Summary: Miss X, complained about the lack of support provided by the Council. She said the provisions in her son’s education, health and care plan were not delivered; the Council has repeatedly ignored her; reviews of her son’s plan were not held, and she did not get the opportunity to put forward her preferred placement choice. We find the Council was at fault for the delay in checking whether provisions were in place; failure to consider whether all provision were in place; failure to respond to her emails and delay in arranging the annual review. This caused Miss X and her son significant distress. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Miss X, complains about the lack of support provided by the Council. She said:
1. the provisions in her son’s education, health and care (EHC) plan were not delivered;
2. the Council has repeatedly ignored her;
3. reviews of her son’s EHC Plan were not held; and
4. she did not get the opportunity to put forward her preferred placement choice.

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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 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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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What I have and have not investigated

9. I have investigated parts a, b, c and d of the complaint. But I have not investigated the Council’s decision to name placement B in the EHC Plan. This is because Miss X could have appealed to the Tribunal.
10. I have investigated matters between July 2023 and July 2024. Miss X brought her complaint to us in July 2024. I have not investigated matters prior to July 2023 as I consider it would have been reasonable for Miss X to have complained to us about this sooner.

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How I considered this complaint

11. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
12. Miss X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

13. 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. 

Reviewing EHC Plans

14. 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.
15. 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) 
16. 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.
17. 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.

Maintaining the EHC Plan

18. 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)  
19. 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. 

Summary of the key events

20. Miss X’s son, Mr Y, has an EHC Plan. This was finalised in December 2021 naming a college from January 2022. It was noted he had been electively home educated prior to this.
21. Miss X contacted the special educational needs and disability information, advice and support service (SENDIASS) in 2023. She had concerns around the college not implementing Mr Y’s EHC Plan.
22. SENDIASS signposted Miss X to support services. They also advised Miss X that the Council was responsible for the EHC Plan. They suggested she speak with the Council and the college.
23. An annual review was held in August 2023. A request was made by the college for some additional 1-1 provision.
24. The Council sent Miss X a copy of the draft EHC Plan in the same month and asked her to review it.
25. Miss X contacted the Council in October 2023. She asked for a call to discuss some things.
26. In the same month, the Council sent Miss X a draft EHC Plan. It gave details of the process she needed to follow to request a personal budget. It also said as Mr Y was due to transfer placements in the next academic year, Miss X would need to send in her parental request by the 31 October.
27. Miss X emailed the Council twice in November 2023. She asked for details of how she could return the signed copy of the EHC Plan. She also asked how she can send in her request for a personal budget.
28. In January 2024, the Council consulted with three placements.
29. Miss X contacted the Council in the following month for an update. She raised concerns around the provisions in the EHC Plan not being followed.
30. The college contacted the Council in February 2024. They asked to meet to review the EHC Plan in early March 2024. This was to go through issues that needed urgently addressing. They said several issues had been raised around the college provisions.
31. In March 2024 the Council told Miss X which placement it would name in the EHC Plan. This was placement B. But Miss X deemed this to be unsuitable and asked for her preferred placement to be named, placement A.
32. The Council confirmed placement A had requested further information. It said it would name the other placement. But said when placement A responds, this would be considered by its panel for a decision.
33. Mr Y’s EHC Plan was finalised in March 2024. It named placement B.

Complaint to the Council

34. Miss X complained to the Council in March 2024. She said:
• since starting college, she had been in several meetings to discuss why the EHC Plan was not being followed;
• the annual review was overdue;
• she had been contacting the Council to find out when the EHC Plan would be finalised with no response;
• college were not providing extra maths despite this being written into the plan;
• she had requested an emergency review;
• Mr Y was meant to have touch typing which had not been supplied; and
• she has had no response to her request for a personal budget.
35. The Council responded at stage one of its complaints process in May 2024. It said:
• in October 2023 when it sent her a copy of the draft EHC Plan, a letter was issued which stated Mr Y was due to transfer schools during the next academic year;
• the team felt it was appropriate to name placement B as they could meet his needs;
• Miss X’s preference was consulted on the 18 March 2024. They provided a response after the plan was finalised stating they could not meet Mr Y’s needs. It asked Miss X to contact the co-ordinator if she still thought this college can meet Mr Y’s needs. It said it would then explore this; and
• it had not seen any evidence to indicate Miss X had tried to contact the service. But it said it was evident after speaking with her that the Council had not provided her with a clear update regarding the finalised EHC Plan process. It said this may have resulted in misunderstandings and delays consulting the preferred parental placement. It apologised.
36. Miss X requested her complaint be escalated. She said:
• she emailed the Council regarding a review meeting but said she was ignored; and
• provisions in the plan were not being delivered.
37. The Council responded at stage two of its process in July 2024. It said:
• it apologised for the delayed response;
• the complaint was upheld at stage one as it was evident the service had not provided her with a clear update regarding the final plan;
• it is required to name the post-16 placement before the 31 March 2024. The Council received her parental preference on the 18 March 2024. It consulted the placement but they said they could not meet Mr Y’s needs;
• Miss X was made aware of her right to a personal budget in a letter sent to her on the 20 October 2023;
• the college had not outlined any provision that they are unable to provide;
• the college would investigate matters around the support and provision not being provided; and
• it offered Miss X a payment of £200 in acknowledgment of the time and trouble caused to her in pursuing her complaint.
38. As part of the complaint process, the Council asked the college for further details around the provision that Miss X said was not in place. The college investigated Miss X’s complaint under their own complaints procedure and said:
• Mr Y had 8 hours of English per week which was taught in small groups. He was given additional support from the head of English;
• whilst in maths, Mr Y had 4 hours a week of timetabled lessons and was able to attend weekly drop-in sessions;
• Mr Y was given additional support outside of his class where he was supported by a teaching assistant (TA) during supervised study sessions;
• Mr Y was provided with his own laptop whilst in college. He was provided with TA support in class to assist with his note taking and general organisation;
• as part of his access arrangements, Mr Y was provided with a scribe for public exams;
• TA’s worked with Mr Y and acted as his scribe in class mocks and public exams;
• Mr Y was provided with a writing slope and movement breaks. Mr Y seemed happy with this arrangement and did not indicate there were any issues;
• there were regular meetings with Mr Y to help him to cope with his anxieties and to address any issues or concerns;
• there were weekly drop-in sessions to help with university/college applications. But they said overtime Mr Y seemed reluctant to want to discuss his next steps; and
• Mr Y was timetabled to attend weekly PE. At the start of each year, students were given a questionnaire to complete stating with sports they would like to take part in. Mr Y enjoyed his lessons and was always an active participant.

Analysis- was there fault by the Council causing injustice?

Part a of the complaint

39. As stated in paragraph 19 it is not practical for councils to keep a watching brief on whether schools and others are providing the special educational provision in section F. The paragraph sets out what systems we would expect a council to have in place.
40. There was an annual review in August 2023. There is nothing noted in the review paperwork to suggest provision was not being provided. The college contacted the Council in February 2024 and asked for an early review. They said this was to discuss things that needed to be urgently addressed and issues with college provision. I have not seen any evidence to suggest the Council responded to this. This is fault.
41. Miss X raised a complaint in March 2024 and said the EHC Plan was not being followed. The Council’s stage one response fails to acknowledge this part of the complaint. This is fault. After Miss X escalated her complaint, it considered it at stage two. It said the college would be investigating matters around the support and provision not being provided. It also said the college had not outlined any provision they could not provide.
42. Guidance says if a council asks an organisation to make the provision and they fail, the Council remains liable. Therefore, we would have expected the Council to have investigated the concerns when it first became aware of the issues, which was in February 2024 when the college and Miss X made it aware.
43. Whilst I acknowledge the Council’s investigation into whether the provision was in place was delayed which did cause significant distress to Miss X, the Council has now satisfied itself the provision is in place. The college provided the Council with details of the investigation it carried out. This is detailed in paragraph 38. The college notes the provision has been in place throughout. But Miss X said no touch typing or wobble cushion was provided. The EHC Plan does state Mr Y would need touch typing to support him with using a laptop. It also stated he needed to use move ‘n sit cushion. There is no evidence to suggest this was considered. This is fault.
44. On balance, I cannot say that Mr Y did not have access to touch typing or the move ‘n sit cushion. But as there was a failure to investigate this aspect of Miss X’s complaint, there has been uncertainty caused as to whether Mr Y did have access to this provision.

Part b of the complaint

45. Miss X asked the Council for a phone call in October 2023. She sent a further two emails in November 2023 regarding the EHC Plan and her personal budget request. In February 2024, Miss X asked for an update and raised some concerns around the provision not being in place. I have not seen any evidence to suggest the Council responded to any of the emails. This is fault. This caused significant distress to Miss X.

Part c of the complaint

46. In response to my enquiries the Council said after the December 2021 EHC Plan an annual review was held in August 2023. It said a draft plan was issued in October 2023, followed by a final plan in March 2024. The Council has acknowledged the delay in arranging annual review meetings. It has offered to pay Miss X £400 in recognition of the delays, failure to maintain oversight of the annual reviews held and frustrating her right of appeal. In my view this is an appropriate remedy.

Part d of the complaint

47. The Council sent Miss X a letter in October 2023 inviting her to send in her preferred placement by the 31 October 2023. Therefore, Miss X did have the opportunity to put forward her preferred placement choice and I do not consider there to be any fault by the Council. As stated in paragraph 9, I cannot consider the Council’s decision to name the college it did as this was appealable.

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Agreed action

48. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £400 in acknowledgement of delays in arranging the annual review and frustrating her right of appeal;
• investigate whether the touch typing and move ‘n sit cushion is in place. If it is not, the Council should arrange for this to be in place in line with the EHC Plan;
• pay Mr Y £200 in acknowledgment of uncertainty caused to him by the failure to consider whether the touch typing or move ‘n sit cushion was in place; and
• pay Miss X £400 in acknowledgement of the distress caused to her by the delays in dealing with her complaint about the lack of provision and failure to respond to her emails.
49. Within two months the Council has agreed to:
• remind relevant staff about the importance of responding to communication in a timely manner; and
• remind relevant staff of its duty to quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman