Summary: Mrs X complained about the way the Council dealt with her son, Y’s education. The Council was at fault for failing to follow the annual review process, failing to keep proper records, issuing the final amended EHC plan before the draft amended EHC plan and failing to provide section F provision and transition support. This caused distress, frustration and uncertainty to Mrs X and Y. The Council will apologise and make a payment to recognise the personal injustice caused.

The complaint

1. Mrs X complains about the way the Council dealt with her son, Y’s education. She says the Council:

• delayed reviewing her son’s education, health and care plan;
• failed to follow up actions in her son’s plan;
• failed to provide any additional support after removing Y’s education otherwise than at school package; and
• ignored her requests to resolve these issues.

2. Mrs X said this has caused significant damage to Y’s emotional wellbeing and he has missed out on suitable education.

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The Ombudsman’s role and powers

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

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What I have and have not investigated

7. I have not investigated events that happened before June 2023. This is because it would have been reasonable for Mrs X to have complained about these matters to the Council and Ombudsman before June 2024 and I have not seen a good reason to use my discretion to investigate. Therefore, I am unable to make any substantive findings on anything that happened before June 2023. The end date for my investigation is June 2024, which is when Mrs X made this complaint to the Ombudsman.

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How I considered this complaint

8. I have considered the information Mrs X and the Council provided.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

EHC plan 

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. 

Maintaining the EHC plan

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)  
12. 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. 

Reviewing EHC plans

13. 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.
14. 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) 
15. 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.
16. 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.

EOTAS

17. Education otherwise than at school (EOTAS) is the legal mechanism whereby a child or young person with an EHC plan can receive special educational provision despite being unable to attend an educational setting. 

Section 19

18. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘section 19’ or ‘alternative’ provision.

Local Government and Social Care Ombudsman principles of good administrative practice

19. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction called ‘Principles of Good Administrative Practice’. This says that we expect councils to keep proper and appropriate records.

Background information

20. At the end of May 2022, following a tribunal hearing, the Council issued Y’s final EHC plan. This set out Y’s special educational needs, and a plan to support Y, with timeframes for expected completion.

Summary of key events

21. Mrs X met with the Council mid-June 2023 to discuss Y’s EHC plan. Following this, the Council emailed Mrs X to say it had completed the following actions:

• completed a proposed amended EHC plan using an occupational therapist report which it would send to Mrs X;
• agreed it could offer history lessons with a new provider; and
• requested occupational therapy sessions.

22. Council records from the same time show that several internal discussions took place about Y’s annual review. Council officers recorded that Y was classed as EOTAS and receiving education under section 19 and so not at school. It recorded that it would make further enquiries about the need for an annual review.
23. On 13 June, the Council said it sent a proposed amended EHC plan to Mrs X. However, Mrs X said she did not receive this.
24. On 5 September, Mrs X emailed the Council. She said it had been some months since she had met with the Council, and she had not received a copy of an updated EHC plan. Mrs X also said she was unhappy the Council had failed to arrange Y’s occupational therapy sessions which were part of his EHC plan.
25. The Council responded the same day, via email, to say it had issued the proposed amended EHC plan to Mrs X on 13 June 2023. It attached the amended EHC plan to the email.
26. Mrs X contacted the Council again to say she had not received the document on 13 June. She also said she was frustrated the Council had still not progressed some actions related to Y’s EHC plan.
27. In mid-January 2024, a telephone meeting took place between the Council and Mrs X. Following this, the Council recorded it would arrange an annual review. It also recorded that it would request a visit to Y from an educational psychologist, gain careers advice and consult with colleges, which were all part of the EHC plan.
28. The same day, Mrs X made a stage one complaint to the Council, she said:

• the Council had failed to start or complete several actions on Y’s EHC plan. This included failing to progress actions related to an increase in tuition hours, occupational therapy, physiotherapy, careers guidance, virtual mentoring and an auditory processing assessment;
• the Council failed to arrange half-termly multi-agency meetings to discuss support for Y, which was also part of the EHC plan;
• the Council failed to hold an annual review within required timeframes; and
• Y was in his final year of secondary school and the Council had failed to make any plans about college, despite this being an action in the EHC plan.

29. Shortly after this, Y’s tutor contacted the Council. He said he had provided Y with some career advice, but Y would need further careers input. He also said that Y was attending tuition regularly, five hours per week and had started a weekly session with a wellbeing practitioner.
30. The same week, the Council made several enquiries to different providers about support for Y, including education, exams and careers advice, which were all part of Y’s EHC plan.
31. In mid-February, the Council responded to Mrs X’s complaint. It said:

• following a meeting between the Council, Mrs X, and Y’s tutor to discuss the complaint, it had scheduled an annual review for 13 March 2024;
• the Council partially upheld Mrs X’s complaint about not starting or completing several actions on Y’s EHC plan. It apologised for this, however, did not provide reasons. It said it had taken some steps to start some of these actions now and others could be discussed at the annual review;
• the Council also upheld Mrs X’s complaint that it had failed to hold half-termly multi-agency meetings. It said it had now remedied this through regular reviews that it will convene;
• the Council upheld Mrs X’s complaint that it had delayed Y’s annual review and said it had now arranged this; and
• the Council said it prepared a proposed amended draft EHC plan to send to Mrs X on 13 March, however, it did not send this as it contained errors.

32. On 19 March, Mrs X said she attended an online annual review for Y. However, the Council said in response to my enquiries that no annual review had taken place in 2024, and it had no record of this meeting.
33. On 26 March, the Council emailed Mrs X. It said it had decided to name a college in section I of the EHC plan. This meant that Y’s EOTAS package would end after the present academic year, and he would be expected to attend the named college in September 2024. The Council also said it would send the proposed amended draft and final EHC plan, which it said was discussed at the annual review meeting on 19 March, within the next few weeks. The Council explained it would send details of Mrs X’s appeal rights if this was something she wished to pursue.
34. Mrs X responded to say that at the review meeting, everyone agreed Y would benefit from a continuation of the EOTAS package. She also said the Council should not issue the final EHC plan before the draft.
35. The Council emailed Mrs X a copy of the final amended EHC plan the same day. I have seen a copy of this plan which records incorrectly that a draft EHC plan was issued on 13 March 2024.
36. A few days later, the Council responded to Mrs X to say that EOTAS is only to be used as an interim measure and when management reviewed this, it felt this package would not support Y into adulthood and so instead, named a college. The Council said it would send a proposed amended and final EHC plan, but that it would update the proposed plan with the discussions from the annual review and send this to Mrs X before the statutory deadline of 16 April 2024.
37. Mrs X telephoned the Council on 9 April. She said she was unhappy with the stage one complaint response. Mrs X said the Council did not explain why it had failed to complete the EHC plan actions. She said these delays had been detrimental to Y, as he had not been in school since year six, a period of over five years, and she was concerned the Council now expected Y to go to an unsuitable college. Mrs X said she was worried the Council would not support Y to attend college after being out of school for so long.
38. The Council wrote to Mrs X the same day to say it would escalate her complaint to stage two.
39. On 23 April, the Council made enquiries with a service to support Y to transition to college.
40. The Council responded to Mrs X’s stage two complaint on 24 May. It said:

• it acknowledged the seven actions from the EHC plan were not progressed and the stage one response failed to explain why. It said it was unable to provide a detailed response about why Y’s case had not been progressed but acknowledged this was unacceptable. It upheld this part of Mrs X’s complaint.
• it also partially upheld Mrs X’s complaint that Y was on EOTAS but was expected to go straight to a college without support. This was because at this time, the Council had still not arranged or decided about transition support to enable Y to attend college in September 2024; and
• the Council said it met with Mrs X on 17 April 2024 and a Council officer agreed they would liaise with a service that could support Y. The response said it would ask the SEND team to update Mrs X on this.

41. Mrs X told me in January 2025 that Y was still not attending college nor receiving education of any kind.

Council response to my enquiries

42. In response to my enquiries, the Council confirmed that no annual review took place for Y in 2023. The Council also said that there were no annual review documents in the 2024 annual review folder.
43. I asked the Council to explain why it sent the final amended EHC plan before the proposed amended EHC plan in March 2024. The Council said as the council officers that dealt with this at the time were no longer in employment, it was unable to comment about the reasons for this.
44. I also asked the Council to provide an update on the outstanding actions from the EHC plan. However, the Council provided the same update that it sent to Mrs X in the stage two complaint response in May 2024.

Analysis

EHC plan

45. It is clear from the documentation and the Council’s admissions there have been delays in this case. The Council issued a final EHC plan for Y in May 2022. The Council should have completed an annual review by May 2023. The Council said this did not happen.
46. The Council did say it issued an amended EHC plan in June 2023; however Mrs X says she did not receive this until September 2023. The Council accepted that it did not follow the annual review process to draft this amended EHC plan. The Council’s failure to meet the required timeframes here amounts to fault.
47. This caused Mrs X and Y uncertainty, as although I cannot say what the outcome would have been had the Council completed an annual review in 2023. Its failure to do so means it is unclear whether Y had suitable support by way of an EHC plan between May 2023 and March 2024, which is when it appears it did hold the annual review.
48. Additionally, I am concerned the Council told me it did not complete an annual review in 2024, and it had no documents related to a review taking place. This was despite Mrs X telling me that she attended an online review in March 2024 and the Council providing correspondence with Mrs X that referenced this annual review taking place.
49. We expect a council to keep proper records, the Council’s failure to keep records related to this review is fault.
50. Linked to this fault, the Council accepted that it issued the final EHC plan to Mrs X in March 2024, before issuing a draft amended plan. The Council should have issued the draft amended plan, for Mrs X to comment on, before issuing the final plan, particularly as it had changed Y’s provision named in section I. The Council did not do this, and this is fault.
51. These faults have caused Mrs X and Y uncertainty about how the Council came to the decision to amend the EHC plan, as it has been unable to produce evidence of decision making by way of a review process. This also caused Mrs X and Y distress and frustration as they were denied the opportunity to comment on the draft EHC plan and suggest any changes.
52. The Council should provide personal remedies to Mrs X and Y to recognise their injustice in relation to these faults.

EHC plan provision

53. Y was entitled to support by way of the EHC plan the Council issued in March 2022. Councils have a legal duty to secure all the provision in section F of an EHC plan. In Y’s case, this included an increase in tuition hours, occupational therapy, physiotherapy, careers guidance, virtual mentoring, an auditory processing assessment and half-termly multi-agency meetings.
54. Mrs X chased a number of these actions in September 2023, and then complained the Council had still not progressed seven of the actions on Y’s EHC plan in January 2024. The Council acknowledged that it had not progressed these seven actions in its complaint responses in February and May 2024. It apologised for this, however, did not provide reasons.
55. There is evidence that following Mrs X’s complaint, the Council did start to complete tasks related to some of these actions in January 2024, however there was still significant delay. This is fault because the Council had a legal duty to ensure the provision in line with section F was secured and provided.
56. This caused Y to miss out on seven provisions as named in section F of his EHC plan. This had a detrimental impact on Y as he has lost out on the provision he was legally entitled to, which his EHC plan said he needed to access for his development, wellbeing and to be able to access suitable education. The Council should provide personal remedies to Y to recognise his injustice in relation to these faults. It should also take action to improve its service.

Transition support

57. Mrs X also complained the Council failed to provide any additional support after removing Y’s EOTAS and instead named a college provision in section I. As Y had not attended school since year six, she said he would need significant transition support to be able to attend college.
58. In the stage two complaint response in May 2024, the Council partially upheld this complaint. It said it upheld this because it had expected Y to attend college in September 2024, however, by May 2024, it had still not put in place any transitional support for Y to be able to attend, despite him not having attended a provision, in person for over five years.
59. This was fault, which the Council has already accepted. This caused Mrs X and Y distress and uncertainty about how Y would be supported to attend the provision named in section I.

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Agreed action

60. Within four weeks of our final decision, the Council will:
• apologise to Mrs X and Y for the faults identified. 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 its apology;

• make a symbolic payment of £500 to Mrs X, on behalf of Y, to recognise the frustration, distress and uncertainty caused by the delay in reviewing Y’s EHC plan, failing to keep proper records, issuing the final amended EHC plan before the amended draft EHC plan and failing to provide transition support. This symbolic payment acknowledges the prolonged delay and the vulnerability of Y;
• make a payment to Mrs X, on behalf of Y, of £1000 to reflect the lack of section F provision for Y from June 2023, which is the start date of our investigation to January 2024, which is when the Council started to progress actions in relation to this. We suggest Mrs X uses this payment for Y’s educational benefit; and
• circulate this decision to remind staff dealing with EHC plans of the importance of timely annual reviews, keeping proper records, issuing draft EHC plans before final EHC plans and providing appropriate transitional support.

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

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Final decision

62. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman