Summary: Mrs C says the Council was at fault for errors around her son’s education, health and care plan and, having commissioned an investigation into the events, for failing to act on the investigation’s findings. She says this caused injustice to her son who lost education and to her family as they suffered distress and financial loss. The independent investigation found the Council to have been at fault. The Ombudsman agrees with the independent investigation. The Council has agreed to pay a sum in recognition of the injustice caused.

The complaint

1. The complainant, who I have called Mrs C, says the Council was at fault for failures connected to her son, X’s, education. She says the Council:
1. Failed to provide the education set out in X’s education, health and care plan (EHCP);
2. Failed to review the EHCP in a timely fashion: The review took 14 months from July 2018 to September 2019 before the revised EHCP was ready which delayed her right of appeal;
3. Failed to provide X with any education between September 2018 and September 2019;
4. Responded inadequately to her complaints and requests causing much of this delay which continued until she contacted her MP;
5. Agreed a package in recognition of its fault in March 2019 before later reneging on this agreement; and
6. Failed to learn from its failures and problems continue with X’s education.
2. Mrs C says this caused her family injustice because:
1. X’s mental health has suffered;
2. X has missed out on education;
3. The entire family suffered stress and anxiety and had to take a great deal of time attempting to remedy the situation.
4. Mrs C has had to leave work to enable her to provide transport for X to his new school.

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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 have called 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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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.
7. 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)

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How I considered this complaint

8. I spoke to Mrs C. Having done so, I wrote an enquiry letter to the Council requesting further information. I then considered the information gathered alongside any relevant law and guidance.
9. Mr and Mrs C 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

What should happen

Councils’ duties to provide education

10. Councils, as education authorities, must ensure that there is sufficient primary and secondary education in their areas to provide appropriate education for all pupils. They may arrange for pupils to be educated at independent schools. (Education Act 1996, ss.1 and 17)
11. Councils must provide suitable education for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. (Education Act 1996, s.19)
12. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:
• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
13. The guidance says, if a child receives one-to-one provision, the hours of
    face-to-face provision could be fewer than provided in full-time education, as the provision is more concentrated.
14. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education (Statutory Guidance ‘Children Missing Education’).
15. In the Focus Report, we made six recommendations based on examples of good practice seen. We said councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Local authorities should:

• Ensure that the education the child receives is of good quality, preventing them slipping behind their peers and allowing them to reintegrate back into school as soon as possible.
• When reintegration into a school is anticipated, work with the school to plan for consistent provision during and after the period of education outside school. (Ensuring a good education for children who cannot attend school because of health needs. Statutory guidance for local authorities. January 2013)

Education, Health and Care Plans (EHCPs)

16. The responsibility for providing support to children and young people with special educational needs (SEN) is shared between Councils and education settings.
17. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from the Council. This level of support is known as SEN Support. Children with more complex needs might need an educational health and care plan (‘EHCP’). Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision in an EHCP is made available.
18. The EHCP is split into sections. The educational provision the child must receive is set out in section F. The school to be attended is named in section I. If a child receives an EHCP, the Council has a duty to ensure the child receives the education specified in section F.
19. Where a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan and amend it in accordance where appropriate, to ensure that the young person continues to receive education or training. (s.29, SEN Regulations 2014)
20. Parents’ views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC plan in relation to a child. Local authorities, early years providers and schools should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and will be acted upon. At times, parents, teachers and others may have differing expectations of how a child’s needs are best met. Sometimes these discussions can be challenging but it is in the child’s best interests for a positive dialogue between parents, teachers and others to be maintained, to work through points of difference and establish what action is to be taken. (1.7 The Sen Code of Practice 2015), (“The Code”)
21. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.

Annual review

22. EHCPs must be reviewed at least annually. A review meeting must be held each year. The review must take account of the views, wishes and feelings of the child and their parents. Within four weeks of the date of the review meeting, a council must decide what action to take if any, and notify the parents of the decision and of their right of appeal against it. If the EHCP needs amendment, the process should begin without delay. (SEND Code of Practice 9.169)
23. Emergency reviews should also be held when it is clear that an educational placement has broken down.
24. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. (SEND Code of Practice 9.196)
25. Where a child does not attend a school, Councils must still carry out EHCP reviews. The child, their parent, a local authority SEN officer, a health service representative and a local authority social care representative must all be invited and given two weeks’ notice of the meeting along with information to be considered at the meeting. The meeting must focus on the child’s progress towards meeting the outcomes set out in the EHCP. The local authority must prepare a report for the meeting which must be sent out to everyone invited two weeks prior to the meeting. It must include the authority’s recommendations. If the EHCP needs to be amended it must be amended without delay. If the authority decides not to amend, it must inform the family without delay and inform them of their right of appeal. SEND Code of Practice 9.177)

What happened

26. Mr and Mrs C adopted X nine years ago when he was seven years old. He had a traumatic early life and suffers from post-traumatic stress disorder. Until 2016-17, X attended a mainstream school. Mr and Mrs C became concerned that X was unable to cope in this environment. They therefore asked the Council to fund education for him at a specialist school, (‘the School’).
27. The Council agreed and X began attending in the 2017-18 academic year. Mr and Mrs C had several concerns with the provision given at the School throughout the first half of the year which resulted in them making a formal complaint to the School in May 2018.
28. At the same time, Mr and Mrs C were keen to ensure that X received therapy for his attachment issues and PTSD-related anxiety. This was provided by an adoption agency. Mr and Mrs C were keen to ensure that this provision was provided at School by the School as they considered it to be vital to his education. The local authority refused to provide it.
29. Mrs C says X’s EHCP annual review meeting was held in mid-July 2018. The Independent investigation report says it took place in mid-August 2018. In any event, it was in the summer holidays in 2018. By this time, Mr and Mrs C were concerned that the School did not meet X’s needs. They say it did not provide adequate staffing levels to keep X safe. They say that, because of his PTSD, this meant that X could not take in the education on offer. They asked the Council to remove the School as the named school on X’s EHCP.
30. At the beginning of the 2018/19 academic year, the relationship between the School and Mr and Mrs C deteriorated further. In early September 2018, X absconded from school. Mr and Mrs C say that this incident was both caused by and increased X’s anxiety. As a result, they say, he was unable to return to school and did not do so.
31. Initially, the School recorded X as absent through sickness. This status continued for over two months until mid-November when it began to record his absence as unauthorised. During this period, Mr and Mrs C contacted the Council and asked for X to be moved frequently.
32. Members of the School staff and the Council education department met X and Mr and Mrs C in October 2018. The School offered to provide some provision, seemingly an hour a week each of English and maths either at the riding centre or at the family home. It also offered to provide him with a computer.
33. A representative of the school said that the meeting had been friendly but, a week later, Mr and Mrs C said that they felt they had been ‘closed down’ at the meeting and felt that the offer of a tutor would not work. They said the tutor could not cope and homework would increase X’s anxiety. They also said an hour’s teaching a week would be insufficient to meet the requirement of the EHCP which specified among other things, full time education, a highly structured and personalised curriculum, 1-1 support an empathic approach, consistent routines within class.
34. Mr and Mrs C complained to the Council about the failures in X’s education. Mr C contacted the Council to ask about progress with his complaint two weeks later. He was told that it had not been logged. After Mr C’s enquiry, rather than deal with the complaint itself, the Council forwarded the complaint to the School. The Council’s later stage two investigation found the Council sent the complaint to a member of staff who had left the School. No one checked the mailbox and the complaint was never addressed.
35. During the next few months, the Council made efforts to improve the relations between Mr and Mrs C and the School. It appears the process was hampered by a high number of Council staff and contractors leaving their positions. The process was also hampered by the fact that the School did not send representatives to meetings. Throughout, Mr and Mrs C maintained that the School could not meet X’s needs.
36. Over this period, Mr and Mrs C made various requests for financial assistance to pay for education and therapeutic activities but the Council seems not to have processed these requests. In January 2019 Mr and Mrs C asked the Council for assistance with the education they had been purchasing privately.
37. Council records show that an officer said they could not approve that assistance because ‘the current plan was not up to standard and did not include the outcomes from the July Annual Review and or the Recent Emergency Professionals Meeting’.
38. In December 2018, the owner of the School told the Council and Mr and Mrs C that it would be closing. The parents asked the owner to agree to allow the School’s name to be removed from the EHCP. The owner refused. He said that his company (‘the Company’) could continue to provide X’s education at a sister school which was about eight miles away. Mr and Mrs C said that their relationship with the Company had broken down irretrievably There are several recognitions of this fact in Council records.
39. There is no evidence of any EHCP review process taking place during this period. The original annual review seems to have stalled and the Council did not initiate an emergency review either because X’s placement had broken down or because the School had announced it would be closing.
40. In February 2019, the family made a second complaint the Council. They complained that:
1. The EHCP had not been amended since the July 2018 review;
2. X had not received the provision set out in the EHCP since September 2018; and
3. The Council had failed to deal with their first complaint.
41. The leader of the SEN-Pre-16 team met with Mr and Mrs C and then replied to the complaint at the end of March 2019. She apologised for the delay and said she had appointed an officer to deal with the EHCP matter and said she hoped that the complaint was now resolved.
42. Mr and Mrs C were not satisfied with this response. The EHCP review process had still not been completed and the complaint points they had raised had not been dealt with. The Council escalated the complaint to stage two of its complaints procedure in April 2019. It appointed an independent investigator to carry out an investigation.
43. In late May 2019, Mr and Mrs C wrote to a senior officer and asked the Council to fund alternative education provision for X while he had no school to attend. They asked for £30 per week for one English lesson per week, £25 per week for one maths lesson per week and £25 per week for one riding lesson per week. They also requested a laptop. This request was refused.
44. In May 2019, the officer told Mr and Mrs C that the Company said it could provide X’s education at its other site and the Council had commissioned it to do so. However, the Company wrote to the Council in June 2019 and said they now could not do so without a revised EHCP.
45. In July 2019, the Council issued a revised EHCP which named the Company’s other school as the provider. A Council officer emailed Mr and Mrs C to say that the Company would be in touch to arrange for X’s reintegration into school.
46. The parents appealed the revised EHCP to the Tribunal. They appealed against the provision set out in Part F of the plan and against the naming of the School as the education provider in Part I. Mr and Mrs C say their relationship with the School had broken down irretrievably. They did not consider this relationship would be any better or that they would have any more trust in another school run by the same company.
47. Shortly thereafter, the Council arranged for X to attend another private, specialist school of Mr and Mrs C’s choice in another Council area.
48. The Stage two investigation was completed in early October 2019. It found fault as follows:
1. There had been delay in completing the EHCP review;
2. The Council had made mistakes. It blamed high staff turnover for a loss of continuity.
3. It questioned whether the School had provided the education set out in the EHCP. The School claimed to have done so but had not provided evidence.
4. X had had no provision since September 2018. However, the School had offered a solution which the family had refused.
5. There had been inadequate staffing levels at the School and had put X at risk.
6. The Council had communicated poorly with the family,
7. The Council had failed to deal appropriately with the first complaint.
49. The report recommended that:
1. The Council should apologise;
2. As X had already moved to a new school it made no recommendation about that;
3. The Council should ensure that the EHCP was properly met in future;
4. The Council should clarify and communicate about therapy that had been recommended for X; and
5. The loss of schooling was such that X could not make it up and he should be held back a year.
50. A month later, Mr and Mrs C met a senior Council officer, Officer O to discuss the stage two report and future educational provision. They say Officer O agreed to send X to a new school about 15 miles from their home. They say he also, ‘promised that both us and our son would receive a written apology, that he would provide compensation of £3000 per year for the next two years to help with X’s additional needs [and] that he would ensure X’s therapeutic package [recommended by a local adoption support agency] was added to his EHCP’.
51. X was moved to the new school. However, Mr and Mrs C say that, Officer O later said he had never agreed to either therapy or compensation. He also said he had not taken notes of the meeting.
52. In February 2020, the Tribunal heard the appeal against the revised EHCP issued in July 2019. The appeal was upheld. The Tribunal found that X’s therapy was a part of his education and must, therefore, be provided by the Council via the education provider. The Judge ordered the Council to provide ‘a bespoke multi-disciplinary therapeutic team including a sensory integration qualified paediatric Occupational therapist and mental health professionals using a trauma informed neuro physiological psychotherapeutic model’.
53. Mr and Mrs C later came to the Ombudsman.

Was there fault causing injustice?

Failure to provide education set out in EHCP

54. After X left school in September 2018, he received no education. The school made a proposal for education in October 2018. While it seems the offer was for an hour or two of education a week, the independent investigation found it was an adequate offer. I do not, therefore find fault with the Council for the fact that X received no education in the autumn term of 2018.
55. However, the Council failed to take actions to solve the stalemate that developed thereafter. The Ombudsman’s Focus Report makes it clear that councils must focus on ensuring that children receive education ‘whatever the reasons for absence’. It sets out a range of good practice options to ensure that this happens. These are set out at paragraph 15 above. There is no evidence that it pursued any of these options. This fault cause injustice both to X who received no education and to Mr and Mrs C who spent time and trouble pursuing the Council.
56. The parents’ refusal of the School’s offer meant that the Council cannot be at fault for the loss of education in the autumn term of 2018. However, the Council should, between the School’s October offer and Christmas at the very latest, have taken steps, whether be finding an acceptable alternative or by prosecuting Mr and Mrs C for their refusal to send X to school, to ensure X received education. Its failure to do either meant that X received no education at all. This was fault causing injustice.

Failure to review the EHCP in a timely fashion

57. The Council was at fault for its failure to provide the parents with an appealable decision after the review meeting in the summer of 2018. If it had decided, as it seems from the evidence that it had, that the EHCP should remain unchanged, it should have written to the parents within one month of that meeting informing them of that decision and their right to appeal it. If the Council intended to amend the EHCP, then it should have informed the parents and completed the amendment process within a further two months. In fact, the revised EHCP was not issued until July 2019, a year after the meeting. The parents appealed successfully as soon as they were able to in March 2020. By then, X was already at another school. This was fault but, given that X was out of school in any event, it is not clear that it caused additional injustice.

Inadequate complaint response

58. The independent investigation criticised the Council for the Council’s failure to deal with Mr and Mrs C’s first complaint made in mid-October 2018. The Council did not log it or respond to it. When Mr C followed up two weeks later, the Council sent the complaint to an unused email inbox at the School and took no action to pursue the matter further. It was only when the parents contacted the Council to ask for a progress report four months later that this failure came to light.
59. Thereafter, the stage two investigation did not begin until April 2019 and was not completed until September 2019. Again, this was unacceptable delay. This was not an investigation under the statutory complaints procedure for children’s complaints but it was similar in format. A stage two investigation under the statutory complaints procedure should take two months. This investigation took six months. The complaints procedure took nearly a year from start to finish. This was fault and it caused injustice because it contributed to the overall delay.

Reneging on promise of compensation

60. Mr and Mrs C say Officer O promised them £3000 a year in compensation for lost education. The Council denies that any such undertaking was given. There is no independent evidence to support either version. Therefore, I can make no finding on this point.

Failure to learn from failures

61. I have seen no evidence that this decision is part of a pattern of similar failure by the Council. I have, though, asked the Council to write to the Ombudsman within three months to explain how it will prevent a recurrence.

Agreed action

62. the Council has agreed that, within two weeks of the date of this decision, it will:
1. Write to X and to Mr and Mrs C and apologise for the fault found in this decision.
2. Pay X a sum of £3600 in recognition of his lost education and emotional distress.
3. Pay Mr and Mrs C £600 in recognition of their distress and the time and trouble taken in dealing with this matter.
63. The Council has agreed that, within two months of the date of this decision, it will reimburse Mr and Mrs C for any money they spent on X’s education between January and July 2019. Mr and Mrs C are to provide evidence of any sums claimed if they can.
64. The Council has agreed that, within three months of the date of this decision, it will write to the Ombudsman and explain how it will prevent a recurrence of the fault found in this decision.

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Final decision

65. I have found the Council to be at fault. The Council has accepted my suggested remedy for the fault found. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman