Summary: We upheld Ms X’s complaint about the Council’s failure to provide suitable education to her son Y, and to secure the provision in his education, health and care plan. The Council accepted it was at fault. To remedy the injustice caused it agreed to apologise and make a payment to Ms X and Y. It also agreed to review other children receiving education other than at school to ensure they are receiving the provision they are entitled to.

The complaint

1. Ms X complains the Council failed to secure the provision in her son, Y’s, education, health and care plan. She says it failed to provide suitable education following his exclusion in November 2018. She is also unhappy the Council delayed issuing a decision to amend Y’s plan following a review and took too long to issue an amended plan. Ms X says the Council has failed to have regard to her and Y’s views, wishes and feelings.
2. Ms X says the Council’s actions resulted in lost provision and distress for Y, and stress and financial costs for her. She would like the Council to reimburse the professional fees she incurred, put provision in place to make up for what Y missed and apologise to the family.

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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. 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)
5. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I considered the complaint made by Ms X and the documents she provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017’
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
• ‘Out of school…out of mind? How councils can do more to give children out of school a good education’ published in 2011 and revised in 2016.
10. Ms X 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

Law and guidance

Education, health and care plans

11. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
12. The Act says councils must have regard to:
• the views, wishes and feelings of children and their parents; and
• the importance of children and their parents taking part as fully as possible in decisions.
13. A child with special educational needs may have an education, health and care (EHC) plan. This 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 education or name a different school. Only the SEND tribunal can do this.
14. Councils must make sure that arrangements named in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
15. The Code says councils must review EHC plans at least annually. The review should focus on the child’s progress towards achieving the outcomes specified in the plan and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
16. When a child does not attend school, the council arranges the review. It must give those invited at least two weeks’ notice of the date of the meeting. It must also seek advice and information about the child from all parties invited, including the child’s parent, and send any advice and information gathered to all those invited at least two weeks before the meeting.
17. The council must prepare and send a report to everyone invited within two weeks of the meeting, setting out recommendations on any amendments required to the plan.
18. Within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend it, or cease to maintain it, and tell the child’s parents. If the council intends to amend the plan, it should start this without delay.
19. When a council proposes to amend a plan, it must send the child’s parents a copy of the existing plan and a notice explaining the proposed amendments. Parents may ask for a meeting with the council to discuss the proposed changes.
20. Councils must give parents at least 15 calendar days to comment and make representations on the proposed changes, including asking for a particular school be named on the plan. Councils must issue an amended final plan within eight weeks of issuing an amendment notice.

Impact of COVID-19 pandemic

21. On 23 March 2020, schools in England closed to most pupils as part of the first national lockdown, apart from the children of key workers and those who were vulnerable including children with EHC plans.
22. In May 2020, during the COVID-19 outbreak, the Secretary of State for Education issued a notice which temporarily changed the duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice expired on 31 July.

Children out of school

23. Section 19 of the Education Act 1996 says councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
24. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear medical reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated.
25. The Ombudsman’s focus report, referred to in paragraph 9, made recommendations to councils about provision for children out of school. This included keeping all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

26. Ms X’s son, Y, has special educational needs. The Council issued his first EHC plan in July 2018. This included support with his social and emotional skills. It also included daily access to a programme devised by an occupational therapist.
27. Y started at School A in September 2018. In November the school excluded Y for a fixed term. It said this would be in place until his EHC plan was reviewed. School A wrote to Ms X saying it would arrange a review of Y’s EHC plan and sent forms for Ms X and Y to record their views. It said it had told the Council Y required a change of placement.
28. In January 2019, the Council began providing home tuition for Y. He received three hours a week, divided into two sessions.
29. School A held a meeting the same month. The Council attended and invited a special school headteacher to contribute to the meeting and discuss options for Y. Ms X believed this meeting to be an annual review of Y’s EHC plan.
30. In February, the Council began consulting with other schools for Y. In March, it increased Y’s home tuition up to 10 hours a week.
31. During the summer term, Y began attending a local mainstream school one day a week at lunchtime to socialise with other pupils. Ms X says this was later reduced to every third week without explanation.
32. In August Ms X complained to the Council about the failure to issue a decision after the meeting in January and to secure the provision in Y’s plan. She also complained about the delay in issuing an amended plan and securing a school place for Y.
33. In response, the Council said it did not consider the meeting in January to have been an annual review meeting and it only attended to dissuade the school from permanently excluding Y. The Council said the meeting did not discuss Y’s progress against the outcomes in his plan, review his provision or set targets. It said while it could direct a school to admit Y, it preferred to secure a placement with the agreement of Ms X and engagement with the school.
34. Ms X was unhappy with the response from the Council and asked it to escalate her complaint to the next stage of its complaint procedure. There is no record of a response from the Council.
35. The Council issued an amended draft plan in August. It issued a further amended draft a week later to take account of Y’s diagnoses of attention deficit hyperactivity disorder and autism and advice from the speech and language service.
36. In September, Ms X asked the Council to name another school, School B, on Y’s plan. The Council issued a final amended plan in October 2019. It did not name a school but said Y needed a “day placement at a specialist school for children with complex needs.”
37. Ms X appealed to the SEND tribunal about the provision and placement named in the plan. The tribunal ended in February 2020. The Council accepted Ms X’s proposed amendments to the provision and agreed to name School B in the plan. The Council should have issued a final amended plan by 2 April but did not issue it until 28 April. This plan included:
• half termly speech and language therapy.
• weekly social skills sessions
• at least eight weeks of therapeutic support
• weekly mentoring sessions
• six sessions direct occupational therapy a term
• twice weekly physical activities
• fine and gross motor programme delivered three times a week.
38. Y began attending School B in September 2020 as a residential pupil.
39. In response to my enquiries the Council said it had reviewed Y’s case file and could not guarantee or evidence that decisions made at the time were always in the best interests of Y and his family. It said:
• It could not explain how it decided the education provision offered to Y between December 2018 and September 2020 was suitable for his age, ability and aptitude.
• It did not consider holding an annual review following Y’s exclusion from school and has no record of an annual review being held in 2019.
• It could not evidence the steps taken to secure the provision in Y’s education, health and care plan in the period Y was out of school.
• It could not explain the delay in amending Y’s EHC plan, or in issuing the final amended plan after the SEND tribunal in February 2020.
• It could not explain why Y could not start at School B until September 2020.
40. The Council accepts Y and Ms X suffered an injustice because of its faults. It says since the events complained about it has carried out a review of its procedures, restructured the SEND service and delivered training to officers.

Analysis

41. As Y was receiving one-to-one tuition, we would not expect the Council to deliver the equivalent of full-time school hours. However, the Council failed to explain how it decided the amount and type of provision Y could engage in when he was excluded from school. Therefore, it is unclear if Y would have been able to engage in more than two hours of education provision a day. The Council’s failure to assess and regularly review the suitability of the education provision offered is fault. It causes uncertainty for Ms X about whether Y should have been offered more provision in this period.
42. The Council should have considered holding an early review for Y following his change in circumstances. It did not do so, and this is fault. On balance of probabilities, if the Council had held an early review, it is likely it would have issued an amended EHC plan for Y sooner than October 2019. Not doing so delayed Ms X being able to appeal to the SEND tribunal about Y’s provision and placement. However, it is not possible to say whether Y would have been able to start at School B sooner than he did. Again, this creates uncertainty for Ms X.
43. There is no evidence Y received any of the provision in his EHC plan while he was out of school between December 2018 and July 2020. The Council was at fault for not securing the provision in Y’s EHC plan. This was a key transition point for Y as he approached his secondary phase of education and the loss of special educational needs provision caused him significant injustice.
44. The lack of evidence of the Council’s decision making and the delays throughout this period are particularly concerning. While I note the steps the Council has taken to improve the service it delivers to children and families, this fault has contributed to Ms X’s distress and frustration at the Council’s actions.

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Agreed action

45. I have considered the Ombudsman’s Guidance on Remedies. We aim to put the person who has suffered an injustice back in the position they would have been in, but for the fault. Where that is not possible, we suggest a financial sum instead to recognise the injustice. This is not compensation. Compensation is a matter for a court and the sums awarded are on a different basis.
46. Within one month of this decision, to remedy the injustice caused, the Council will:
• Apologise to Ms X and Y for the faults identified in this investigation.
• Pay Ms X £1,000 for the significant and prolonged stress, uncertainty and frustration caused by the Council’s actions in this case, and the time and trouble she was put to in pursuing her complaint.
• Pay Ms X £4,425 for Y to recognise the impact of his lost special educational needs provision between December 2018 and July 2020. Ms X can use this money to ensure as far as possible Y catches up on the provision he missed.
47. The Council will also complete the following actions within two months of this decision:
• Remind officers arranging education other than at school that any decision to offer less than full-time hours should be recorded and regularly reviewed.
• Remind officers of the need to ensure key decisions and actions are recorded for each child with an EHC plan or accessing education other than at school.
• Review all children with an EHC plan educated other than at school to ensure they are receiving the provision in their plan.

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Final decision

48. I have completed my investigation with a finding of fault for the reasons set out in this statement. The Council has accepted Y and Ms X suffered an injustice because of its faults and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman