The Ombudsman's final decision
Summary: Mrs X complained on behalf of her son Y that the Council failed to secure the special educational provision in his Education, Health and Care Plan, failed to comply with the legal timescales for reviewing his plan, and had poor communication. We find the Council at fault for not securing all of Y’s special educational provision, not completing an annual review in time, and for poor communication. This caused significant injustice of missed educational provision, frustration, uncertainty and time and trouble. The Council has offered a symbolic payment and service improvements that remedy the injustice.
The complaint
Mrs X complains on behalf of her son Y that the Council: Failed to secure the special educational provision listed in his Education, Health and Care (EHC) Plan.
Failed to follow the legal timescales for reviewing his EHC Plan.
Had very poor communication when she raised concerns.
She complains the Council’s failings have significantly damaged Y’s education and social progress.
The Ombudsman’s role and powers
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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) 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(1), as amended)
What I have and have not investigated I have investigated from March 2024 until May 2025.
I have not investigated before March 2024 because matters before then happened more than 12 months before Mrs X complained to us. Therefore I cannot investigate before that date for the reason explained in paragraph 4.
I have not investigated after May 2025 because the Council decided not to amend Y’s EHC Plan on that date, and Mrs X could have appealed that decision to the Tribunal. I have decided the home tuition element of the special educational provision Mrs X wanted was not clearly detailed in Y's EHC Plan. Where wording in an EHC Plan is vague it is not for us to speculate about what may have been intended, the remedy is to appeal to the Tribunal to re-write the Plan and properly specify and quantify provision. I have decided it is reasonable to have expected Mrs X to have appealed to the Tribunal to properly specify and quantify the provision in May 2025. I therefore cannot investigate beyond that date for the reason explained in paragraph 6.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Law and Guidance 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.
The EHC Plan is set out in sections which include: Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placement.
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) 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. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain 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) 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.
There is a right of appeal to the Tribunal against a council’s decision not to amend an EHC Plan following a review or reassessment.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
What happened This is a summary of key events. It is not a detailed chronology of everything that happened.
Background
Y is a young person that has had an EHC Plan for several years. In 2023, following an appeal, the Tribunal ordered changes to his EHC Plan. The Tribunal decision shows Y hoped to attend a college in the future, and the Council would provide an interim education package in the meantime.
The Council issued final amended EHC Plans in April and June that year. The Council arranged a package of home tuition and therapeutic provision for Y.
Period of investigation Mrs X said the Council did not reply to emails she and Y’s therapists sent in the summer of 2024. She said it did not take adequate steps to ensure Y’s educational package properly restarted in September 2024.
In September Mrs X made a stage one complaint to the Council. She complained the Council had stopped providing Y’s home tuition and therapies. It meant Y was not receiving the special educational provision In his EHC Plan. She asked the Council to provide Y education in accordance with his EHC Plan.
In November the Council provided Mrs X its stage one response. It said Y’s tuition package had ended because it needed to hold an annual review of his EHC Plan.
In December the Council started the annual review process.
In March 2025 Mrs X made a stage two complaint to the Council. She complained it was still not providing the special educational provision in Y’s EHC Plan. She also complained it had not completed the annual review it had started in December 2024.
In April the Council provided Mrs X its stage 2 response. It acknowledged there had been unacceptable delays in progressing Y’s education, and in delivering the full provision in his EHC Plan. It also recognised poor communication and its failure to complete key actions in a timely manner. It upheld Mrs X’s complaint and apologised.
In May Y spent time visiting a college. The visits were to allow the college to decide whether it thought it could offer Y a place to start in September. It decided it could not do so because it could not meet Y’s needs.
Mrs X thanked the college for its consideration. She explained the lack of educational provision had impacted Y and left him unable to transition to the college environment.
At the end of May the Council sent Mrs X its annual review decision letter. It decided to maintain Y’s EHC Plan without changes. It explained Mrs X could appeal to the Tribunal if she disagreed with its decision.
The Council’s response to my enquiries The Council provided a detailed response to my enquiries about Mrs X’s complaint. I summarise its response below.
The Council explained there were general record keeping and case management shortcomings during the period. It recognised that maintaining accurate complete records is a fundamental requirement. It described work it is doing to implement a case management system to improve the issues.
The Council acknowledged the record keeping and case management issues were relevant factors in assessing its fault, the injustice to Y and Mrs X, and an appropriate remedy, in this case.
Regarding Y’s special educational provision, the Council provided evidence it secured periods of home tuition and therapies.
However, It acknowledged the evidence showed periods during which it did not secure the special educational provision Y was entitled to. It said there was evidence home tuition was inconsistent, with significant periods when it was reduced or not delivered. It also said there was evidence of missing therapeutic provision.
Regarding annual reviews, the Council provided evidence it carried out annual review planning activity.
However, it accepted the records also showed delays in completing annual review processes. This included uncertainty in transition planning and arranging educational placements.
Regarding its communication, the Council accepted there were periods its general communication was not adequate.
The Council acknowledged the issues may have caused injustice to Y in the form of lost educational provision. It also recognised the injustice to Mrs X of considerable time, trouble, frustration and uncertainty.
The Council explained it had considered our Guidance on Remedies. It suggested it offer the following remedies for the injustice: A payment of £9,000 to Y to remedy the injustice of lost and disrupted educational and therapy provision. This included the cumulative impact of the delays in progressing to a longer term educational arrangement.
A payment of £1,000 to Mrs X to remedy the significant frustration, uncertainty and time and trouble involved in repeatedly pursuing provision, annual reviews and transition planning.
The Council also undertook to complete outstanding annual review actions from a recent annual review.
It proposed service improvements. These are identifying and implementing lessons learnt from this case, and reminding relevant officers of the importance of clear record keeping, particularly where provision is secured outside a formal education setting.
Analysis and findings I address each part of Mrs X’s complaint below.
Failure to secure the special educational provision listed in Y’s Education, Health and Care Plan.
The Tribunal decision issued in 2023 shows the Tribunal, Council and Mrs X agreed Y should receive an interim package of education. This was to enable him to transition to an educational placement. The package took the form of home tuition and additional specific therapies.
On the basis of this evidence, I find the Council’s duty to make sure Y received the special educational provision meant it should have provided an interim education package that secured everything detailed in Section F of Y’s EHC Plan. It should have maintained this package until Y secured a placement in an educational setting that could meet his needs.
I find the evidence shows the Council did not maintain the education package for Y throughout the period I investigated. I make this finding based on Mrs X’s account, and the Council’s response and records. It therefore did not secure all of Y’s special educational provision detailed in Section F of his EHC Plan. This was fault.
The fault caused significant injustice to Y in the form of missed special educational provision. This caused consequential injustice of distress to Y and Mrs X.
Failure to follow the legal timescales for reviewing his EHC Plan.
The Council should have completed an annual review of Y’s EHC Plan at least every 12 months.
Records show It had not completed an annual review for some time before the start of the period I investigated in March 2024. It first completed an annual review after that date in May 2025. This was when it issued its decision letter to maintain Y’s EHC Plan without changes.
The evidence therefore shows the Council did not complete an annual review of Y’s EHC Plan at least every 12 months. This was fault. It caused injustice to Y and Mrs X in the form of frustration, uncertainty and delayed appeal rights.
Poor communication The evidence shows the Council did not appropriately respond to Mrs X’s concerns. It had delayed responses and failed to resolve the issues she identified.
On this basis I find it did not have an acceptable standard of communication with Mrs X. This was fault. It caused Mrs X injustice in the form of frustration, uncertainty and time and trouble.
Remedies for the injustice I have considered our Guidance on Remedies and the Council’s suggested payments and service improvements.
I am satisfied the Council’s suggested payments remedy the personal injustice to Y and Mrs X. I recommend Mrs X helps Y to use his payment to benefit his educational and personal development.
I am also satisfied the service improvements adequately prevent similar injustice in the future. I therefore make no formal recommendations for further action.
Decision The Council has accepted it was at fault for not securing all of Y’s special educational provision, delays in completing an annual review and for poor communication, causing injustice to Y and Mrs X. It has already offered symbolic payments to Y and Mrs X to remedy the injustice and proposed service improvements. I uphold Mrs X’s complaint and have completed my investigation.
Investigator's decision on behalf of the Ombudsman