Summary: Mrs B and Mr C complained the Council failed to ensure their son received an education in line with Education, Health and Care Plan between May 2020 and July 2022. We upheld the complaint, finding their son missed out on a significant amount of education provision as a result. The Council has accepted our findings and at the end of this statement we set out the action it has agreed to take to remedy this injustice.

The complaint

1. I have called the complainants Mrs B and Mr C. Their complaint, made through a representative, concerns the special educational needs provision made for their son, who I will call ‘D’. They complain the Council failed to ensure D received an education in line with his Education, Health and Care Plan (EHCP) between May 2020 and July 2022. This encompasses a time between May 2020 and October 2021 when D’s EHCP named a specific school (‘School X’).
2. Mrs B and Mr C say as a result D has missed a significant amount of education. They have also spent money trying to ensure some of D’s needs were met in this time. The Council has made a payment in recognition of some of D’s lost provision, but Mrs B and Mr C say this does not go far enough.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
5. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. 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(i), as amended)

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How I considered this complaint

9. Before issuing this decision statement I took account of:

• the complaint made on behalf of Mrs B and Mr C by their representative, which included a bundle of information relevant to the case;
• information the Council provided in reply to my written enquiries;
• relevant law, Government guidance and caselaw where referred to below;
• relevant guidance published by the Ombudsman including our guidance on remedies.

10. I gave Mrs B and Mr C’s representative and the Council anopportunity to comment on a draft version of this decision statement. I took account of any comments made, or further evidence provided, in response to the draft statement, before issuing this final version.
11. We have an information sharing agreement with the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under that agreement I will share this decision with Ofsted in advance of publication on our website.

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What I found

General Legal and Administrative Background

12. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
13. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). We can look at complaints that allege the support set out in the EHCP has not been provided, or where there have been delays in the process.
14. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a 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).Recent caselaw has held the proposed amendments must also be sent out within four weeks of the review (see R (L, M & P) v Devon County Council [2022] EWHC 493 (Admin)).
16. A council must give parents opportunity to comment on the proposed amendments, allowing a minimum of 15 days for this. If, following comments from the child’s parent or the young person, the council decides to continue with amendments, it must issue the amended EHCP as soon as practicable. In all cases this should be within eight weeks “of the original amendment notice”. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. There is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP.
18. Where a SEND Tribunal orders a council to change an EHCP it has five weeks to comply.
19. 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.
20. 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)
21. The Council has a complaints procedure, which covers complaints made about its special education needs service. The procedure has three stages, the third of which involves escalation to this office. The Council says that it aims to reply to complaints at both stage one and stage two of its procedure within 20 working days. However, at stage two it may extend this to 65 working days for ‘complex cases’.
22. Each service area is responsible for replying to complaints. But their responses are recorded and monitored by a dedicated customer service team that deals with complaints. The complaint service is expected to monitor to ensure service areas reply to complaints within timescale and issue reminders if they do not. Those reminders are also copied to senior officers when timescales are exceeded.

Key facts

23. I have taken the beginning of the events covered by this complaint to be March 2020. At the time D, who is a child with special educational needs, had an EHCP and was attending a special school I will call ‘School X’. His EHCP was under appeal by Mrs B and Mr C to the SEND tribunal. Mrs B and Mr C were not seeking a change of education setting. But they wanted amendments to D’s EHCP to include provision of occupational therapy (OT), speech and language therapy (SALT) and the use of Applied Behavioural Analysis (ABA) techniques in supporting D.
24. On 15 April 2020 a SEND Tribunal ruled this provision should be made for D. Its order included that the Council should provide D with ABA provision outside of school hours including during school holidays.
25. Around a week later, an annual review of D’s EHCP took place. At that review it was established that D had not been attending school since the start of the COVID-19 pandemic. School X said that its relations with Mrs B and Mr C had irreconcilably broken down. It said it could no longer meet D’s education needs and the Council should find a new placement. The notes of the review say the school took this view because of comments made during the tribunal hearing. The notes record Mrs B being shocked by this statement and she reiterated during the review that she was not looking for D to attend another school.
26. By 20 May 2020 the Council had missed the deadline to issue an amended EHCP with the changes directed by the SEND tribunal. It had decided to appeal the findings and was waiting to hear the outcome. On 2 June, the SEND Tribunal was ordered to review its decision. But only with regard to the ABA provision the Council was ordered to make outside of school hours.
27. In June 2020 the Council made the decision to seek a new school placement for D and began consultations with a school I will call ‘School Y’. In reply to our enquiries the Council says this was an “error of judgement”. It says that Mrs B and Mr C never indicated they wanted a change of school for D and so it should have sought to maintain his provision at School X.
28. In July 2020 School X contacted the Council seeking clarity on whether it would continue to be named on D’s EHCP. The Council did not reply to that contact.
29. In August 2020 the Council issued a revised draft EHCP. This did not name a school. However, the Council said it intended to name School Y.
30. In September 2020 School Y assessed D and in October 2020 advised the Council it could meet his needs. It asked the Council to confirm the placement and send it a revised EHCP. The Council failed to do this. I noted that up to January 2021 School Y was contacting the Council asking it to confirm its intentions.
31. On 6 November 2020 the SEND Tribunal upheld the decision made in April 2020. The Council was therefore required to arrange for ABA provision for D outside school hours.
32. On 18 December 2020 the Council missed the deadline to issue a revised EHCP incorporating the changes ordered by the SEND Tribunal. At the end of the month Mrs B and Mr C made a complaint about the Council failing to adhere to timescales and make provision for D. In their complaint they made clear they did not object to School Y being named in D’s EHCP.
33. At the end of January 2021, the Council issued a final EHCP. This named School X. Mrs B and Mr C chased a reply to their complaint. In doing so, they pointed out that D was not attending School X.
34. In April 2021 there was a further annual review of D’s EHCP where it was recorded he was not attending School X. The Council invited representatives of School Y to attend and there was discussion about the provision it could provide. It is not clear from any records I have seen why D’s placement at School Y did not proceed at this time.
35. In May 2021 the Council referred D to an alternative education provider. But that provider said it could not meet his needs.
36. In August 2021 the Council replied to Mrs B and Mr C’s complaint. It recognised that D had gone without provision for three months between May and July 2021. It apologised and offered a financial remedy of £2,740. It calculated this based on a tariff of £300 for each month D was without one-to-one tuition; £240 a month for each month he was without SALT; £320 a month for each month he was without OT; and an additional £160 for once per term review of D’s SALT. It said moving forward Mrs B could receive a personal budget enabling her to buy D’s ABA support.
37. Mrs B responded the same day. She asked the Council to also allow her a personal budget to purchase OT and SALT for D.
38. In October 2021 the Council issued a further revised EHCP for D. It did not name a school placement, saying D needed education at a specialist provision.
39. During Autumn 2021 Mrs B and Mr C chased the Council for an update on D’s provision. They explained they had heard nothing further about the personal budget. They also explained they did not think the Council’s offer of a financial remedy went far enough. They said they did not know what was happening about D attending School Y. In January 2022, Mrs B reiterated these points in response to a request she clarify her outstanding complaint.
40. In mid-November 2021 the Council identified a provider who gave tuition to D at home until the end of March when the arrangement broke down.
41. In January 2022 School Y advised it could no longer offer a place to D as it was no longer approved to provide education under Section 41 of the Children and Families Act 2014. This meant it could not be named on D’s EHCP.
42. On 25 February 2022 the Council activated Mrs B’s personal budget. This was to allow her to buy in ABA provision to cover both term and holiday periods; OT and SALT.
43. In March 2022 the Council answered Mrs B’s outstanding complaint. It did so at stage one of its complaint procedure. It says it did this as the complaint included new matters not referred to in the January 2021 complaint. It explained more about the financial remedy it had paid. It updated Mrs B on why it could no longer pursue a place for D at School Y and that it had been consulting potential alternatives.
44. Mrs B replied the same day indicating she remained dissatisfied. She did not understand why the Council was not offering a financial remedy to cover any period D went without education before May 2021. The remedy also did not include anything for the lack of ABA support.
45. In April 2022 the Council issued a further amended EHCP for D. This named a different education provider I will call ‘School Z’. Mrs B and Mr C did not object to School Z, but D could not start there until September 2022.
46. In May 2022 the Council gave its final response to the complaint. It explained that it had consulted 14 schools before identifying School Z as a suitable placement. It did not otherwise add anything to its earlier responses.
47. At the end of May 2022 and until the end of August, the Council found another tuition provider. They supported D with 10 hours a week one-to-one tuition until he started at School Z.

My findings

Ombudsman’s jurisdiction and use of discretion

48. The term ‘jurisdiction’ refers to our legal powers to investigate complaints.
49. I note Mrs B and Mr C’s complaint is partly a late complaint as it involves consideration of some events that took place more than 12 months before they complained to this office.
50. I have decided to exercise discretion to investigate all of the complaint despite this passage of time. This is because I consider the events set out above, form a continuum as Mrs B and Mr C were engaged in ongoing dialogue with the Council about D’s education. I do not consider it would be practical or fair to draw an arbitrary line and say that Mrs B and Mr C should have known to complain to this office at a fixed point in time, given the ongoing nature of those discussions. I also note this included making an initial complaint to the Council within 12 months of the beginning of the events covered by this complaint, to which the Council significantly delayed a reply.
51. I also note Mrs B and Mr C’s complaint requires us to consider if there is any overlap between the matters we are investigating and those considered by the SEND Tribunal. As I explained above, we are prevented from investigating matters which have been before a tribunal as it is an ‘alternative remedy’ to complaining to the Ombudsman.
52. Therefore, I am unable to take a view on the Council’s non-provision of the provision ordered by the April 2020 SEND Tribunal before 20 May 2020. This is because in the first instance the Council had five weeks to implement the tribunal findings.
53. But in addition, I have decided to use my discretion not to investigate any failing by the Council to make the provision ordered by the April 2020 SEND Tribunal before 2 June 2020. Until that date, the Council did not know if the SEND Tribunal decision of 15 April would be upheld, in whole or in part. I consider it could reasonably wait an additional two weeks to find out the outcome of its appeal.
54. After that date the Council knew that the only matters which would be reconsidered by the SEND Tribunal were its orders that it support D with ABA provision on days and times outside of the school day. I consider I can only take a view on a complaint the Council failed to provide D with ABA provision outside the school day from 18 December 2020 onward. This is because it was not until 6 November 2020 the SEND Tribunal confirmed its position on the ABA provision. The Council then had five weeks to implement that order.

On the substance of the complaint

55. As it now acknowledges, the Council should have challenged School X in April 2020 when it suggested that it could no longer support D with his education. This was not something the school had argued when D’s case was before the SEND Tribunal in the same month. And the argument that there were irreconcilable differences was plainly undermined by Mrs B’s insistence that she wanted D to continue to receive an education there.
56. I am unclear what efforts Mrs B and Mr C made to return D to School X after April 2020. But it is evident the school gave the impression they could no longer teach him and that from June 2020 the Council was seeking an alternative. So, I put little weight on Mrs B and Mr C not making more effort to return D to School X.
57. I am satisfied the Council knew from April 2020 onward that D was out of school. Even if it had been agreed by all sides that D needed a fresh start at a new school, there should have been a managed transition. But not only did the Council fail to ensure there was a managed transition, but it also allowed an unacceptable drift and delay in its management of the case. The Council should have ensured that D could return to School X with the support identified in his EHCP, as amended by the SEND tribunal, until such time that an alternative school was identified and he could begin his education there. Its failure to do this was a fault.
58. The email chain between the Council and School Y also shows drift and delay. From October 2020 onward School Y was making clear it considered it could meet D’s needs. There is no indication on file that Mrs B or Mr C were ever a barrier to D attending there. But emails from the school went unanswered and the Council unaccountably failed to confirm its intentions over several months. That too was a fault.
59. In the meantime, it is evident the Council was making no alternative provision for D. The Council made no efforts in that regard until May 2021 and when it did so that effort was limited and unsuccessful. It was not until mid-November 2021, after he had been out of school for around 18 months that D received any home tuition. There is no indication that was full-time or equivalent and I assume it was no more than that it secured in May 2022 after the first home tuition placement broke down. The Council was therefore further at fault for failing to ensure D had more support and sooner while he was out of school.
60. Underpinning these failings, the Council has shown a consistent failure to meet deadlines imposed by law on when it should issue draft and final EHCPs. It failed to issue an amended final EHCP at the beginning of June 2020 when it knew what the scope of its appeal would cover. It should have issued a final EHCP at that point with those changes ordered by the tribunal that were not under appeal.
61. If the Council believed it needed to amend D’s EHCP as a result of the April 2020 annual review then it should have issued a revised draft within four weeks of that review. I understand at the time the law was not clarified, with councils believing they had four weeks only to give notice of an intention to amend an EHCP. But even so, a delay of five months in issuing any amendments further to the review was unacceptable.
62. The Council missed a third deadline when it did not issue a final EHCP further to the November 2020 SEND Tribunal decision within five weeks.
63. Then, there was further delay after the April 2021 annual review, with the Council again failing to issue an amended EHCP within four weeks of that taking place.
64. All of these delays justify a further finding of fault.
65. Next, I have considered the Council’s complaint handling, where it has also been at fault. First, for the unacceptable and significant delay in replying to Mrs B’s complaint in January 2021. Second, for not progressing that complaint swiftly to stage two of the Council’s complaint procedure after August 2021 when it is evident Mrs B was unhappy with the outcome. I do not consider the Council should have sent a further response under stage one of its procedure. This is because Mrs B’s communications were a continuation of her earlier dissatisfaction, including taking issue with the remedy offered by the Council to her complaint.
66. These faults caused injustice to D. Between April 2020 and July 2022 he did not receive the education provision set out in the various iterations of his EHCP. The Council only met his needs in a limited way with home tuition from November 2021 onward. And while his parents have also made provision that has helped meet some of the shortfall in D’s provision, this also has clearly not been enough. In particular before 25 February 2022 when they began to receive a personal budget. There has been a significant loss of service to D therefore as well as costs incurred by Mrs B and Mr C before February 2022, for which they should be recompensed.
67. In addition, Mrs B was put to unnecessary time and trouble due to the failings in the Council’s complaint handling.

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Agreed action

68. The Council accepts these findings. It has agreed that in order to remedy the injustice set out above, that within 20 working days of this decision, it will:

• provide an apology to Mrs B and Mr C accepting the findings of this investigation;
• pay Mrs B and Mr C £7760 to reflect the loss of education provision to D;
• pay Mrs B and Mr C £7000 towards their costs in engaging an ABA consultant;
• pay Mrs B and Mr C £500 to reflect their time and trouble.

69. These payments take account of the Ombudsman’s published guidance on remedies. We do not recommend an approach that says the Council should make a payment based on the cost to it of the services it has failed to provide. Instead, recommend awards based on the loss of service to the child. These will typically range between £200 and £600 a month dependent on factors such as the age of the child and any education provision they received that fell short of full-time education. In my judgement a payment of £450 a month is fair to cover the period June 2020 to November 2021 (18 months = £8100) which is when the Council began providing some tuition for D. Thereafter I consider a payment of £300 justified until July 2022 (8 months = £2400). The amount being less from this time as the Council provided some home tuition and then, in February 2022, began making a direct payment to Mrs B to help support D’s provision. From this total of £10,500 I have deduced the £2740 already paid by the Council.
70. Our guidance also encourages recompense for services, if a parent can demonstrate they have paid for a child’s provision in the absence of the Council doing so. Consequently, I have recommended a payment towards the costs of an ABA consultant noting that Mrs B and Mr C’s representative has provided me with an invoice totalling just under £12000 for their services up to December 2021. However, I have deducted from this the services provided before January 2021 when the ABA provision was not settled and under appeal. I consider the Council under no obligation to meet these costs before that time.
71. I have recommended a high time and trouble payment to reflect that Mrs B and Mr C have engaged the services of a representative. While this is not a requirement to use our service, I can understand why, given the history of poor service they received, Mrs B and Mr C should have sought expert advice. The sum recommended does not meet their representative’s bill but should be seen as a contribution towards it.
72. In addition to the personal remedy for Mrs B and Mr C the Council has agreed to reflect on what lessons it can learn from this complaint. I note here that over the past 18 months we have issued a series of decisions finding fault with the Council’s SEN service. Agreed actions have included:

• reminding staff on the importance of effective communications during the EHCP process;
• introducing measures to ensure the Council actions the outcome of annual review meetings promptly and has systems in place to monitor this and to ensure it meets the statutory timescales;
• reminding staff of the need to ensure the Council provides any education provision detailed within an EHCP;
• addressing with schools any instance where a school is unwilling or unable to make the provision set out in a pupil’s EHCP;
• reminding staff on the importance of complying with Government guidance on Section 19 duties;
• reminding staff of the need to keep to timescales set out in its complaint procedure.

73. I am conscious that some of these actions have only been agreed recently. And may relate to instances of fault that occurred contemporaneous to or after the events described in this investigation. I cannot say therefore that these measures have failed to bring about an improvement in its SEN service. But in the light of the above, the Council has agreed to consider what further steps it can take to embed such basic good administrative practice into this service. Within 20 working days of this decision, it will write to us and explain what further action it now proposes to take to try and avoid a repeat of these events. For example, if it considers it needs to further raise awareness of any of the issues covered by this complaint then it should explain to us how it proposes to do this through measures such as staff briefings or training.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mrs B, Mr C and D. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman