Summary: Ms X complained the Council failed to secure educational provision for her child Y and failed to complete an annual review on time. We upheld the complaint. Y has a loss of educational provision and Ms X had delayed appeal rights and avoidable distress. The Council recognised this and offered a partial remedy for two terms of missed provision. The Council will make a further payment for missed provision for the Autumn Term of 2024.

The complaint

1. Ms X complained the Council:
1. Failed to provide her son Y with sufficient special educational provision and/or alternative provision between September and December 2024
2. Failed to complete the annual review of Y’s Education Health and Care Plan within the required timescale
3. Lost a copy of the 2022 Plan and did not send a copy of that Plan to the school that cannot now meet his needs
2. Ms X said this caused avoidable distress and a loss of educational provision.

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The Ombudsman’s role and powers

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. 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)
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 investigated complaints (a) and (b). I did not investigate complaint (c) because it is late with no reason for the delay in complaining to us.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
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

Relevant law and guidance

10. A child with SEN may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections including:
• I – the placement
• F – special educational provision (SEP)
11. There is a right of appeal to the SEND tribunal about sections F and I.

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. 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.

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. 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.

15. The parent must have at least 15 days to comment and make representations on proposed changes including requesting a particular school (SEN Code paragraph 9.195)
16. If the council decide to continue with the amendments, it must issue the final amended EHC Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196)
17. When a council concludes an annual review by proposing to amend an EHC plan, it must notify the parent/young person of this decision and what the proposed amendments are within four weeks of the annual review meeting. The final EHC plan must be issued as soon as practicable, within eight weeks of the draft plan being issued. Therefore, the council must send the final amended EHC plan within 12 weeks of the annual review meeting. (R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin))
18. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Children and Families Act 2014, section 42).
19. Councils must arrange suitable education at school or elsewhere for pupils of compulsory school age 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 education provision (AP).

What happened

20. I have taken the key events from the Council’s stage two complaint response and from information Ms X provided in her complaint to us.

2023

21. Y has special educational needs and has an EHC Plan. He was on the roll of School A from September 2023 which was the placement named in Section I.
22. Y only received three hours a week of outdoor education between September 2023 and July 2024 while remaining on School A’s roll. Ms X told me School A kept excluding Y and he was bullied. She said School A could not meet his needs, class sizes were to big and there was too much change in teaching staff for him to cope with.
23. School A did not inform the Council of any concerns about Y’s attendance between October and December 2023. It also failed to arrange an annual review meeting which was due in November 2023.

2024

24. The Council found out in January 2024 that Y was not accessing full-time education. The SEND case officer emailed School A at the end of January for an update on the annual review meeting.
25. The annual review meeting took place on 1 March. Y’s attendance was 38.2%. He had 59.2% authorised absence. The Council told School A to arrange AP during the annual review meeting (using the funds already available in the EHC Plan) and suggested an on-line mentoring and gaming service and a farm school. School A did not put this in place and its SENDCO told the case officer AP was niche and difficult to implement. In June, School A gave notice to end the placement at the end of July 2024.
26. On 10 July, the Council’s governance board agreed to a change of placement for Y and to consult non-maintained schools. The board also agreed to fund AP: 6 hours of outdoor education, 15 hours of tutoring and 3 of mentoring. The AP team began to consult with providers on 19 July
27. Ms X first complained to us in July 2024. She had only received one response from the Council. So we told her to make a second stage complaint. The Council provided a second stage response in August. It upheld her complaint finding:
• Its stage one response did not address all her complaints and did not have enough detail
• Y’s annual review should have happened in November 2023. The AR meeting did not take place until 1 March 2024. The Council received the papers from school on the 18th. The Council should have issued a decision within four weeks of the review meeting so by 29 March. If the decision was to amend the Plan, the final Plan should have been issued within 12 weeks, so by 24 May. It had not yet issued a final Plan, delaying her appeal rights.
• The Council should have had more active involvement when it became aware Y was not attending full-time education in January 2024. This was to avoid Y missing further education. Y had a loss of two terms of educational provision as a result of the failure to step in and arrange provision.
28. The Council offered payments of £600 to reflect Ms X’s uncertainty and frustration caused by delays in the annual review process, and £4800 to reflect the loss of two terms of educational provision (January to July 2024).
29. In October 2024 Ms X complained to us again as she was unhappy with the Council’s stage two response. She told me the Council had made the payments it had agreed in the stage two response. At that time, Y was still only receiving six hours a week of outdoor education) on a Thursday.) She also said she still did not have Y’s final amended EHC Plan, only a draft issued on 19 August.
30. The Council issued Y’s final EHC Plan on 11 October 2024. Section I had no named placement, only a type of placement (non-maintained independent school)
31. Ms X told me the Council had now arranged all the AP it had agreed to provide in July 2024. She said this started in January 2025.

Was there fault and if so did it cause injustice?

Failed to provide Y with sufficient special educational provision and/or alternative provision between September and December 2024

32. The Council’s governance board agreed to fund a package of 24 hours a week of AP for Y in July 2024. Y received six hours from September 2024, but the remaining hours did not start until January 2025. The delay was fault, not in line with the duty in Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996. It caused a loss of provision for Y.

Failed to complete the annual review of Y’s Education Health and Care Plan within the required timescale

33. Y’s annual review should have been completed and a decision to amend issued within a year of the previous review, so in November 2023. The final amended Plan should have been issued within 12 weeks of November 2023, so by January 2024. It wasn’t issued until October, a delay of around nine months which was fault causing avoidable frustration and a delay in appeal rights, which have not been used. The Council has recognised the delay, apologised and offered a symbolic payment to recognise the injustice. This is an appropriate remedy.

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Agreed Action

34. Within one month of my final decision on the complaint, the Council will make a further payment of £1500. This reflects the loss of 18 hours a week of a package of 24 hours of alternative educational provision for the Autumn Term of 2024. The package was agreed by the Council’s governance board in July 2024 and should have been fully in place from September 2024.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I found fault causing injustice. The Council has agreed to make a payment to reflect the injustice so I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman