Summary: Miss B complained the Council failed to provide appropriate education to her son, C, and failed to ensure he received the provision set out in his Education, Health and Care Plan from September 2022 to September 2023. Miss B said C missed education and provision and she was distressed and impacted financially by the Councils actions. The Council did not provide C with any education or plan provision until appeal rights to the Tribunal were engaged, did not follow the plan review process and did not consider her complaint. C missed out on education and plan provision for one academic term. Miss B was frustrated and put to time and trouble to complain. The Council has agreed to apologise, make a financial payment and remind staff of the Councils responsibilities.

The complaint

1. Miss B complained the Council failed to provide appropriate education to her son, C, and failed to ensure he received the provision set out in his Education, Health and Care Plan (EHCP) from September 2022 to September 2023. Miss B said C missed education and provision and she was distressed and impacted financially by the Councils actions.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Miss B’s complaint and spoke to her about it on the phone.
6. I considered information provided by Miss B and the Council.
7. Miss B 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

Background information

8. A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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. 
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 EHCP (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 EHCP. 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 EHCP 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 EHCP is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and type of educational placement 

12. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; and
• an amendment to these elements of an EHCP.

13. 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)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
16. The council must arrange for the EHCP 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.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. 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) 
18. Where the council proposes to amend an EHCP, 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.
19. The Special Educational Needs and Disability Code states if a Council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
20. Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
21. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
22. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
23. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
24. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
25. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
26. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

27. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
28. C has complex additional needs. He found accessing school increasingly difficult throughout 2022.
29. C’s school, school D, held a review of his EHCP in April 2022. The review confirmed C was struggling to attend school. The review concluded Miss B would like the Council to name school E and recommended it amend the plan.
30. The Council issued a draft EHCP in June 2022. The Council left section I of the plan blank.
31. C stopped attending school D in September 2022. The Council held a meeting and confirmed school D should fund alternative provision or ask the Council to provide education.
32. The Council started consulting with other schools in October 2022. No other school offered C a place.
33. The Council issued C’s final EHCP in December 2022. The plan named school D in section I. Miss B did not agree with the plan and appealed to the SEND Tribunal.
34. Miss B complained to the Council in June 2023. She complained C had not had any education since September 2022 and issues in the EHCP process.
35. The Council responded to Miss B’s complaint in July 2023. The Council said it would not investigate Miss B’s complaint as she appealed to the SEND Tribunal.
36. Miss B was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss B would like the Council to consider her complaint and financially compensate her.
37. In response to my enquiries the Council accepted the delays in the case but stated the complaint was suitable for the Tribunal appeals process.

My findings

Education and EHCP provision

38. The law, set out in paragraph 21, requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware C was not attending school in September 2022. It should have ensured C received educational provision from this time. The Council has not arranged education for C. The Council was at fault and C missed out on education from September 2022.
39. I have seen no evidence C received any of the provisions named in his EHCP. The Council had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act). This is fault and C missed provision specified in his plan from September 2022.
40. However, as set out in paragraph 13, once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the Tribunal. We can therefore only recommend a remedy for missed education and EHCP provision for one school term from September 2022 until December 2022.
41. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
42. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because 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.

Review process

43. The Council completed an annual review of C’s EHCP in April 2022. The meeting recommended the Council amend C’s plan.
44. Paragraph 17 sets out a Council must tell the child’s parent of its decision to maintain, amend or discontinue the EHCP within four weeks.
45. Paragraph 18 confirmed if a Council intends to make amends to an EHCP, it has to send the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments. Case law confirmed this should be within four weeks. The Council has not informed Miss B of its decision or set out the proposed amendments.
46. The regulations referenced in paragraph 20 confirmed the Council should issue the amended plan within 8 weeks of issuing the notice to amend. The Council issued the plan 32 weeks after the review.
47. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This frustrated Miss B.

Complaint handling

48. The Council did not investigate this complaint. The Council stated Miss B had an active appeal to the SEND Tribunal. While Miss B did appeal to the Tribunal, it does not stop a Council investigating concerns in the complaint until the appeal right was engaged. Not investigating the complaint is fault and this frustrated Miss B.

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Agreed action

49. To remedy the outstanding injustice caused to Miss B and C by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss B for not ensuring C received any education or the provision set out in his plan for one school term, not following guidance when completing the review and not considering her complaint. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Miss B £300 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Miss B £1,200 for not ensuring C received any education or EHCP provision for one school term. This money should be used for C’s benefit.
• Remind relevant staff of the Councils duty to secure education and EHCP provision for children not able to attend school.
• Remind relevant staff of the importance of effective complaint handling.
50. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

51. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss B and C.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman