Summary: Mr X complained the Council failed to provide his child D with suitable education and support for their special educational needs. There was fault by the Council which caused D to miss education and special educational needs support. It also caused avoidable distress for D, and avoidable distress, time, and trouble for their parents. The Council agreed to apologise, issue a final amended Education, Health, and Care plan for D without delay, and pay a financial remedy. It will also issue reminders to its staff, review relevant procedures, and ensure recurrent fault found by the Ombudsman is considered as part of its SEND Improvement Plan.

The complaint

1. Mr X complains on behalf of his child D, that the Council has failed to provide D with suitable education, and Special Educational Needs (SEN) support. Mr X says the Council:
• failed to provide suitable alternative education after D stopped attending school full time in November 2022;
• agreed to name a new school placement for D when it reviewed their Education, Health, and Care (EHC) plan in April 2023. However, it then delayed in issuing a final amended plan naming a new school. This was still outstanding when Mr X came to the Ombudsman; and
• did not communicate properly with Mr X about these issues or respond to his queries and concerns in good time.
2. Because of this Mr X says:
• D missed education and SEN support. They experienced isolation, their mental health deteriorated, and they are now on medication; and
• Mr X, and D’s mother Mrs X, were caused stress. The impact on Mrs X’s mental health was significant.
3. Mr X wants the Council to find a suitable school placement for D and provide suitable alternative education while they are out of school.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
7. 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.
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. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

What should have happened

Education, Health, and Care (EHC) plans

12. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
14. The Council is responsible for making sure that arrangements specified 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. An EHC plan is set out in sections. Section I gives the name and type of school the child will be placed in.

EHC plan reviews

16. Councils must review EHC plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186)
17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
18. Where a council proposes to amend an EHC plan, 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, within four weeks of the annual review meeting. (SEND Regulations 2014 Section 22(2), and SEND Code paragraphs 9.176 and 9.194)
19. Following comments from the child’s parent or the young person, if a 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 proposed amendments to the parents. (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)

Appeal rights and the SEND Tribunal

20. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative educational provision for a child out of school

21. 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. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
24. The education provided by a council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. The relevant statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs, January 2013’ says councils should provide education to those out of school as soon as it is clear they will be away from school for 15 days or more, whether consecutive or cumulative.
26. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (2013 Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The Human Rights Act

27. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
28. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
29. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if:
• they can show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

30. D has had an EHC plan since primary school. In September 2022, D started year 8. Around the same time, Mr X complained to the Council. He said D’s school was not delivering the SEN provision set out in their EHC plan and he wanted them to move to a new school. The Council said it would review the suitability of D’s school placement following an EHC plan review in November 2022. At the review it was discussed that D was struggling to attend school. The Council agreed the SEN provision in D’s EHC plan should be updated and said it would explore whether alternative education could be arranged. There were delays in the review process, so Mr X brought his complaint to the Ombudsman. We found fault with the Council because of the delays. It agreed to our recommended remedy for the impact of that delay and issued a final amended plan in March 2023.
31. A month later in April 2023, the Council held another EHC plan review. It asked Mr X to provide medical evidence to show why D’s school could not meet their needs so was not suitable for them. Mr X provided this in May 2023.
32. Two weeks later, Mr X made another complaint to the Council. He said:
• D was still out of school with no education in place; and
• the Council had not responded to the medical evidence he provided.
33. Two weeks later Mr X brought the complaint to us. We told him we could not consider it because the Council had not yet issued its response. We asked the Council to respond to the complaint. We continued to chase the Council and it issued a response at Stage 1 of its complaints procedure five weeks later. The Council upheld the complaint and:
• accepted fault and apologised because it had failed to follow up on actions agreed at the April 2023 EHC plan review;
• said it had consulted two other schools to be named in D’s plan, but both had said they could not meet D’s needs;
• said its Governance Board would consider D’s case and make recommendations about D’s education going forwards; and
• accepted D had no alternative education in place while out of school, because they could not access online tutoring arranged by the school. It said it would arrange face-to-face tutoring from September 2023, and meanwhile the school would send work home.
34. Mr X escalated his complaint to Stage 2 of the Council’s procedure. He said the Council had not recognised the education D had missed. The Council responded seven weeks later and:
• accepted its communication with Mr X could have been better;
• said it would provide a financial remedy to recognise education D had missed since Mr X provided medical evidence in May 2023, avoidable distress caused to D; and time and trouble spent by Mr X complaining; and
• said it would issue a final amended EHC plan for D as soon as possible.
35. The Council said its SEND service would contact Mr X within one month of the final complaint response to discuss the outcomes and confirm the financial remedy. Two months later in October 2023, after repeated chasing by Mr X, the SEND service contacted Mr X and offered a financial remedy of £1,200, comprising of:
• £600 to recognise the education D missed for six weeks from May to June 2023;
• £300 to recognise any contribution made to the anxiety and distress D was already experiencing as a vulnerable young person; and
• £300 to recognise the time and trouble spent by Mr X in complaining to the Council.
36. Mr X did not accept the Council’s financial remedy and brought his complaint to the Ombudsman. After we began our investigation, in November 2023, the Council arranged nine hours per week of alternative education for D. This came from a service which provides education and mental health interventions for children who have become disengaged from education. The Council said D’s school would also arrange home tutoring. When I spoke to Mr X in December 2023:
• the home tutoring was not yet in place, and he continued to raise concerns about this; and
• the Council had not issued a final amended EHC plan following the April 2023 review.

My findings

The SEND Tribunal

37. The SEND Tribunal is an independent expert body whose decisions are binding on the Council. Only the SEND Tribunal can direct changes to the education sections of an EHC plan or name a different school in the plan. The law says we cannot normally investigate complaints where someone could have appealed to a tribunal, unless we decide it would be unreasonable to have expected them to appeal.
38. Mr X could have appealed to the SEND Tribunal about the content of the March 2023 final EHC plan issued after his previous complaint to us, and did not do so. However, when the Council issued the plan, it had already scheduled a further review meeting a month later. Therefore, I consider it reasonable Mr X did not appeal the March 2023 plan to the SEND Tribunal, so I have investigated what happened after the March 2023 plan.

Alternative education while out of school

39. D was out of school from November 2022, and the Council was aware of this from the point of the November EHC plan review meeting. The Council accepted it was at fault because it was aware D was out of school but did not ensure suitable alternative education was in place. There was no education put in place for D which was “reasonably practicable” for them to access. D also received none of the SEN provision set out in their EHC plan, which was further fault. The Council should remedy the injustice caused to D by the:
• 2.5 terms of education they missed from January to October 2023. It should have arranged suitable alternative education within half a term after it became aware D was not attending in November; and
• SEN support they missed for the 3 terms they were out of school, from November 2022 to October 2023. The SEN provision in their latest final EHC plan should have been in place already from the start of year 8.
40. Based on our Guidance on Remedies, I do not consider the financial remedy offered by the Council to recognise the education and SEN support D missed is enough, and have recommended it goes further. The Council should also remedy the distress caused to the family by D being out of school.
41. I have not considered whether suitable education was in place for D from November 2023 onwards. This is because:
• we cannot investigate a complaint unless a council has had reasonable opportunity to respond to the issues raised first. This means we usually do not investigate what happened after the complainant brought their complaint to us. We began our investigation into Mr X’s complaint in October 2023, after the Council ended its complaints procedure; and
• in November 2023, the Council arranged some alternative education for D. If Mr X has concerns about the suitability of this education, the Council would need to consider a complaint about this first before we can consider it.

The Human Rights Act

42. I am not satisfied the Council had due regard to D’s human rights under The First Protocol, Article 2, which entitles them to an effective education. It did not properly meet its duties to ensure they had an effective education in place. It did not properly consider the impact its decisions would have on them. This was fault.

EHC plan review

43. The Council agreed D’s school placement was not suitable after the April 2023 review when Mr X provided medical evidence. However, it then delayed in issuing a final amended plan naming a new school. This was still outstanding when we spoke to Mr X in December 2023. This failure to identify a new placement for D in good time, and to meet statutory timescales for the review, was fault. This caused distress and frustrated Mr X’s right to appeal the content of the plan to the SEND Tribunal. The Council should remedy the injustice caused.

Communication and complaint handling

44. The Council accepted fault in how it communicated with Mr X about these issues. He repeatedly had to chase up the Council, including during the complaints process.
45. The Council’s complaints procedure says it will respond to complaints at Stage 1 within 10 working days or explain if this will take longer. Where someone requests escalation to Stage 2, it says it will respond within 20 working days or explain if it will take longer.
46. It took the Council 31 working days to issue a Stage 1 complaint response, and 34 working days to issue a Stage 2 response. Following the Stage 2 response, the Council did not confirm next steps and the financial remedy within one month as it promised. Instead, this took two months and repeated chasing by Mr X. These delays were fault.
47. The Council’s failure to communicate with Mr X and handle his complaint properly caused him avoidable distress, and time and trouble in bringing his complaint to the Ombudsman. The Council should remedy the injustice caused.
48. The Council offered Mr X £300 for the avoidable time and trouble he spent pursuing his complaint. Based on our Guidance on Remedies, I consider this sufficient to remedy the time and trouble caused in making the complaint.

Recurrent fault by the Council

49. We have identified recurrent fault by this Council in several cases over the last two years, about:
• alternative education for children out of school;
• statutory timescales for EHC plan reviews; and
• failure to communicate properly and follow up on agreed actions, in particular failure to carry out complaint outcomes it has agreed to, in good time.
50. The Council has repeatedly agreed to our recommendations to improve its services to address these faults, via policy reviews and staff training. However, the issues have continued.
51. In September 2023, Ofsted carried out an inspection of the Council’s SEND service. It identified multiple issues such as failure to meet statutory EHC plan timescales, an inadequate offer for alternative provision, and poor communication with families. Ofsted recommended areas for improvement. In response, in January 2024, the Council published the Surrey Local Area SEND Partnership Improvement Plan. This set out improvement actions to be monitored through the Council’s governance structures. I have recommended the Council considers the recurrent faults identified in recent Ombudsman investigations as part of its improvement plan.

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Agreed action

52. As set out in our guidance on remedies:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. The Council should remedy the education D missed for the 2.5 terms of education from January to October 2023; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Speech and Language Therapy (SaLT). The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child. The Council should remedy the SEN support D missed for the 3 terms they were out of school, from November 2022 to October 2023.
53. In deciding a suitable financial payment, I considered the following.
• During this period, D was in years 8 and 9 of secondary school. As set out in our guidance on remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school, or a public exam year.
• D had no education in place at all during this time. As described at paragraph 42, because of this I am not satisfied the Council had due regard to D’s human rights.
• D did not receive any of the SEN provision set out in their EHC plan during this time. This included SaLT direct therapy, emotional literacy interventions, input from a learning mentor or qualified counsellor/ therapist, and in-school Occupational Therapy support.
54. Based on these factors, I consider the following remedies to be appropriate.
• £1,900 per term for the 2.5 terms of missed education from January to October 2023. This is a total of £4,750 for missed education.
• £500 per term for the 3 terms of missed SEN support from November 2022 to October 2023. This is a total of £1,500 for missed SEN support.
55. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults. 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;
2. issue a final amended EHC plan for D without delay, so Mr X has the right to appeal to the SEND Tribunal;
3. pay the family a total of £7,750, comprising of:
1. £6,250 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £800 to recognise the avoidable distress caused to Mr and Mrs X by the Council’s failings;
3. £400 to recognise the avoidable distress to D; and
4. £300 to recognise the avoidable time and trouble Mr X spent pursuing his complaint, in line with what the Council already offered in responding to the complaint.
56. Within three months of our final decision the Council will:
1. share a copy of our final decision with all staff in its SEND service. It will remind them about:
1. the Council’s duty under section 19 of the Education Act 1996 to secure alternative education when it is aware a child is out of school for any reason;
2. statutory timescales for EHC plan reviews;
3. the importance of communicating properly with families, responding to specific queries, and keeping them updated about any delays; and
4. the timescales set out in the Council’s complaints procedure, and the importance of actioning complaint outcomes without delay.
2. review SEND/ alternative education decisions issued by the Ombudsman since January 2023, where we have identified systemic fault and the Council has agreed to our recommendations to improve its services. It will ensure it includes these Ombudsman recommendations in its SEND Improvement Plan so it can review the effectiveness of completed service improvements; and
3. review its processes and procedures for following up on education complaint outcomes agreed via its complaints procedures, to ensure its SEND service completes the outcomes without delay.
57. The Council will provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. There was fault by the Council which caused D to miss education and special educational needs support. It also caused avoidable distress for D, and avoidable distress, time, and trouble for their parents. The Council agreed to my recommendations to remedy this injustice, issue reminders to its staff, review relevant procedures, and ensure recurrent fault found by the Ombudsman is considered as part of its SEND Improvement Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman