Summary: Mr F complained about a delay in the Council reviewing his daughter's Education, Health and Care plan. He said the Council failed to meet his daughter’s educational needs and did not put in place alternative education. The Ombudsman upholds the complaint and the Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mr F, complains the Council:
• failed to meet his daughter’s (whom I shall refer to as G) educational needs;
• delayed finalising its review of G’s Education, Health and Care (EHC) plan;
• did not put in place adequate alternative education after G was unable to attend school; and
• delayed agreeing a placement at their preferred school. It said it had not had contact from the school, which the school disputed.
2. Mr F says the impact on G was that she missed receiving education. This injustice was exacerbated by the fact the delay happened during the year she was due to sit her GCSE exams. The faults and uncertainty have caused the family distress and time and trouble. The faults have contributed to the family becoming unsettled and almost dysfunctional.

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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. 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. 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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What I have and have not investigated

8. From the time the Council issued G’s final ECH plan, Mr F had a right of appeal to the SEND Tribunal. As that is an alternative remedy (see paragraphs 4&5), I have not investigated events after the Council issued the plan.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr F;
• made enquiries of the Council and considered its response;
• spoken to Mr F;
• sent my provisional view to Mr F and the Council and considered their responses.

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What I found

Legal and administrative background

Education, Health and Care Plans

10. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The Children and Families Act 2014 (the Act), the Special Educational Needs Code of Practice 2015 (the Code) and the Special Educational Needs and Disabilities Regulations 2014 (the Regulations) contain detailed guidance to councils about how they should manage the EHC plan process.

Securing provision

11. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means, if a council asks another organisation to make the provision, and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. But we do consider that councils should be able to demonstrate due diligence in discharging this important legal duty. And, as a minimum, have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that the provision is not in place, at any time.

EHC plan reviews

13. The Act says councils are responsible for making sure arrangements are reviewed, at least annually. Where, after a review, a council proposes to amend an EHC plan, the Code says it must send the child’s parent or the young person a copy of the proposed amendments, within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
14. Once a draft EHC plan has been issued, parents are entitled to request a particular educational placement. Councils should name the placement requested unless they believe that the placement:
• would not meet the needs of the child;
• would be incompatible with the efficient education of others; or
• is incompatible with the efficient use of its resources.
15. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan, must be completed by 31 March in the calendar year of the transfer. (s18 (1)(3) Special Educational Needs and Disability Regulations 2014)

Absences from school and alternative education

17. Councils must arrange suitable education 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.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs s/he may have. (Education Act 1996, section 19(6))
19. In one court case, the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to provide alternative education would be triggered, and alternative provision should be made, pending finding a suitable school. (R. (on the application of Y) v Croydon LBC [2015] EWHC 3033)

What happened

Background

20. G was in secondary education and has a diagnosis of a literacy difficulty and a specific difficulty in maths. She also struggles with poor attention and focusing skills. She was attending a state school (School 1). But for the start of the Autumn 2021 term the Council and School 1 agreed for G to attend a private school (School 2). The Council says this was provided as alternative education provision.

The January 2022 review meeting

21. On 10 January 2022 School 1 hosted an interim/emergency review of G’s EHC plan. School 2 did not attend. The record of that meeting noted:
• G’s parents’ reported:
1. G was not attending any school or college, or engaging in any type of educational activity;
2. School 2 was no longer a suitable option. And they were equally sure G should not return to School 1;
3. G would not attend any school or college and the best option for her would be home education. Ideally this would be delivered by face-to-face tuition, although they accepted this might have to be via online support;
• the Council said it would contact School 2;
• alternative provision needed to be identified to meet G’s needs.
22. The Council says:
• between January and June, it had a series of meetings with School 2. It was aiming to support the placement’s continuation, as School 2 offered G a high level of 1:1 support;
• its SEND Team were told, towards the end of April, the placement at School 2 was breaking down, and Mr and Mrs F requested home tuition.
23. In June, School 2 hosted a further EHC plan review meeting. The record of this meeting says the School agreed with Mrs F that G would not engage with any of the options available for getting her to attend the School.
24. In July, the Council issued a revised draft EHC plan. This noted the placement at School 2 had broken down and the Council was seeking a mainstream placement from September 2022 – the start of G’s Year 11 (her GCSE exams year).

The referral to the new school

25. Towards the end of August 2022, after contact from G’s parents, the Council’s SEND Officer contacted the managing group (which I shall refer to as the schools’ group) for a non-maintained special school (which I shall refer to as School 3) about availability. The Officer asked, if the group could offer a place, that it provided a cost breakdown and some information about how it would reintegrate G into education.
26. In early September the schools’ group emailed the Council advising that G and her mother had visited School 3 over the summer holidays and G was keen on going there. The email asked if the Council was looking to refer G and, if so, for some paperwork. The schools’ group chased a response through September.
27. At the end of October and again in November, the Council’s Officer responded to the schools’ group’s September email, noting the August consultation she had sent. She asked again if the schools’ group could provide an assessment and costings. She noted the Council’s panel would be unlikely to agree to the placement without this information. The schools’ group acknowledged that it had overlooked the August email. Later in the month, the Council asked the schools’ group for an update.
28. In November 2022, the Council’s panel agreed to explore a placement for G at a special school. It at first carried out a consultation with its maintained special school, which advised in mid-November that it could not offer a place.
29. The next record the Council has sent me is an email it sent School 3, in January 2023, chasing a response to its earlier emails. It says it chased a response again at the beginning of March 2023.

The complaint

30. In October 2022 Mr F complained about the delays in getting G the education she needed and the poor communications from the Council. The Council initially responded apologising for the poor communications. It said it would ask its Officer to set up a communication plan.
31. Its later responses (January 2023):

• accepted delay in sharing a final EHC plan;
• noted its panel had wanted to explore maintained provision before it agreed to G’s parents’ request for her to go to School 3;
• said, while G remained on School 1’s role, the School was responsible for putting education in place for her, from the EHC plan funding. And its officer had liaised with School 1. The School said it had been providing work for G while she was at home;
• advised, while acknowledging Mr F had received a placement offer from School 3, the School had yet to directly contact the Council with this offer;
• noted it had received a placement offer from another special school which its panel was considering.

32. The Council offered the following remedies:

• £300 for G as a vulnerable young person, in recognition of the delays and for any contribution made to anxiety or distress she was already experiencing;
• £200 to Mr & Mrs F in recognition of their time and trouble;
• its service would provide a timescale for when its panel would decide about the offer of a place from School 3;
• the Council would ensure appropriate education was available for G;
• it would review its procedures to improve its communications in other cases.

33. I asked Mr F about G’s education for the time she was at home. He said she was not able to sit down to focus on her own on any work the School was sending home. His view was she needed 1-1 tuition.

The final EHC plan

34. On 27 March 2023 the Council issued G’s final EHC plan. This named School 3 until the end of the academic year. For the academic year starting in September 2023 it specified a type of placement (maintained special school), but did not name a school or college.
35. The final EHC plan noted the Council’s last review of G’s plan had been in November 2020.
36. The Council says G remained on School 1’s role until the March 2023 EHC plan.
37. In response to my enquiries, the Council advised its officer was in contact with School 1 about the work it was sending home. But as these were informal conversations, it did not have a record of these contacts.

Was there fault by the Council?

Delays in the annual review process and the issuing of a final EHC plan

38. After the 10 January 2022 review meeting, the Council should have told G’s parents of its decision to amend the plan and provided the proposed changes within four weeks. It should then have issued the final amended EHC plan within a further eight weeks (12 weeks in total), so by 18 April 2022. The Council did not issue the proposed changes within that timescale, and did not issue the final amended EHC plan until March 2023. That was a delay in excess of three terms. As this was not in line with the guidance, it was fault.
39. The final EHC plan says G’s last review was finalised in November 2020. So the January 2021 review was itself delayed, as the Code says they should be carried out at least annually.
40. The Council issued a revised draft EHC plan in July. The reason for this seems have been due to a need to engage with School 2. I accept the Council was not to blame for any delay by School 2. But I would have expected to see more urgency in it aiming to complete the process. I find fault for it not doing so.
41. After School 2 advised that G would not engage, the Council began to look for another mainstream school. And from August, it began to explore a special school placement. It first checked with its own special school. As “efficient use of a council’s resources” is one of the stated reasons that a council might refuse a parent’s request for their preferred school (see paragraph 14), I cannot fault the Council for wanting to explore a placement at its own special school first.
42. Around this time, there was also some delay by School 3 in responding to the Council’s August 2022 first contact. But there was also further delay by the Council: for example, at times in chasing responses from School 3. The process took too long, and so was fault.

Securing the EHC plan provision and alternative education

43. The Council was responsible for ensuring G received the provision in her EHC plan and for providing alternative education if she was not attending school. The Council’s records note it was told in April 2022 the placement at School 2 was breaking down. But from January 2022 (at the latest), the Council was aware G’s parents were saying that G was not getting any education, that School 1 and School 2 were not suitable and it needed to source alternatives.
44. In response to Mr F’s complaint, the Council said School 1 was responsible for putting education in place for G, from the EHC plan funding. And its Officer had liaised with the School which said it had been providing work for G while she was at home. But the Council has told me it does not have any record of these contacts.
45. The duty to secure the EHC plan provision was with the Council, not the School. So my decision is the Council did not retain sufficient oversight and control over how the School was providing G with the EHC plan’s provisions, or providing alternative education. It should have been making more robust, recorded, enquiries about these issues. And to not do so was fault.
46. The delay in providing an up-to-date EHC plan also meant that, more likely than not, it was unclear what G’s then current needs were.

Did the fault cause an injustice?

47. I have found fault with the Council:
• delaying revising G’s EHC plan;
• delaying deciding on a placement; and
• not doing more to check whether G was receiving the provisions set out in her EHC plan and whether there was any need for it to provide alternative provision.
48. The combined effect of these faults means, on the balance of probabilities, G missed some provision she might have received but for the faults. The period of the injustice is from around the end of April 2022 until near the end of March 2023 – or around three terms. The majority (although not all) of the delay, was due to fault by the Council. Two of the terms were at a particularly key time for G, as they were in the year she was due to take her GCSE exams.
49. There is also evidence of some poor communications with Mr F. As well as the injustice to G, the delays and the poor communications will have likely caused Mr F some avoidable uncertainty and stress.

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Agreed action

50. To remedy the injustice resulting from the identified fault in this complaint, I recommended the Council should, within one month of my final decision, take the following action:
• write to Mr F and G to apologise for the injustice cause by the faults identified above. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology;
• pay Mr F £4700 for the lack of education and an up-to-date EHC plan for around three terms. This figure follows the approach set out in our guidance on remedies. It breaks down into a higher payment for two of the terms, as these were in G’s GCSE exams year. But it also recognises some of the delay was outside the Council’s control. Mr F should use this payment for G’s educational benefit, as he sees fit. It is recommended as in addition to the £300 the Council has already paid;
• make Mr F a symbolic payment of £150 to acknowledge his distress, uncertainty and time and trouble. This is in addition to the £200 the Council has already paid.
51. I also recommended that, within three months of this decision, the Council should remind relevant staff:
• that it is the Council’s duty to ensure the specified special educational provision in an EHC plan for a child or young person is being provided. And it should investigate where a concern is raised that the provision is not in place; and
• to review EHC plans in line with the statutory guidance and adhere to the timescales set out within it.
52. The Council has agreed to these recommendations. It should provide us with evidence it has complied them.

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Final decision

53. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman