Summary: Ms X complained the Council failed to provide her son with any education and provision between September 2022 and February 2023. She also says it delayed dealing with her complaint about the matter. We find the Council was at fault for failing to provide Ms X’s son with any education and provision. It was also at fault for its significant delays in responding to Ms X’s complaint about the matter. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms X complained the Council failed to provide her son (Y) with any education and provision between September 2022 and February 2023. She also says the Council delayed dealing with her complaint about the matter.
2. Ms X says the matter caused distress, upset and she had to pay for Y to receive some education. She says Y was without the education and provision he is entitled to.

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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. 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)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

8. I considered information from Ms X. I made written enquiries of the Council and considered information it sent in response.
9. Ms 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

Special educational needs

10. 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. 
11. 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

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
13. 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) 
14. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

Personal budgets

15. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Alternative provision

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

18. This chronology provides an overview of key events in this case and does not detail everything that happened.
19. Y has special educational needs and an EHC Plan. He was attending a school (School A). The Council sent Ms X a draft EHC Plan for Y in July 2022 after an annual review in April. It said it would name a different school (School B) in Y’s EHC Plan for him to attend from September. It said School B had accepted Y. Y left School A at the end of the academic year (July 2022).
20. Ms X emailed the Council in August and said it had not sent her Y’s final EHC Plan. She sent a further email in early September and said she had not received any further information about School B. The Council responded and said it sent a consultation letter to School B in mid-July, but it had not received a response. It said it had chased School B for an update. It would finalise the EHC Plan once it received a response.
21. Ms X emailed the Council in mid-October and said she had not heard anything further. She said Y was now behind with his education. The Council responded and said there was a misunderstanding with Y’s start date for School B. The offer for School B was for September 2023. School B could not offer anything sooner. It said it could offer tuition as an interim arrangement.
22. Ms X sent the Council her proposal for a personal budget in October so Y could access an education and the provision in his EHC Plan. The Council responded and said her proposal was not in line with the provision in Y’s EHC Plan. It said it would secure a tutor for Y’s core GCSE subjects.
23. Ms X complained to the Council in November about its failure to provide Y with any educational provision. The Council acknowledged Ms X’s complaint.
24. The Council emailed Ms X and asked whether she preferred for Y to receive 1:1 or online tuition for his core subjects. Ms X responded and said she wanted a personal budget so she could organise suitable tutors for Y. The Council responded and said it did not agree to a personal budget. It said she could appeal to the head of service. It said it needed to put in place tuition for Y. It repeated its suggestion of either online or 1:1 tuition. It also said it had sent consultation letters to other schools.
25. Ms X sent a further email to the Council and expressed her frustration about Y not receiving an education. The Council agreed to respond to Ms X’s complaint by 25 November.
26. The Council sent a referral at the end of November for Y to receive 1:1 tuition.
27. The Council updated Ms X in December. It said it had chased a school it consulted with in November. It agreed to consult with another school (School C).
28. Ms X chased the Council for a response to her complaint in January 2023.
29. School C confirmed it had spaces available and would accept Y. Y started attending School C in February.
30. After the Council failed to respond to Ms X’s complaint, she contacted the Ombudsman in April 2024. We contacted the Council and asked it to consider Ms X’s complaint.
31. The Council spoke to Ms X about her complaint in July. She asked it to reimburse the money she had spent educating Y when he was not attending school. She also asked it to investigate why its communication was negative. The Council sent Ms X an email in late July. It apologised for its delay in responding to her complaint. It said its communication was unacceptable. It said its special educational needs team had taken steps to improve their communication since January 2024. It also said it was increasing the number of special educational needs officers. It offered her a meeting to discuss her request for a reimbursement. Ms X responded on the same day and said she had already provided receipts. She said a meeting was unnecessary.
32. Ms X chased the Council for a response in August. The Council apologised to Ms X for the delay. It sent a further email in September and said it would reimburse her £3,653 rather than the £5,262.98 she had asked for. It said it would not reimburse her for everything (sports provision) as it was not in line with what Y would have accessed if he was in an educational setting. Ms X’s advocate responded to the Council. She said Ms X tried her best to provide a broad and balanced education for Y. She asked it to provide the legislation to support its proposal. The Council did not respond despite several chasers.

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Analysis

33. The issues in this case start from July 2022, but Ms X did not refer her complaint to us until April 2024. Events before April 2023 would usually by the restriction in paragraph four of this statement. However, I have decided to exercise discretion to look at Ms X’s complaint because she complained to the Council in November 2022 and chased for responses after this. The Council took 20 months to respond to the complaint.
34. The Council told Ms X Y could start at School B in September 2022. This was the wrong information and is fault. This meant Y did not have a school to attend at the start of the new academic year.
35. The Council has a legal duty to provide a young person with the section F provision in their EHC Plan. It failed to provide Y with any provision from September 2022 to February 2023. This is fault.
36. The Council also has a duty under section 19 of the Education 1996 to provide suitable education for children who are out of school because of exclusion, illness or for other reasons. The Council failed to provide Y with an education when it knew he was out of school. It made a referral for him to receive 1:1 tuition at the end of November. However, Y did not receive any tuition and there is no evidence the Council chased the referral up.
37. The Council’s faults have caused Y a significant injustice. He was without a full-time education and the specialist educational provision in his EHC Plan. It was an important year for Y as he was starting his GCSE’s. Children have a legal right to an effective education and any time they miss is difficult to replace later. There was also an injustice to Ms X. The Council caused her avoidable distress by not making suitable alternative arrangements for Y’s education and falsely raising her hopes he had a place at School B. The Council also failed to keep her appropriately updated and she had to chase several times to find out what was happening.
38. Ms X provided Y with some provision from September 2022 to February 2023. However, this was not a full-time education, which is what Y was entitled to. It was also not the provision in line with section F of his EHC Plan. The Council should make a payment to Ms X to cover the loss of Y’s education and provision.
39. The Council said it will not reimburse Ms X the full amount she spent (£5,262.98) educating Y because some of it includes provision which was not in line with a school’s offer. However, if the Council had not been at fault, Ms X would not have had to source this provision. She was trying to provide Y with some provision that was broad and balanced because of the Council’s failures. Therefore, the Council should reimburse Ms X the full amount.
40. Y’s annual review happened in April 2022 and so the Council should have issued his final EHC Plan by July 2022. In its response to my enquiries, the Council said it failed to issue a final EHC Plan during the complaint period. This is fault and it means Ms X’s appeal rights to the SEND Tribunal were frustrated.
41. The Council significantly delayed dealing with Ms X’s complaint. It should have responded to her stage one complaint within 10 working days. It took 20 months, and this was after prompting from this office. This caused Ms X distress and upset, and she was put to time and trouble in chasing a response.

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Agreed action

42. By 11 February 2025 the Council has agreed to:

• Apologise to Ms X and Y for the injustice caused by fault in this statement.
• Pay Ms X £200 for the injustice caused from its significant delays in responding to her complaint.
• Pay Ms X £300 for the injustice caused from how it handled Y’s education and specialist educational provision and its delay in finalising Y’s EHC Plan.
• Reimburse Ms X £5,262.98 which is the money she spent educating Y.
• Pay Ms X £1,800 for the loss of Y’s education and specialist educational provision from September 2022 to February 2023. We suggest Ms X uses this payment for Y’s educational benefit.

43. By 11 March 2025 the Council has agreed to issue written reminders to relevant staff to ensure they understand:

• The Council’s legal and non-delegable duty to provide a child or young person with the special educational provision set out in section F of an EHC Plan.
• The Council’s duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons or otherwise.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault by the Council, which caused Ms X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman