Summary: There was fault by the Council which delayed issuing Y’s final Education, Health and Care Plan and failed to ensure he had the educational provision set out in his plan. This caused a loss of a year of education and avoidable distress, frustration and a delay in appeal rights. The Council will apologise, make payments, issue an amended final plan and take action set out in this statement.

The complaint

1. Ms X complained for her son Y. She said:
1. Y has been out of school since September 2022 and so has not been receiving education in line with his EHC plan. There was an arrangement for two school staff to take him out for two hours a day, five days a week. The school was only making staff available to take him out in the community if they had enough staff; they often cancelled at short notice and staff were just taking him out on trips to the farm or ice-skating and not providing education.
2. There was a delay in issuing a draft EHC plan following an urgent annual review meeting in the autumn term of 2022 and a delay in issuing the final EHC plan.
3. There was supposed to be a meeting in June 2023 to plan Y’s education, but the SEND team cancelled five minutes before the meeting was due to start.
2. Ms X said this caused her and Y avoidable distress and her son a loss of education provision. She said Y has not had any formal schooling since September 2022 and he has been isolated at home, had no interaction with friends and has been bored and lonely. Ms X said this leads to Y’s challenging behaviours escalating which she has had to deal with.

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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 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)
4. 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)
5. 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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How I considered this complaint

6. I considered the complaint to us, the Council’s response to the complaint and documents summarised in this statement. I discussed the complaint with Ms X.
7. Ms X 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

Relevant law and guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan 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.

9. 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.

10. The council has 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)

11. We recognise 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. The Ombudsman does 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 provision is not in place at any time.

12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
13. The SEND Code of Practice says an EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers include middle school to secondary school.
14. 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. 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 ‘alternative provision’.

What happened

Background

15. Y has an EHC plan with School A (a maintained special school for children with social, emotional and mental health needs) as his named placement. He was in Year 9 due to change schools in July 2023 as School A is a middle school. The Council told me School A informed the SEND team in January 2022 that Y been permanently excluded and the Council negotiated with School A to have that decision rescinded. The Council also told me in February 2022, Ms X asked it to consider alternative schools for Y.
16. Y remained on roll at School A until July 2023. The Council told me for the whole of Year 9, he attended alternative provision at the Nottingham SEND hub and accessed activities provided by School A in the community for two and a half hours a day. Ms X told me School A was supposed to provide two members of staff to support Y, but they often cancelled with little or no notice. She said Y remained at home with her on many days.

Key events

17. There was an annual review meeting at the start of November 2022. The record of the review noted:
• Y was being educated off site due to concerns about his behaviour. The education took the form of life skills and outdoor education sessions for about 2 hours which School A said was the most he could engage in.
• Y needed a different school placement within 12 weeks and this formed part of his child protection plan.
• Ms X raised concerns about School A cancelling sessions at short notice.
18. The Council received the record of the emergency review meeting on 29 November.
19. The Council issued a draft EHC plan 12 January 2023. As this was a phase transfer (see paragraph 13), the final EHC plan was due on 15 February. The Council told me School A sent it an exclusion notice on the same day.
20. The Council’s SEND Operations panel met on 6 March and agreed to seek an alternative placement and to consider the independent sector. It noted School B was Ms X’s parental preference, but it had declined to offer a place. The papers note Y did not have a SEND officer and another school declined a place.
21. In March a SEND officer spoke to Ms Y who asked for two schools to be consulted.
22. At the end of March, Ms X emailed the SEND team saying she wished to complain. She pointed out she did not have a final EHC plan and so had no right of appeal.
23. In the middle of April, the SEND team consulted with five schools and chased up responses in the middle of May.
24. The Council’s first response to Ms X’s complaint in the middle of April upheld her complaints about delay in the EHC plan amendment process and poor communication about consultation with schools. It apologised and said it had allocated a SEND officer and consulted with five schools. There were ‘capacity issues’ (meaning not enough staff) in the SEND team.
25. Ms X was unhappy with the Council’s first response and escalated her complaint. The final response in June 2023 upheld her complaint again. The response said the Council was aware Y had not been on-site at School A since September 2022 and staff from School A provided two and a half hours a day of support with accessing the community and the SEND hub. The Council offered Ms X £200 a month to reflect the lost provision. Ms Y accepted the Council’s payment of £1800, but she was still unhappy as Y did not have a school place for September or a final EHC plan. So she complained to us.
26. Between June and September 2023, the Council consulted with more schools.
27. The Council told me the meeting in June referred to in complaint (b) was cancelled due to sickness and rearranged for July.
28. In the first week of July, the Council issued Y’s final EHC plan. Section I did not name a specific school, it said Y’s placement would be an independent special school.
29. In July, Ms X emailed the SEND team, exasperated at the lack of progress finding a school. A SEND officer replied saying it had received a negative response from one school and no responses from three other schools. The SEND officer re-consulted with School B.
30. The SEND team referred Y to a tutoring service in the middle of July. The Council told me funding is provided for 10 hours a week of two to one tutoring until Y starts at a school.
31. There was a meeting towards the end of July to review progress and provide updates.
32. Since the complaint to us, the Council challenged two of the schools it had consulted and consulted with additional day schools and residential schools. One of these schools has just offered Y a place to start in January 2024. Meantime, tutoring continues.

Findings

Y has been out of school since September 2022 and so has not been receiving education in line with his EHC plan. There was an arrangement for two school staff to take him out for two hours a day, five days a week. The school was only making staff available to take him out in the community if they had enough staff; they often cancelled at short notice and staff were just taking him out on trips to the farm or ice-skating and not providing education.

33. Ms X raised concerns in the emergency review meeting in November 2022 about the off-site provision being cancelled. The Council has provided no evidence of action it took to ensure Y had suitable full-time education in line with his EHC plan. The off-site provision was in any event only part time and Ms X’s concerns indicate it was not consistently provided. While we do not expect councils to keep a watching brief over schools, where there is evidence a parent has raised concerns, we expect councils to respond and take action to address concerns. There is no evidence the Council followed up the concerns Ms Y had raised in the annual review meeting about School A cancelling sessions. The Council could have put in place tuition for Y in November 2022 or liaised with School A to satisfy itself the off-site arrangements met the Council’s duty under Section 19 of the Education Act 1996. Instead, the Council waited till Y had been out of school for a year before making tuition arrangements. This was a failure to act in line with Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996 (as Y was excluded from school) and was fault causing a loss of education provision. The evidence indicates Y had little to no meaningful education in Year 9.

There was a delay in issuing a draft EHC plan following an urgent annual review meeting in the autumn term of 2022 and a delay in issuing the final EHC plan.

34. This was a phase transfer and so the Council should have issued Y’s final EHC plan by 15 February 2023. It did not do so until 6 July: a delay of almost five months which was fault causing avoidable distress, frustration and a delay in appeal rights. There was no SEND case officer allocated, due to staff shortages. This was fault because Y’s case is complex and it meant there were periods where the case drifted in terms of following up consultations and issuing fresh consultations.

There was supposed to be a meeting on 15 June 2023 to plan Y’s education, but the SEND team cancelled five minutes before the meeting was due to start.

35. It was unavoidable that this meeting needed to be cancelled, but I am satisfied it was rescheduled as soon as possible and so there is no fault.

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Agreed action

36. Our Guidance on Remedies suggests a range between £900 and £2400 a term to acknowledge the impact of loss of educational provision based on the impact on the child, severity of their SEN additional support and the possibility of catch up and the delayed right of appeal. In Y’s case I have considered all these factors plus concerns Ms Y raised at the time about frequent cancellation at short notice of the alternative provision sessions, which were also only for 12.5 hours a week. I am satisfied Y received little or no meaningful education in line with his EHC plan during Year 9.
37. The Council will, within one month of my final decision:
• Issue Y’s final amended EHC plan naming the school which has offered a place.
• Apologise for the avoidable frustration, distress and loss of education caused by the fault I have identified.
• Pay Y £2400 a term for lost special educational provision (three terms), minus the £1800 already received. So £5400.
• Pay Ms X £1000 to reflect her avoidable distress. I consider the distress caused by Y being at home was exceptional and so this figure is on the high end of our usual range. It includes the frustration caused by the Council’s inaction on the case and the delay in appeal rights.
• Review staffing levels in the SEND team and put in place a plan to ensure there are adequate numbers of SEND case officers.
38. I have not recommended a payment for loss of education provision from September 2023 because I am satisfied the ten hours individual tuition is appropriate education for Y until he starts at the new school in January 2024.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council which delayed issuing Y’s final Education, Health and Care Plan and failed to ensure he had the educational provision set out in his plan. This caused a loss of a year of education and avoidable distress, frustration and a delay in appeal rights. The Council needs to apologise, make payments, issue an amended final plan and take action set out in this statement.
41. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman