Summary: Miss X complains that the Council failed to provide suitable alternative education for her son when he was out of school, failed to provide her with support or information about support, and failed to review her son’s Education, Health and Care (EHC) plan. Miss X says this meant her son was out of education for a year. She says it has also caused distress, inconvenience, and uncertainty of knowing when her son would get a school placement, and cost her time and trouble. The Ombudsman finds fault with the Council for failing to provide suitable education and failing to issue an amended EHC plan when it should have done. This caused Miss X and her son injustice. The Council will apologise to Miss X and make a payment to reflect the injustice caused. The Ombudsman does not uphold the other part of Miss X’s complaint. This is because there is no fault.

The complaint

1. The complainant, who I refer to as Miss X, complains about the way the Council handled her son’s special educational needs. She complains that the Council:
1. failed to provide suitable alternative education while her son was out of school for a year;
2. failed to provide her with support or information about available support; and,
3. failed to review her son’s Education, Health and Care plan.
2. Miss X says this meant her son was out of education for a year. She says this has meant she has had to pay for travel, childcare and professional advice. She says it has impacted on her and her family’s mental health. She says it has also caused distress, inconvenience, and uncertainty of knowing when her son would get a school placement, and cost her time and trouble.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
10. 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

11. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and additional information before I reached a final decision.
12. I considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

What should have happened

Education, Health and Care (EHC) plans

13. Under the Children and Families Act 2014, when an Education, Health and Care assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
14. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
15. The EHC plan names the school or institution that the child or young person will attend.
16. A local authority must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). It must then review the plan every 12 months after this as a minimum.
17. The Code says if, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as quickly as possible.
18. A council must do a reassessment of the child’s EHC plan if a parent requests it. The Code says that the maximum time to reassess an EHC plan is 14 weeks from the decision to reassess to issuing the final EHC plan. However, a council must aim to complete the process as soon as practicable.
19. EHC plans can be amended for certain reasons, including where there is a change to the child’s circumstances. To amend an EHC plan, a council must send the parent a notice detailing the proposed amendments. The parent then must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting that a particular school is named.
20. After this, a council must issue an amended EHC plan as quickly as possible, and within eight weeks of the amendment notice.
21. A child’s parent can appeal to the first-tier tribunal to challenge the content of an EHC plan. This includes appealing against the school or other institution named in the plan. The right to appeal is triggered once the council has issued the final EHC plan.

What happened

22. Miss X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan. B attended a mainstream primary school, which was named in his EHC plan (issued in May 2017).
23. In May 2018, the Council and school reviewed B’s EHC plan. It was agreed that B needed to be educated in a specialist school. At the end of summer term, B left the mainstream school.
24. The Council looked for alternative schools but there were no available places. B remained on roll at the mainstream school.
25. In August, the Council arranged Access to Education (referred to as A2E) for B. A2E is a service for children who cannot attend school for exceptional reasons. This was for two-hour sessions three times a week, starting in October.
26. In October, B started at A2E. He attended eight sessions and had 15 unauthorised absences before he stopped attending altogether.
27. Also in October, Miss X complained to the Council that it had failed to provide a school for B and that the recent provision (A2E) was not suitable. Miss X also asked why B was still on roll at the mainstream school and why the Council allowed B to leave school without another school placement to move on to.
28. In November, the Council sent Miss X its complaint response. The Council said it initially consulted with a range of mainstream schools to see if they could meet B’s needs, but they were not able to offer B a place. It said since then it had consulted with both specialist and mainstream schools. It said it offered Miss X an assessment for a school in October, but she felt it was too far for her to travel so the assessment did not go ahead. It said it understood Miss X’s reasoning.
29. The Council said it was consulting with other settings that could meet B’s needs, including a setting that Miss X told the Council she preferred.
30. Miss X responded, repeating the points she made in her complaint. She asked for a reassessment of B’s needs and for the Council to review his EHC plan.
31. In December, the Council sent its stage two response to Miss X’s complaint. It said one school was arranging an assessment, and another school had held initial talks with Miss X, although she had concerns about how far away it was.
32. The Council accepted that it did not issue an amended EHC plan, which was an “inadvertent oversight”. It said it was reviewing B’s EHC plan and aimed to put in place the requested amendments as a priority.
33. The Council said it recognised it could have explored in more detail whether B’s mainstream school could have supported him with extra resources. It said this might have helped B to stay at that school while the Council found an alternative setting. The Council apologised for the impact this had on B and the family.
34. The Council said it would hold a meeting to discuss B’s needs and find a way forward. It said in the meantime it had found a tutor as an alternative to A2E. It said although a full-time education in a setting that could meet B’s needs was the priority, the tuition would be for two hours a day in three core subjects (English, maths, and science).
35. The Council agreed to reassess B. It gave Miss X contact details for an information, advice and support service. It said it had already shared information with her about accessing a range of services that could support her. It also gave Miss X the phone number for a senior social worker who she could contact directly.
36. In January 2019, a tutor began working with B one-to-one. She worked with B for a week. There was an incident between B and the tutor which resulted in an argument between Miss X and the tutor. The tutor declined to return.
37. Also in January, the Council sent Miss X a draft amended EHC plan.
38. In February, Miss X met with the Council. After this, the Council made a referral to a different home-tutoring service. Shortly after, this service assessed B.
39. In March, the Council issued its final amended EHC plan.
40. The home-tutoring service found two tutors who began working with B on a two-to-one basis in the first week of June. The delay was because the service had difficulty finding two appropriate tutors to work with B.
41. In mid-June, Miss X appealed the amended plan at tribunal.
42. In September, B started at a new school.

Analysis

Failure to provide suitable alternative education

43. Miss X complains that the Council failed to provide suitable alternative education while her son was out of school for a year (part a of the complaint). She refers to the academic year from September 2018 to summer 2019.
44. Miss X had the right to appeal B’s final amended EHC plan in March 2019. She exercised this right in mid-June. The Ombudsman has discretion to consider complaints during the time between an appeal right being triggered and an appeal being submitted. I consider there are good reasons to exercise this discretion and look at the Council’s provision of education until Miss X submitted her appealed.
45. In May 2018, the Council agreed with the school that B needed a specialist school placement. This decision was agreed internally at the Council at the beginning of June. This is a significant change in circumstances which should have led the Council to amending B’s EHC plan.
46. The Code of Practice says that councils should send the parent a notice detailing the proposed amendments to the EHC plan. The parent must then be given at least 15 calendar days to comment and make representations on proposed changes, including requesting a particular school is named. After this, a council must issue the amended EHC plan as quickly as possible, and within eight weeks of the amendment notice.
47. The Council accepts that it failed to send an amended EHC plan while it sought a placement for B at a specialist school. This is fault.
48. If the Council had acted to amend the EHC plan in June, when the decision was taken to move B to a specialist school, the process to amend the plan should have been completed by the end of August, before term started in September. This would have meant B had an EHC plan naming the school or naming what kind of alternative education he would receive. Miss X then could have accepted that educational provision or appealed the plan at tribunal.
49. I find that B missed out on the full-time education he had a right to receive by virtue of his EHC plan from the start of term in September 2018 to mid-June 2019, when Miss X appealed the amended EHC plan. However, I find this is somewhat mitigated because the Council did put in place some alternative education.
50. I consider that the Council failed to provide suitable alternative education for four and a half months (September 2018, and February 2019 to June 2019, excluding school holidays and half terms). This caused B injustice in that he missed out on education and the social aspect of being in school with other children.
51. Further, I find that this caused Miss X injustice because it caused distress which could have been avoided, and because she spent considerable time and trouble challenging the Council.
52. The Council acknowledges there was an unacceptable delay between its referral to a different home tutoring company in February, and two suitable tutors starting to work with B in June. The Council says the initial tutor stopping working with B in January was outside its control, and it tried its best to secure an alternative provider as soon as possible. It says it was important to identify appropriate tutors B could work with to enable him to access education while mitigating the risk of further distress. I recognise that the Council worked hard to achieve the right outcome for B. It does not, however, change the fact that B was left without suitable education.
53. I note that the Council says it could not find a suitable placement over that period of time. In cases such as this, councils can approach the Department for Education who can direct a school to take a child. There is no evidence the Council did this.

Failure to provide support or information about support

54. Miss X complains that the Council failed to provide her with support or information about available support (part b of the complaint).
55. Miss X asked for respite support in November 2018. In December 2018, three weeks later, the Council’s stage two complaint response gave Miss X details of a support service and contact details for a senior social worker. This also said that the Council had previously given Miss X information about accessing a range of services that could support her.
56. The Council assessed Miss X for respite support in January 2019. It says Miss X did not meet the eligibility criteria for support. Miss X says the Council gave her information in September 2018 about short breaks, activities, and play schemes for children. She says the Council should have given her information about support for her, rather than just for the children or for the wider family.
57. I find that the Council provided Miss X information about support. It assessed her and found she was not eligible. I do not agree with Miss X that the Council failed to provide her with support or information about support. I find the Council gave Miss X appropriate information about support. For this reason, I do not find the Council at fault.
58. Miss X says a social worker told her he would ask the ‘social care fund’ to reimburse Miss X’s childcare costs that she had paid while B was not in education. She says she did not hear anything more from the Council about this.
59. The Council says the social worker discussed childcare costs with Miss X but told her it would not fund these costs because they were during school hours. Miss X says this discussion did not happen. The Council says it has no fund called the ‘social care fund’.
60. There is a lack of evidence. I am not persuaded that the social worker failed to tell Miss X that her childcare costs would not be reimbursed. There is insufficient evidence for me to find fault here.

Failure to review the Education, Health and Care plan

61. Miss X complains that the Council failed to review her son’s Education, Health and Care (EHC) plan (part c of the complaint).
62. B’s final EHC plan was issued on 15 May 2017. The Council held the annual review on 1 May 2018. This is within 12 months, which is in line with the Regulations.
63. At this review, however, it was agreed that the educational provision in B’s EHC plan no longer met his needs and he needed a specialist placement. The Council should have issued an amended EHC plan, which it accepts it did not do. As I have said above, I find the Council at fault for failing to issue an amended EHC plan. I do not intend to repeat my findings here.
64. This fault caused Miss X injustice because it delayed her right to appeal the EHC plan. It also caused Miss X uncertainty.
65. In November 2018, Miss X asked the Council to reassess B. The Council sent the final amended EHC plan in March 2019, 18 weeks later. The Regulations say the maximum time this should take is 14 weeks. I do not find the additional four weeks are significant enough to constitute fault.

Agreed action

66. Within four weeks of this decision, the Council has agreed to apologise to Miss X and B in writing for the impact of lost education and for the injustice caused by the delays in amending B’s Education, Health and Care plan.
67. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £1300. This is made up as follows:
• £900 to acknowledge the impact on B of lost education (£200 per month for four and a half months). This payment is to be used for educational purposes.
• £400 to recognise Miss X’s lost opportunity to bring her appeal to the tribunal sooner, the uncertainty this caused, the time and trouble she spent challenging the Council, and the avoidable distress.
68. These figures are in line with the Ombudsman’s published guidance on remedies. I have taken into account the education the Council provided.
69. Within three months of this decision, the Council has agreed to share this decision with relevant staff to ensure that learning is taken from this complaint.
70. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

71. I have completed my investigation. I uphold parts a and c of Miss X’s complaint because I find fault causing Miss X and B injustice. The Council has agreed to take action to remedy the injustice.
72. I do not uphold part b of this complaint because there is no fault

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Investigator's decision on behalf of the Ombudsman