Summary: There was fault by the Council. There were delays in issuing final Education, Health and Care Plans after an annual review and a reassessment. This meant the complainant’s ability to appeal to the SEND tribunal was delayed. There was also service failure as the Council asked the school to organise tuition but did not monitor whether the tuition was suitable or provide tuition once the child had left school. There was also delay in providing online provision after a new Education, Health and Care Plan was issued. A symbolic payment and service improvements remedy the injustice caused from the loss of education which meant a child did not sit their exams.

The complaint

1. The complainant, who I shall call Miss X, complains the Council has not provided alternative educational provision from February 2023 until January 2024 for a child, Y, no longer in school. Miss X also complains the provision in her child’s Education, Health and Care (EHC) Plan have not been put in place from January to July 2024.
2. Miss X says there have been delays in carrying out annual reviews and issuing EHC Plans after the reviews and a reassessment. Miss X says the failure to provide a proper level of provision and support for her child has led to a negative impact on her child’s education and caused distress and financial loss.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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

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. (Local Government Act 1974, sections 26B and 34D, as amended) I have investigated events from November 2022 when the annual review took place until July 2024 when Miss X made her complaint to us. I have not exercised discretion to investigate events prior to November 2022 as Miss X could have raised complaints earlier.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. So, we cannot look at the problems Miss X mentioned about the location of the GCSE exams as it was not specified in the EHC Plan where the exams should be carried out.
8. 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. 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)

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How I considered this complaint

9. I read the papers put in by Miss X and discussed the complaint with her.
10. I considered the Council’s comments about the complaint and any supporting documents it provided.
11. Miss X and the organisation 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

12. A child or young person with special educational needs may have an 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. 

Key facts

13. Y had an EHC Plan in mainstream school.
14. There was an annual review of the EHC Plan on 23 November 2022, when Y was in year 11. At the annual review it was recorded that Y had not been in school since 14 November 2022. This was a post-16 transition review and Y had a place at college for September 2023.
15. The Council decided to amend the EHC Plan on 13 December 2022. A second amended EHC Plan was sent to Miss X on 19 January 2023. The final EHC Plan was issued naming the college on 31 March 2023.
16. Y stopped attending school from 2 February 2023. Miss X agreed to a referral to Early Help on 14 February.
17. The Council decided to reassess Y’s needs on 9 June 2023. The draft EHC Plan was issued on 24 August 2023. There were two further draft plan’s issued, with the final EHC Plan issued on 19 January 2024.
18. The final EHC Plan named an online provision and mentoring started in June 2024.

Delay after annual review

19. 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.
20. 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) 
21. 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. The final plan should be issued within 12 weeks of the date of the review meeting.
22. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  
23. The 2022 annual review was on 23 November 2022. The final EHC Plan was issued on 31 March 2023, this took 18 weeks. There was a delay of 6 weeks compared to the statutory deadline but the final plan was issued on the phase transfer deadline. This delay of 6 weeks was fault. I understand that the reason was because Council did consult on the plan a second time with Miss X but the 12 week deadline is set in law and so the Council must comply.

Delay after reassessment

24. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
25. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
26. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
27. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
28. The Council agreed to the reassessment on 9 June 2023 and the final plan was issued on 19 January 2024. It took 32 weeks. This is a delay of 18 weeks over the statutory timescale of 14 weeks. Again, I have noted the Council was consulting with Miss X during this time but the 14 week deadline is set in law.

Conclusion

29. The delay in issuing the final EHC Plans after the annual review and reassessment was fault. This caused injustice to Miss X. Her right of appeal to the SEND tribunal to the contents of the EHC Plan was delayed. The delay also caused her uncertainty and distress as the EHC Plan was not updated after Y did not sit his GCSE exams and so the placement named was not suitable. In order to remedy the uncertainty and distress caused by the delay I recommend the Council pay Miss X £500. This is separate to the loss of education to Y.

Alternative Educational Provision and Provision of Section F in the EHC Plan

30. 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)  
31. 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. 

February 2023 until July 2023

32. The Council was aware that Y was not attending school regularly in November 2022 and that he no longer attended school from 2 February 2023. Y did some mock exams at home in February 2023 which were marked by the school. Y did not sit his GCSE’S in June 2023.
33. The Council said that ‘Y remained on roll at school named in the EHC Plan until July 2023. The Council worked with the school regarding the educational arrangements and requested the school start tuition for Y on 21 March 2023. The school continued to support via an offer of online learning. During this period the Council also consulted with alternative settings and continued to seek suitable post-16 placements’.
34. Miss X has said that Y was offered one hour of online tuition at week from a school teacher but the evening session at 6-7pm was at a difficult time for Y to access. The Council told Miss X on 23 March 2023 that school had been told to set up online tutoring. School told Miss X on 27 March that it would fund 6 hours of online tuition immediately.
35. The tuition agency contacted Miss X on 4 April 2023. The introduction session was on 13 April and sessions started on 19 April but Y was too anxious to attend the online sessions. School told Miss X that it could not arrange for Y to sit exams at home on 2 May 2023 but could arrange for him to take them in school in a room with one other pupil. School then said it could arrange for Y to sit his exam at home on the day before the exam but this was too short notice for Y.
36. The evidence I have shows the Council intended Y to receive alternative educational provision from 23 March 2023.This provision was set up, but I cannot see that the Council monitored the provision or considered how Y would sit his exams. This was fault. Y received no education for the summer term and could not sit his GCSE exams.

September 2023 until January 2024

37. Y’s EHC Plan named a mainstream college for September 2023, which he could not attend. There should have been a new EHC Plan finalised by 15 September after the assessment of Y’s needs that was carried out in June 2023.
38. Miss X says that she agreed with the Council that mentoring and some online education provision would be put in place to start in September 2023. Miss X chased the Council in October and November for the mentoring sessions to start.
39. Y received no education during this period.

January 2024 until July 2024

40. The EHC Plan of January 2024 has provision that says ‘access to mentoring’ and ‘access to online learning’.
41. The Council has accepted that there was no access to online learning or mentoring until June 2024. The delay in supplying the provision in Section F of the EHC Plan was fault.
42. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
43. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.
44. The impact on Y’s education has been severe. He was unable to take his GCSE exams and is at present accessing about an hour a week mentoring. The Council recognised from March 2023 that Y needed tuition and I can see that it has tried to put some provision in place. However, I do not consider that it has adequately monitored whether Y could access his exams or the tuition provided by the school, or organised the provision promised in September 2023. I do recognise that the Council has made attempts to organise the provision but ultimately there was service failure as no alternative educational provision was put in place.
45. In order to remedy the injustice from the loss of education to Y I recommend a symbolic payment to Miss X consisting of:
• £1200 for April 2023 until July 2023. There was some tuition organised for Y in April 2023 and pupils at school would not receive full tuition during this term due to exams. So, I have recommended a payment for loss of education in the middle of the range in our guidance on remedies.
• £4800 for September 2023 until Easter 2024. This is a payment for the loss of education for two terms at the top of the range in our guidance on remedies. I have noted Miss X’s concerns about the failure to source suitable providers and her specific concerns that a particular provider she wanted was not put in place. I consider the symbolic payment for loss of education remedies the injustice from this also and so I do not intend to further investigate or remedy these specific concerns separately.
• £1800 for Easter 2024 until May 2024. This is a payment for the loss of education at the top of the range in our guidance on remedies. As some education was provided for June and July 2024 I have reduced the £2400 payment by £600.

Connexions

46. Miss X has complained that Connexions did not help or attend meetings in 2023. Miss X also complains they exceeded their advisory role in 2024.
47. Connexions give careers information, advice and guidance to young people. Connexions had discussions with Miss X to look at colleges, training providers and health support pathways to support Y with accessing provision. I can see that Connexions were involved, alongside the Council’s EHC Plan team. I do agree that it would have been difficult for Miss X to know which team to contact but I do not consider that it is possible to establish whether there was fault.
48. Fundamentally, it was the EHC Plan team who were responsible for Y’s education and I do not consider its possible for me to separate this out. I consider the remedy for loss of education remedies any injustice caused.

Early Help

49. Miss X complains the Early Help team were too quick to stop support.
50. The Council’s records show that school referred Y to Early Help in February 2023. After some correspondence, Early Help visited Miss X and Y at home in April 2023. There was a Team About the Family (TAF) meeting 2 weeks later. After this meeting it was decided that Early Help would close the case as Y’s needs were around education not family support.
51. I find no fault on this point. It is clear the Early Help team gathered information from professionals after a TAF meeting. I consider the decision to stop support was made aware of all the relevant facts. I can appreciate, though, how frustrating this was to Miss X.

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Agreed action

52. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Miss X and Y. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X £500 for delays in finalising the EHC Plan after the annual review and reassessment.
• Pay Miss X £7800 for Y’s loss of education.
53. Within two month’s of the date of the decision on this complaint the Council should:
• remind officers dealing with EHC Plans of the need to follow the code of practice when a parent asks for a reassessment and to ensure timescales are adhered to when completing EHC Plans following reviews;
• review its procedures to ensure that once it has agreed to provide tuition this is carried out without delay and that provision made by school’s is monitored.
• produce guidance for schools and academies so children or young people can access exams when they are out of school but have already been entered for exams. For example, arranging for home invigilators.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation of this complaint. This complaint is upheld as there has been fault and service failure by the Council. The actions outlined above remedy the injustice to Miss X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman