Summary: delays by the Council finalising Mrs M’s son B’s Education, Health and Care (EHC) Plan delayed Mrs M’s right of appeal to the SEND Tribunal. There is no evidence the Council considered its duty to make alternative arrangements for B’s education when he stopped attending school in November 2023. The Council has agreed a symbolic remedy for the injustice caused.

The complaint

1. Mrs M complained about delay amending her son B’s education, health and care (EHC) plan. She complained B was out of school for a year as a result.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Once 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 considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, has an education, health and care (EHC) plan maintained by the Council. He was a pupil at a mainstream secondary school.
7. The school held an annual review of B’s plan on 7 November 2023. Following the review, the Council agreed to amend the Plan. Mrs M wanted B to attend a special school and asked the Council to name the school in the plan.
8. B stopped attending school in November 2023 due to bullying and anxiety.

Mrs M’s complaint to the Council

9. Mrs M complained to the Council on 18 April 2024. She said B had been out of school since November 2023, the Council had not amended his EHC Plan and the SEN team were not responding to her calls and emails.
10. The Council responded on 15 May 2024. The Council said it had agreed to amend B’s EHC Plan on 18 December 2023, which was two weeks outside the time limit and apologised for the delay. The Council said it had consulted Mrs M’s preferred special school, but the school’s response was late. The Council said it should have finalised the Plan naming B’s current mainstream school so Mrs M could appeal to the SEND Tribunal. The Council offered Mrs M a payment of £300 for her ‘frustrated right of appeal’.
11. Unhappy with the Council’s response, Mrs M asked the Council to respond at the second stage of its complaints process.
12. The Council responded on 18 June 2024. The Council said it was satisfied it had responded to Mrs M’s complaint at the first stage of its complaints process. It said it had referred Mrs M’s correspondence to the SEND team to ‘facilitate [Mrs M’s] receipt of the EHC plan upon it being finalised.’ The Council explained Mrs M would have a right of appeal to the SEND Tribunal about any concerns she may have with the Plan.
13. The Council issued a final Plan on 9 July 2024. The Plan named B’s current mainstream school.
14. Unhappy with the Plan, Mrs M appealed to the SEND Tribunal. Mrs M’s appeal concluded with a Consent Order and B started at Mrs M’s preferred school in November 2024.

Reviewing Education, Health and Care Plans

15. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
16. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
17. Following the meeting, the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
18. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
19. Councils must consult with schools before naming them in a child’s Plan.
20. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision in their child’s Education, Health and Care Plan.

What happened

22. B’s school held a review meeting on 7 November 2023. Following the meeting, the Council agreed to amend B’s Plan. It should have issued a final amended Plan within 12 weeks of the meeting, that is by 30 January 2024. The Council issued the final Plan on 9 July 2024. This was 38 weeks late. The Council did not meet the timescales set out in regulations. This is fault.
23. In response to my enquiries, the Council apologised for the delays and explained that it was short-staffed at the time. The Council said it had recruited more staff and set up additional teams to provide a better service.
24. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
25. Delay by the Council finalising B’s EHC Plan delayed Mrs M’s right of appeal to the SEND Tribunal. The law prevents me considering what happened once Mrs M appealed, but I can say that it is likely the outcome of Mrs M’s appeal would have been known and B would have started at Mrs M’s preferred school sooner if the Council had not delayed. I cannot say exactly when this would have happened.
26. Also, Mrs M told the Council B was out of school because of bullying and anxiety. In these circumstances, the Council may be responsible for B’s education. The Council has a duty to arrange education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
27. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each child and be able to demonstrate how they made their decisions.
28. I asked the Council what it did when it learned B was out of school.
29. The Council said that due to a member of staff leaving and a lack of information on record, it was unable to say. The Council expressed its regret and explained the steps it had taken to ensure thorough records are kept.
30. Without records, it is difficult to say what should have happened when B stopped attending school.
31. However, since the Council was aware, and without any evidence to show the Council satisfied itself B was receiving suitable education, I find on balance the Council failed to fulfil its role as ‘safety net’. It is likely the Council should have made alternative arrangements for B’s education once he stopped attending school.
32. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council. The Council accepted my recommendations. The actions the Council has agreed to undertake are at the end of this statement.

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Agreed action

33. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
34. Within six weeks of my final decision, I recommended the Council:
• apologises for the delays amending B’s EHC Plan and its failure to respond to B’s absence from school;
• offers a symbolic payment of £4,000 to acknowledge the impact of the delayed right of appeal to the SEND Tribunal and the Council’s failure to consider alternative arrangements for B’s education once he stopped attending school.
35. The Council accepted my recommendations. The Council should provide us evidence it has complied with the above actions.
36. We can also make recommendations to ensure similar faults do not happen in the future. I have not made recommendations because the Council’s response to my enquiries showed the Council was already taking steps to address the problems.

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Final decision

37. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman