Summary: Mrs B says the Council failed to provide education to her daughter, failed to follow the special educational needs code of practice and delayed considering her complaint. The Council failed to consider putting in place alternative provision for Mrs B’s daughter, failed to follow the special educational needs code of practice following an early annual review and delayed considering Mrs B’s complaint. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to provide education to her daughter from February 2022;
• failed to follow the special educational needs (SEN) code of practice following an early annual review;
• delayed considering her stage two complaint;
• failed to include evidence from reports and include SMART outcomes when drafting the education, health and care plan (EHCP);
• failed to work collaboratively with her when producing the EHCP; and
• failed to negotiate the EHCP in good faith.
2. Mrs B says failures by the Council led to her daughter missing out on education and therapeutic input and caused her and her husband significant distress and loss of income.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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What I have and have not investigated

6. I have investigated Mrs B’s concerns about failure to provide education to her daughter between February and July 2022, its failure to follow the SEN code of practice following the annual review and delay considering the complaint. I have not investigated the concerns about the process the Council followed in drawing up the EHCP, the content of that EHCP, failure to put in place provision in the EHCP or the type of school named in section I. I set out at the end of this statement my reasons for not investigating those matters.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

Provision of education

10. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
11. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of suitable education for children of compulsory age who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child's age, ability and aptitude, including any special needs. The provision may be part-time where the child's physical or mental health means full-time education would not be in their best interests.
12. Statutory guidance issued by the Government called "Alternative Provision" says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
13. 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)
14. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. ('Out of school, out of sight?' July 2022). We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) - even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.

Education, health and care plans

15. A child with special educational needs may have an EHCP. An EHCP describes the child’s special educational needs and the provision required to meet them.
16. The procedure for assessing a child’s special educational needs and issuing an EHCP is set out in regulations and Government guidance.
17. An EHCP should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s EHCP.
18. 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.
19. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing EHCPs. It deals with reviewing plans as follows.
20. Councils must review an EHCP at least every 12 months. The first review must take place within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. They may carry out a review earlier.
21. The review meeting should consider how appropriate the EHCP is in the light of the child or young person’s progress or any changes of circumstances.
22. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHCP as it is, amend it or end it.
23. If the council decides not to amend the EHCP it must write to the parent or the young person with its decision and tell them about the right of appeal.
24. If the EHCP needs to be amended the Council should start the process of amending, it without delay. It must:
• send the child’s parent or the young person a copy of the EHCP with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the EHCP and advise where they can find information about placements available;
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
25. If the council decides to amend the EHCP following the representations it must issue the final amended EHCP within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

The Council’s complaints procedure

26. This says when a stage two request is received the Council will take one of the following actions:
• refer the complaint back to the department involved with recommendations for further action;
• decide not to investigate (this includes cases where the complaint falls outside the scope of the corporate complaints procedure);
• carry out a further investigation.
27. It says stage two investigations should be completed within 20 working days. It says where that is not possible the Council will ensure the complainant is kept informed of progress.
28. Appendix B of the Council’s complaints procedure covers matters that should not be dealt with by the Council's corporate complaints procedure. That includes complaints where an alternative right of appeal exists.

What happened

29. Mrs B’s daughter has special educational needs and was attending a mainstream primary school. Mrs B’s daughter had been on a part-time timetable but stopped attending the school on 24 February 2022 due to anxiety. Mrs B initially provided a home tutor for her daughter but that was not successful. Mrs B’s daughter did not have an EHCP at that point.
30. The Council agreed to an EHC needs assessment in May 2022. It then agreed to proceed with an EHCP and issued a draft EHCP in July 2022. The Council issued a final EHCP on 30 August. Mrs B appealed.
31. Mrs B’s daughter began attending a new mainstream primary school at the beginning of September 2022. Due to anxiety Mrs B’s daughter stopped attending the school on 27 September.
32. The Council completed an early annual review for Mrs B’s daughter in December 2022. That annual review recommended amendments to the EHCP. That included a change of school placement as Mrs B’s daughter needed a specialist school.
33. The Council put in place alternative provision for Mrs B’s daughter from December 2022.
34. The Council wrote to Mrs B on 5 January 2023 to say following the annual review it had decided to include the proposed changes to the EHCP in the working document for tribunal. Mrs B told the Council she considered its response unlawful and said she would complain.
35. The Council offered to arrange a meeting with Mrs B to agree changes from the annual review paperwork. The Council said it would include those changes in the working document for tribunal. That meeting took place in February.
36. The Council has received an offer of a school place for Mrs B’s daughter. The appeal hearing is due to take place in February 2024.

Analysis

37. Mrs B says the Council failed to provide education to her daughter from February 2022. The Ombudsman cannot consider any failure to provide education from the point at which an appeal right arises until the point at which the tribunal proceedings cease. As the Council issued an EHCP at the end of August 2022, naming a different mainstream primary school and Mrs B appealed this means I cannot consider any failure to put in place education provision for Mrs B’s daughter from August 2022 onwards.
38. I am satisfied Mrs B’s daughter stopped attending her allocated primary school on 24 February 2022. I am also satisfied Mrs B initially funded a tutor with experience in special educational needs for her daughter. I am satisfied that stopped after three weeks due to her daughter’s anxiety. It is also clear from the documentary records Mrs B had some concerns about whether her daughter could engage with any provision at that stage due to her anxieties.
39. I appreciate Mrs B’s daughter remained on the roll of the original school until the Council issued an EHCP in August 2022. Nevertheless, the Council is responsible for ensuring a child receives education. I am satisfied Mrs B’s daughter did not receive any education between early March 2022 and the end of the school year in July 2022 and the Council knew that. I have seen no evidence the Council considered whether to put in place alternative provision or that it liaised with the school to ensure the school put in place alternative provision until December 2022. Failure to consider putting in place alternative provision is fault.
40. Given the difficulties Mrs B’s daughter had accessing alternative provision in March 2022 I do not consider it likely, on the balance of probability, if the Council had offered alternative provision Mrs B’s daughter would have been able to access it, at least at first. I consider though Mrs B has suffered an injustice as she is left with some uncertainty about whether the situation could have been different if the Council had acted earlier. As remedy for that I recommend the Council apologise to Mrs B and pay her £500. I also recommend the Council remind officers dealing with children who are not attending school of the need to consider whether alternative provision is appropriate.
41. Mrs B says the Council failed to follow the code of practice following the early annual review in December 2022. I set out the process the Council should follow after an annual review has taken place in paragraphs 22-25. The Council failed to follow that process because it did not issue a revised EHCP following the December 2022 annual review when it had decided to make amendments. I appreciate the Council decided instead to include the proposed amendments in the working document for the tribunal. However, there is no provision in the code of practice for the Council to do that rather than issuing an amended EHCP. I am also surprised the Council held an early annual review if it did not feel it could issue an amended EHCP while the tribunal proceedings were continuing. Failure to follow the code of practice is fault.
42. What I have to consider is whether Mrs B suffered an injustice due to the Council’s fault. This is complicated by the fact Mrs B had already appealed an earlier EHCP. That appeal also included the SEN provision in the plan. It is clear some of the amendments the Council was proposing to the EHCP following the review are ones it has now presented to tribunal. I therefore consider it likely tribunal will consider those amendments and decide whether to include them in the EHCP. That means those issues are outside the Ombudsman’s jurisdiction.
43. I appreciate Mrs B has missed out on a further right of appeal as the Council did not issue a revised EHCP following the review. However, that has now been overtaken by events as the tribunal hearing will take place shortly. I consider that will likely involve the Council issuing an amended EHCP. As I cannot comment on the provision issue I do not make any recommendation for remedy for Mrs B other than an apology. I recommended though the Council remind officers dealing with reviews of EHCPs of the need to follow the process set out in the code of practice even if there is an outstanding appeal in relation to an earlier EHCP. The Council has agreed to my recommendation.
44. The Council delayed dealing with Mrs B’s request for her complaint to go to stage two. Mrs B put in her request on 24 February 2023 but the Council did not respond to it until 15 June 2023. That is outside the timescales for stage two complaints which I refer to in paragraph 27. That delay is fault. I am particularly concerned about the delay in this case because when the Council responded on 15 June it declined to respond to the complaint due to Mrs B’s appeal to tribunal. That was information available to the Council in February 2023 and I therefore see no reason why the Council could not have complied with its complaint timescales here.
45. There were, however, matters raised in the stage two complaint which were not related to the appeal. That included concerns about the Council’s failure to provide education before the Council issued an EHCP. Mrs B had also raised concerns about the Council not following the code of practice following the annual review. I do not consider those issues are related to the tribunal case. I therefore see no reason why the Council could not have dealt with those issues at stage two. Failure to do that is fault.
46. I recommended the Council apologise to Mrs B. The Council should also remind officers dealing with special educational needs complaints of the need to comply with complaint timescales, particularly when it does not intend to pursue the complaint further due to an appeal. The Council should remind those officers to check if there are separable parts of the complaint which are not related to an appeal. The Council should remind those officers if there are separable elements those parts of the complaint should be dealt with under the Council’s complaints procedure. The Council has agreed to my recommendations.

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Agreed action

47. Within one month of my decision the Council should:
• apologise to Mrs B for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £500;
• remind officers dealing with reviews of EHCPs of the need to follow the process set out in the code of practice even if there is an outstanding appeal in relation to an earlier EHCP;
• remind officers dealing with special educational needs complaints of the need to comply with complaint timescales, particularly when it does not intend to pursue the complaint further due to an appeal. The Council should also remind those officers to check if there are separable parts of the complaint, unrelated to an appeal, which can be dealt with under the Council’s complaints procedure.

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Final decision

48. I have completed my investigation and uphold the complaint.

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Parts of the complaint that I did not investigate

49. I have not investigated Mrs B’s concerns about the process the Council followed in drawing up her daughter’s EHCP, some of the content of that EHCP, delay providing information for the tribunal process or the type of school named in the plan. That is because those matters fall outside the Ombudsman’s jurisdiction due to the right of appeal which Mrs B exercised.
50. I have also not investigated Mrs B’s concerns about the failure to put in place the therapeutic provision in her daughter’s EHCP. That is because Mrs B’s daughter only had an EHCP from the end of August 2022 and she appealed that EHCP, including the provision within it. Consequently, I cannot consider any failure to put in place provision from the point at which the appeal right arose.

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Investigator's decision on behalf of the Ombudsman