Summary: The Council failed to ensure Y received the full-time specialist educational provision in his Education, Health and Care Plan which caused Y a loss of educational provision and his mother Ms X avoidable distress and inconvenience. The Council also failed to complete the annual review in June 2023 and failed to issue an amended Plan. This caused Ms X a delay in appeal rights and avoidable distress. The Council will apologise, issue Y’s final amended Plan, ensure Y receives all the educational provision in the Plan and make payments to remedy the injustice.

The complaint

1. Mrs X complained the Council failed to ensure her child Y received the full-time educational provision on his Education Health and Care Plan. She said this caused her avoidable distress, the avoidable inconvenience of having to tailor her working hours around periods when Y should have been at school and meant he missed out on education.

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The Ombudsman’s role and powers

2. 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)
3. Ms X complained to us in October 2024. Matters before October 2023 are late, but I investigated them because Ms X has a serious long-term health condition and periods of hospitalisation. This is a good reason for her delay complaining to us.
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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How I considered this complaint

6. I considered evidence provided by the parties as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

8. 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 including Section F (special educational provision) and I (educational placement). We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

9. 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)  
10. 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. 

11. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
13. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)

What happened

2023

14. Y is autistic and has had an EHC Plan since September 2021. This Plan was maintained by a different local authority when Y lived there. Section I named a mainstream primary school as the educational placement. Section F of that Plan said Y required 25 hours a week of one-to-one support from a highly skilled teaching assistant (TA) with a learning programme put in place by the SENDCO. Provision included speech and language and social support in a small group.
15. The family moved to Essex in April 2023. The Council directed School A, a mainstream primary school, to admit Y. He started attending in June 2023 on a part-time timetable of two hours a day.
16. An annual review meeting took place in June 2023. An officer from the Council’s inclusion team attended. School A said Y required a special school and it was working with the Council to ensure his needs were met in a special school moving forward. School A said the placement was not appropriate. The inclusion officer made some recommendations for changes to parts of the Plan; her view was Section F remained appropriate. Ms X gave her parental preferences for placements in two maintained special schools.
17. The Council issued a draft amended EHC Plan on 1 November.

2024

18. The records suggest Y stopped attending School A at the end of February 2024, but his 10 hours of individual tuition at home remained in place.
19. The Council’s resource panel (a group of managers) considered Y’s case in March. The panel said the case officer needed to reconsult with the two maintained special schools already consulted. The case officer had also asked the resource panel to agree additional funding for School A to support Y. There is no record of the panel’s consideration of the case officer’s request.
20. Ms X complained to the Council, also in March. She said:
• Y had been on a reduced timetable of 10 hours a week since he started at School A in June 2023
• In the middle of July, the Council agreed 10 hours of home tuition
• She had no choice but to agree to home tuition because School A was adamant it could not support him for more than 10 hours a week
• Between July 2023 and March 2024, the Council had consulted with two special schools which had both refused Y a place
• She had to reduce her work hours as she worked remotely and she had the inconvenience of dropping off and collecting two children at different times.
• Since the end of February 2024, Y had not attended School A at all.
21. The resource panel considered Y’s case again at the start of May. The record said, ‘Band 10’ funding had been agreed for School A for the rest of the term and consultations for the maintained special schools needed to be ‘moved forward.’
22. The Council responded Ms X’s complaint (also in May) saying:
• It was sorry for the delay responding to her
• A change of placement was requested at the annual review in June 2023
• All the special schools consulted refused
• The Council issued a draft amended Plan in November
• She responded with her preferred school
• The Council consulted with School A and her preference which declined a place
• The Council’s resource panel advised a further two consultations and was awaiting replies
• The Council would liaise with School A to establish whether the Council could provide further support to it.
23. The complex case panel (another group of managers) considered Y’s case a week later. The panel doesn’t appear to have been asked to make any decisions about school placements. The record says ‘Band 10 agreed – school shared costed provision. Commissioning 2:1 support and additional support in school’
24. Ms X complained to us in October 2024.

Events since the complaint to the LGSCO

25. An annual review meeting took place in December 2024. The report says Y has not been in School A’s building for a year and needs a placement in a special school. It goes on to say ‘he has been educated at home by a tutor sourced by school’ for two hours a day. The report recommended updates to the EHC Plan and consultations with five special schools.
26. At the time of writing, the Council has not issued a final EHC Plan for Y. The most recent plan is the previous council’s Plan of September 2021. Ms X told me Y hasn’t attended School A since February 2024 and is receiving 10 hours a week of tuition at home.

Findings

27. The Council is at fault because:
• It did not complete Y’s annual review within three months of his move to Essex. The Council should have issued an amendment notice by the end of April 2023. It did not do so until November; a delay of six months which was not in line with the Regulations or the SEND Code of Practice set out in paragraph 13.
• The Council should have issued a final amended Plan within 12 weeks of the amendment notice so by the end of July 2023 as I have set out in paragraph 12. There is still no final Plan and so the delay is currently at nineteen months and is continuing.
• Y has not received the full-time provision in Section F of his existing EHC Plan (which is the Plan issued by the previous authority in 2021). This is not in line with the duty in Section 42 of the Children and Families Act 2014. The Council was aware of Y’s non-attendance at school by March 2024 at the latest because Ms X said in her complaint to it. There is no evidence the Council took action to ensure Y was receiving all the provision on his Plan. One to one tuition of ten hours did not secure the group provision in Section F.
• There were long periods of drift in 2023 and 2024 with no potential special schools identified or consulted. Panel submissions appear to have been ineffective in terms of moving the case on or ensuring compliance with the law and guidance set out in this statement. There was a failure to identify and secure a placement for Y.
28. The fault caused Y a loss of special educational provision and avoidable distress and inconvenience to Ms X. It also delayed her rights of appeal to the SEND Tribunal. Y has had part-time tuition at home but has not received any peer contact or group education and socialisation expected in a full-time school setting.

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Agreed Action

29. Within one month of my final decision the Council will:
• Without further delay, issue Y’s final amended EHC Plan
• Ensure Y is receiving all the special educational provision in Section F of his Plan
• Apologise. 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.
• Make a payment of £500 to reflect Ms X’s avoidable inconvenience, distress and delay in appeal rights
• Make a payment of £3600 to reflect the loss of full-time educational provision between February 2024 and February 2025
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice. The Council has agreed to make payments and apologise to remedy the injustice. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman