y’s EHC Plan after June 2024 as it was one of the actions resulting from Mrs X’s complaint.

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How I considered this complaint

10. I read the documents Mrs X provided and discussed the complaint with her on the phone.
11. I considered the documents the Council sent in response to my enquiries.
12. Mrs 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 legislation and guidance

Education, Health and Care Plans

13. 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. The EHC Plan is set out in sections which include the child’s special educational needs (Section B), the special educational provision (Section F) and the name and/or type of educational placement (Section I). 

Reviewing the plan

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 take place. The process is only complete when the council issues a decision about the review.
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. 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.
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting and the council should go on to issue the amended final Plan within a further eight weeks.

Provision

18. 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)  
19. 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; 
• 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. 

What happened

20. Miss Y lives with her mother Mrs X. Miss Y has physical conditions and neuro-differences which means that she has special educational needs. Miss Y has an EHC Plan that sets out the specialist provision she needed to meet her educational needs. At the time of the events in this investigation Miss Y was attending post-19 education.
21. In 2022 Miss Y’s EHC Plan stated she should attend College 1 for post-16 provision however she had been attending College 2 since September 2020. An annual review of Miss Y’s Plan was held in June 2022. The records of the review show the Council agreed Miss Y should continue to attend College 2 for three days a week to complete her level three diploma with the intention of finishing education in the summer of 2023.
22. Mrs X contacted the Council in May 2023 and said Miss Y had only just started the course and College 2 had changed plans, timetables and staff members without notice and Miss Y was struggling to engage. The Council met with Mrs X, Miss Y and College 2 and the Council recorded Miss Y wanted to finish her qualification at College 2 so she had the necessary points to access higher education in the future.
23. At the end of May 2023 the Council told Mrs X it intended to amend Miss Y’s EHC Plan following the annual review in 2022.
24. College 2 told the Council Miss Y had been attending a supported internship, not a diploma, and it had not offered Miss Y the additional units she needed to complete the level three diploma. It said because Miss Y did not want to complete the internship it offered it would not be able to meet her needs next year.
25. The Council issued an amended final EHC Plan for Miss Y in June 2023. It said Miss Y would be supported to complete her diploma and named College 2. It set out additional pastoral and preparing for adulthood support Miss Y should receive.
26. College 2 held an annual review in September 2023. It recorded that Miss Y was told in May 2023 that she could not return to College 2 due to staff sickness and had been without education since. It said she was unable to finish her level three diploma. College 2 reported it was not able to deliver any level three courses for the 2023/24 academic year. It said if Miss Y still wanted to do the qualification it could support her to identify a suitable provider and transition to a new college. It said it could continue to provide the pastoral and social and emotional health and career guidance set out in the Plan.
27. Mrs X complained to the Council in September 2023 that Miss Y had been without an education since May 2023 and the Council had not taken any action. She said the Council did not complete the annual review from June 2022 until June 2023 which meant that the EHC Plan was then out of date and that new information had not been included. Mrs X said College 2 had misinformed the Council about Miss Y’s progress and the Council should investigate why the course Miss Y was enrolled on was suddenly stopped.
28. College 2 offered Miss Y one day a week pastoral support in October 2023.
29. The Council told Mrs X in November 2023 that it needed longer to consider her complaint and would respond in 20 working days. It also contacted College 2 about a start date for Miss Y. College 2 said it would discuss a start date in a meeting the same month.
30. Mrs X told the Council Miss Y had only received two days of provision in January 2024. The Council asked the College for an explanation. College 2 asked the Council to fund an online diploma for Miss Y which it said it would not support her with.
31. In February the Council offered Miss Y a bespoke package with a training provider to complete the diploma. Mrs X spoke with the provider who stated it was struggling to find somewhere to examine the qualification and it was unable to provide in person or group lessons. Mrs X declined this offer on Miss Y’s behalf as it was not appropriate and explained Miss Y wanted to return to College 2 and work with her established support workers. The Council told College 2 it would not fund the online diploma.
32. Mrs X complained to us in March 2024. We asked the Council to respond to Mrs X’s complaint.
33. The Council issued its decision to maintain Miss Y’s EHC Plan at the end of April.
34. College 2 told the Council that Miss Y returned to college in early May 2024.
35. The Council wrote to Mrs X in May. It apologised it had failed to provide a good service and said:
• Staffing issues at College 2 meant Miss Y could not attend or gain the qualification she would have liked.
• There was now pastoral support in place to enable Miss Y to attend College 2.
• College 2 would hold an annual review to update the Plan.
• It said the course had stopped because College 2 could not identify the staff required to run it. It said this was not a Council responsibility.
• It said it had offered Miss Y alternatives but these had been declined.
36. Mrs X was dissatisfied and asked the Council to consider her complaint further.
37. The Council responded in June 2024 and said Miss Y had been without an education since May 2023. It said it had delayed completing the annual review process from June 2022 until June 2023 and the Plan had not been updated since June 2023 but it was arranging an annual review imminently.
38. Dissatisfied with the Council’s response Mrs X complained to us.
39. The Council held an annual review of Miss Y’s Plan at the beginning of July 2024. Two weeks after the review meeting the Council told Mrs X it intended to amend Miss Y’s EHC Plan. The Council issued an amended final EHC Plan for Miss Y in mid-October 2024. It told Mrs X and Miss Y of their appeal rights if they disagreed with the content of the Plan.
40. In response to my enquiries the Council said the delay in responding to Mrs X complaint was due to staffing issues. It said it had employed a SEND complaint officer and additional staff to deal with historical complaint backlogs.

My findings

Provision

41. The Council delayed in amending Miss Y’s EHC Plan for over a year following the annual review in 2022. That was significantly longer than the 12 weeks the case law and legislation allow and was fault. During that time Miss Y and the Council believed Miss Y was completing a level three diploma, College 2 believed Miss Y was attending a supported internship. This caused Miss Y frustration and distress when she was unable to complete the qualification and gain study points she believed she was accessing. Had the Council acted without fault, this misunderstanding could have been identified and rectified at a much earlier stage.
42. When the Council issued an amended EHC Plan in June 2023 it named College 2 and said Miss Y would be supported to complete her diploma and receive pastoral support. The Council was aware from September 2023 College 2 was not offering the diploma and Miss Y was not attending. And from November 2023 it knew Miss Y still did not have a start date for one day of pastoral support. Other than send sporadic emails to College 2 there is no evidence the Council took appropriate action to ensure Miss Y received the provision in her Plan which is fault. The Council accepted in June 2024 that Miss Y had not received the specialist provision in her Plan since May 2023. It did not identify the impact of this fault or provide any remedy. The faults also caused Mrs X frustration. I have made an appropriate recommendation below.

Delayed annual review 2024

43. The Council told Mrs X in June 2024 it would review Miss Y’s EHC Plan. The Council held an annual review meeting in in early July 2024 and issued its decision to amend the Plan within two weeks. It went on to issue an amended EHC Plan within a further 13 weeks, which is five weeks longer than the case law sets out and was fault. This caused Mrs X a further frustration.

Complaint handling

44. Mrs X first complained to the Council in September 2023. The Council told Mrs X in November that it needed longer to consider her complaint and only provided a stage one response to Mrs X in May 2024 after we had asked it to do so. The delay in responding to Mrs X’s complaint for eight months was fault and caused Mrs X frustration.
45. In other cases we have investigated this Council has provided evidence of the steps it has taken to improve complaint handling; I therefore have not made a further service improvement recommendation here. We will continue to monitor this through our casework.

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Agreed action

46. Within one month of this decision the Council will:
1. Write to Miss Y and apologise for the frustration and distress caused to her by the Council’s significant delay in completing the annual review, and for the specialist provision she missed. The Council will pay Miss Y a symbolic amount of £500 for the frustration and distress she was caused and £3,600 for the three terms of specialist provision she did not receive. This amount takes into account Miss Y’s needs and circumstances and is in line with our guidance on remedies.
2. Write to Mrs X and apologise for the frustration she was caused by the Council’s delay in responding to her complaint and completing the 2024 annual review. The Council will pay Mrs X a symbolic amount of £300 to recognise the same.
47. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apologies I have recommended.
48. Within three months of this decision the Council will:
1. Review its policy for handling complaints on SEND matters and ensure the policy requires complaint investigations to consider appropriate remedies for injustice caused by any fault it upholds.
2. Once it has reviewed its policy the Council will also remind relevant staff to consider appropriate remedies in its complaint responses.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

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Investigator's decision on behalf of the Ombudsman