Summary: Ms X complains her son, Y, has been out of education since November 2021. We find fault with the Council for failing to provide alternative education for Y. We have agreed a symbolic payment for the distress and frustration caused, with service improvements to ensure this does not happen again.

The complaint

1. Ms X complains the Council have failed to deliver the provision in her son’s Education, Health and Care (EHC) Plan. He has been out of education since November 2021.
2. Ms X would like the Council to find a suitable placement for her son, give enhanced educational provision so he can catch up on the lost education, and compensation for the distress and frustration caused.

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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. 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

7. The Ombudsman generally expects complaints to be brought to us within 12 months of someone becoming aware of the issue (see paragraph four). Ms X came to us in August 2023 but I consider there are good reasons to extend my investigation to May 2022, when the Council made arrangements for the Annual Review of Y’s EHC Plan and became aware Y was out of school. This is because it would be difficult to look at the later events without investigating what happened around the Annual Review.

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How I considered this complaint

8. I spoke with Ms X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. 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

Legal and administrative background

Education, Health and Care Plan

11. A child with special educational needs may have an Education, Health, and Care Plan (EHC lan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
12. 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.

Annual Reviews

13. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
14. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the Annual Review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Provision of alternative education

15. 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.
16. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. 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. 

What happened

17. Ms X’s son Y has been diagnosed with Autism and Attention Deficit Hyperactivity Disorder (ADHD). He has an EHC Plan dated September 2018, and had been attending a special school since September 2019.
18. Y had an Annual Review in June 2022 where the school said it could not continue to meet Y’s needs and said a different specialist provision would be more suitable.
19. Both Y and Ms X wanted the school to stay named in his EHC Plan. The school confirmed the records of the review would be sent to the Council for a new placement to be found, and it would provide homework for Y in the interim period.
20. In September the Council were contacted by Ms X’s representative asking for an update. The Council responded saying the Annual Review record had gone to the Panel for a decision on the request for a change of school. It also said it would contact the school regarding its responsibility to provide educational provision to Y whilst still named on the EHC Plan.
21. At the beginning of January 2023 Ms X called the Council to get an update. She said Y could not return to the school and she had not heard anything from the Council since the Annual Review in June. The Council said it would contact the school to see what was going on with Y’s education.
22. The Council confirmed it received the Annual Review notes from June 2022, in January 2023.
23. The Special Educational Needs and Disabilities (SEND) Panel considered the change of placement at the end of January 2023 and decided to keep the school named on the EHC plan.
24. In March Ms X made a complaint to the Council as Y had been out of education for over a year at this point, and despite chasing for an update throughout February the Council had not updated her. Y was 13 when he had been unable to attend school, and two years later was still without education.
25. The new SEN co-ordinator for Y introduced himself to Ms X in March and said he would refer Y to the Mental Health Service.
26. The Council responded to the complaint in April saying it had asked the school to complete the Mental Health Service referral and to give C home education. It apologised for the length of time taken to resolve.
27. Ms X was unhappy with this response so she made a stage two complaint in early June. She explained she met with her SEN co-ordinator in April and agreed immediate home tutoring, request to SEND Panel for tutoring to run over the summer, and an Annual Review in the Autumn to look at a new school. This responsibility was all passed to the school that Y had not attended since November 2021 and were not permitting him to attend.
28. At the end of June the Council asked the school how much home education Y was having. The school response said work packs had been sent for Y and were not returned or completed. Y refused to engage and is now having online work as requested by Ms X. The school said it had allowed this to go on while move to another provision could be arranged. The school had consistently made it clear it could not meet Y’s needs and said it did not make sense for Y to be on the roll after July as the school is over subscribed.
29. The Council gave a stage two response to Ms X in July saying although the annual review took place in June 2022 the Council only got the relevant documents from the school in January 2023. It considered the school’s request for a change of placement but it wasn’t agreed as it was not the parental choice. It asked the school if face to face tuition could be supplied to Y but it couldn’t. At this stage Y’s case should have been resubmitted to Panel to request tuition via the Council, but it wasn’t, and the Council apologised for this. The Council said it would therefore implement this throughout the summer as requested, and consult with the schools suggested.
30. Ms X was unhappy with the response from the Council so she brought her complaint to the Ombudsman.

Analysis

Annual Review

31. The Council was aware Y was not attending school in May 2022. It arranged the Annual Review for June.
32. The school did not send the Council the Annual Review papers until January 2023. The Council should have sought these papers after the school failed to meet the two-week deadline (see paragraph 13). The Council should have told Ms X of its decision to keep or amend the EHC Plan within four weeks of the Annual Review meeting.
33. We expect EHC Plans to be finalised within 12 weeks of the Annual Review (see paragraph 14). Y’s EHC Plan was not finalised by his next Annual Review held in December 2023. The delay in finalising Y’s EHC Plan is fault. It meant Ms X was deprived of the possibility to appeal Y’s EHC Plan when he was not attending school and not receiving education. This fault caused Ms X significant distress and frustration. She kept contacting the Council seeking resolution.

Alternative provision

34. The school said at the Annual Review it could not meet Y’s needs. This had to go to Panel as Ms X and Y both wanted the school to remain named on the EHC Plan. The Council then asked the school to provide home tuition which the school could not do. The Council admit in the stage two complaint response it should have gone back to Panel then but did not. The Council’s failure to consider if it should have arranged alternative provision for Y is fault.
35. In our Focus Report mentioned in paragraph 16 we explain what councils should do when children are out of school. We expect councils to:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.
36. On the balance of probabilities I consider that if the Council had considered Y’s educational circumstances, it would have accepted its duty to arrange alternative provision for him. The Council’s failure to do this caused delay and frustration to Ms X, and a delay in provision for Y.
37. I find fault with the Council for failing to consider whether it should have arranged alternative provision for Y (see paragraph 15). I have suggested a remedy for Ms X to start from September 2022 until July 2023.

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Agreed action

38. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of all relevant factors.
39. Within one month of the final decision, the Council should:
• Write a personalised apology to Mrs X for the faults identified above. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology recommended in my findings;
• Pay Mrs X £6500 made up of:
1. £6000 (£2000 per term x 3 terms) to remedy the failure to provide Y with alternative provision from September 2022 to July 2023; and
2. £500 for the distress and frustration caused to Mrs X as a result of the faults above.
40. I also recommend that, within three months of the Ombudsman’s final decision, the Council should issue written reminders to relevant staff to ensure officers:
• know the relevant time limits after an annual review, and set reminders accordingly so children do not get “lost”;
• review our Focus Report “Out of School, Out of Sight?” (see paragraph 16); and
• are aware of the Section 19 duties.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find fault with the Council for the delays within the Annual Review of Y’s EHC Plan and the failure to provide Y with alternative education after his annual review. I have suggested financial remedies for the distress and frustration caused to Ms X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman