Summary: Mr and Mrs X complained about the Council’s failure to provide their son with suitable education when he was not attending school, or provision as set out in his Education, Health and Care Plan for a year. We have found the Council at fault. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. Mr and Mrs X complain the Council failed to secure their son with educational provision or deliver provisions as set out in his Education, Health and Care Plan from October 2020 and October 2021. They say this had a significant negative impact to him as he missed out on accessing appropriate education for his needs and caused distress and frustration for the whole family. They also are dissatisfied with how the Council dealt with their complaint.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
4. 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)
5. 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)
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.

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What I have and have not investigated

7. Mr and Mrs X complain about matters from more than 12 months ago before their complaint to the Ombudsman. Whilst the beginning of the period complained about started in October 2020, this continued up until October 2021. The complainants then formally complained about this period in the summer of 2022, with a final response from the Council by the end of the year. Given this chronology, I have exercised discretion to consider these matters.

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How I considered this complaint

8. I discussed the complaint with Mr H (Mr and Mrs X’s solicitor who is dealing with the complaint on their behalf) and considered his views.
9. I made enquiries of the Council and considered its written responses and information it provided.
10. Mr H 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 administrative background

Education, Health and Care Plans (EHCP)

11. 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. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual reviews

13. 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)
14. 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)
15. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments from the child’s parents, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196). It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

18. 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.
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
21. 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). 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)
22. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education.

Human Rights

23. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
24. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

The Council’s complaints policy

25. The Council’s complaint policy says it will acknowledge complaints within five working days. After an initial review, it will normally send a response within 10 working days of acknowledgement.
26. If a further review is requested, the policy says it will acknowledge it as above. It will further investigate and reply within 20 working days of the acknowledgement.

Background

27. I have summarised below an overview of the key relevant events. This is not intended to be a detailed account of each communication between the parties or an exhaustive chronology of everything that happened.
28. Mr and Mrs X’s son (“Y”) has Autism Spectrum Disorder, Attention Deficit and Hyperactivity Disorder, and moderate learning difficulties.
29. In February 2020, Y’s Education, Health and Care Plan (“EHCP”) named a special school placement in Section I (“School 1”), to start from September 2020.
30. The EHCP included Special Educational Provision (“SEP”) of four visits per year from a Speech and Language Therapist (“SALT”) and additional support to carry out recommendations from a SALT. It said Y needed a high level of one-to-one support and he needed help to develop fine motor skills from the Occupational Therapy Service website.

What happened

31. In October 2020, an emergency annual review was held to review Y’s EHCP and the appropriateness of his provision. He had attended six morning sessions at School 1 and the transition had broken down. School 1 said they were unable to meet Y’s needs. The Council attended the review. School 1 and Mr and Mrs X agreed it was not an appropriate setting for him.
32. Later in October, School 1 asked for an update from the Council regarding alternative provision for Y. It raised concerns as Y was not attending school and felt it was urgent. It asked later again if alternative provision had been identified to meet his needs.
33. In November, the Council sent an email to Mr X’s brother (who was assisting Mr X with his concerns about Y) with its plans to consult schools. It understood Y had access to learning materials provided by School 1.
34. Later that month, the Council issued a draft amended EHCP. It used this in further consultations with schools. Mr and Mrs X commented on the draft.
35. Between October 2020 and September 2021, the Council consulted with several schools to identify a new suitable placement for Y. Most were unable to offer Y a place. During this period, assessments were being undertaken with Y by School 2 to determine if it could offer him a place.
36. In May 2021, Mr X’s brother contacted the Council for assistance. He said Y had been given online virtual lessons for a short period, but it was not suitable due to his needs.
37. Mr X’s brother further contacted the Council. The Council said School 1 would be looking at putting provision in place while School 2 was doing its assessment with Y. It said School 1 would send a package of provision to the Council after half term (I took this to be mid-June) and the Council would update him.
38. In June, Mr X’s brother contacted the Council as he had not heard back about provision for Y. The Council asked if Y was being supplied with work to complete at home. School 1 said it had offered work for Y on numerous occasions, but Mr X had said it was not what Y needed. School 1 said to the Council that links to activities and other learning materials were not helpful to Y at home.
39. In July, School 1 emailed Mr X’s brother to inform him the Council would be looking into different plans and provision available. School 1 confirmed it had sent learning materials to Y at home and said it would chase the Council for an update.
40. A SALT therapist emailed the Council after a visit to see Y to provide support. They enquired about how best to support Y in the future relating to his placement.
41. Mr X’s brother emailed the Council complaining about the lack of progress. He repeated School 1 had sent website links for self-learning, which was not suitable for Y.
42. At the end of July, it appears a final amended EHCP was issued. School 1 was named in Section I.
43. In August, School 3 advised it could offer a place to meet Y’s needs with a personalised package of support. The Council approved this.
44. In September, the Council issued a second final amended EHCP naming School 3. Y’s placement started in October 2021.
45. In August 2022, Mr H (Mr and Mrs X’s legal representative) formally complained to the Council on their behalf. He said the Council had failed to secure suitable alternative education for Y between October 2020 and October 2021.
46. In September 2022, the Council responded outlining the actions it had taken to find a school for Y during that period. It said School 1 was named on the EHCP and School 1 was responsible for making the educational arrangements for him. It said it was in regular contact with School 1 to ensure SEP was being offered in the interim. The Council said it had taken reasonable steps throughout and did not uphold the complaint.
47. Mr H escalated the complaint. The Council said it was unable to formally reply within the expected timescales. It said it needed more time to ensure the response fully addressed the issues. Mr H chased the Council for updates.
48. In November, the Council responded at Stage Two. It said it contacted School 1 to request arrangements be made for provision for Y. It said it had not received any requests for additional funding or assistance for sourcing external provision for Y. It maintained its position that School 1 were responsible for Y’s educational arrangements. It did not uphold the complaint. Mr H later complained to us.
49. In response to my enquiries, the Council said it had been in regular contact with School 1. It said the staff members at the school who held the case at the time have left and it appeared not all communication had been recorded.

Analysis

Annual review

50. After the emergency annual review in October 2020, I have not seen evidence the process was completed within legal timescales. The review agreed changes were needed about Y’s provision. A draft plan was sent to Mr and Mrs X for comments and a final plan should have been issued within eight weeks of this (by January 2021). A final EHCP was not issued until July 2021. This was not in line with statutory guidance. This delay is fault. This caused avoidable uncertainty for Mr and Mrs X as Y’s plan was not being kept up to date. It also frustrated their formal right to appeal sooner if they did not agree with what was in the plan.

Alternative provision and EHCP provision

51. I recognise the Council’s efforts to secure a suitable school placement for Y throughout the period investigated, with several school consultations and some assessments. This is not in dispute. However, whilst it demonstrated actions in trying to find a new school, Y did not receive consistent or suitable education for a year in the interim.
52. The Council said as School 1 was named on Y’s EHCP, it was responsible for providing education. But the Council knew in October 2020 that Y was not attending School 1 as it was unable to meet his needs. Councils have a section 19 duty to make suitable education arrangements when a child of compulsory school age who because of exclusion, illness, or otherwise may not receive a suitable education unless the Council arranges it for them. Therefore, at this point, the Council should have considered this duty to provide alternative education for Y while it consulted other placements. It did not in this case. This is fault.
53. It appears the Council’s position was it was not necessary for it to arrange alternative education as it believed School 1 had taken appropriate action by sending learning materials to Y’s home. It is the view of the Ombudsman that work set by schools at home is not suitable provision as it is not direct teaching.
54. Our focus report (referred to in Paragraph 22) says education provision must be based on an assessment of the individual child’s needs. I have not seen evidence the Council considered Y’s circumstances to review what provision was suitable for him when he remained out of school. Even when Mr X’s brother said directly to the Council that School 1’s provision was not appropriate for Y, the Council failed to step in or consider other options for alternative provision. This is fault.
55. The Council’s response to Mr and Mrs X’s complaint showed it did not appear to understand the ultimate responsibility for providing suitable alternative education and EHCP provision lies with the Council. It is important for councils to maintain oversight with processes in place to monitor and review the suitability of any provision. The Council says it was in regular contact with School 1 about provision, but I do not consider it has sufficiently evidenced this.
56. As explained above, learning materials and links provided by School 1 and a brief period of online lessons was not suitable education for Y. On balance, I have seen a SALT therapist visited Y on at least one occasion, which is part of his SEP in his EHCP. However, I have not seen further evidence of any other education or SEP being provided to Y.
57. The Council’s lack of oversight and adherence to its legal duties meant that Y missed out on suitable education and provision as set out in his EHCP from October 2020 to October 2021. This caused significant injustice to Y as he lost out on educational opportunities and support he was entitled to during this period. It has also caused injustice to Mr and Mrs X with distress, uncertainty, and frustration.
58. In addition, given the length of time the Council failed to arrange alternative provision, the Council failed to have due regard to Y’s right to an education (Article 2, the First Protocol, Human Rights Act 1998).

Complaint handling

59. The Council’s formal Stage Two response was sent outside of the timescales in its policy. Mr H had to chase for updates as the Council did not respond when it said it would. I recognise it apologised each time and I note the Council said additional time was needed to ensure the investigation was thorough. In my view, this raised the expectations for a fully considered response.
60. However, the Council’s response was brief and failed to address the substantive matters about the lack of alternative provision. The complaint had valid points that the Council had not evidenced how it engaged with its section 19 duty. I therefore consider it failed to properly consider the issues of complaint. This caused further frustration and additional time and trouble.

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Agreed action

61. We issued a public interest report against the Council in December 2022 for a previous complaint which highlighted similar faults. This made recommendations for service improvements and the Council provided evidence it had carried these out earlier in 2023. This report was after the Council’s final response to this current complaint. Therefore, I have not considered it necessary to recommend further service improvements.
62. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions:
63. Within one month of the final decision:
• Apologise to Mr and Mrs X for the lack of suitable education provided to Y and for not securing the provision as outlined in his EHCP between October 2020 and October 2021;
• Pay Mr and Mrs X £500 for distress, uncertainty and frustration caused over the year, and also in recognition of the injustice at their delayed appeal rights after the annual review in October 2020;
• Pay Mr and Mrs X £6,900 to recognise the loss of suitable education and special educational provision for Y between October 2020 to October 2021. This can be used for Y’s educational benefit; and
• Pay Mr and Mrs X £150 to recognise the additional time and trouble in relation to the Council’s handling of their complaint.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I found fault with the Council which caused injustice to Mr and Mrs X, and Y. the Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman