Summary: There was fault and delay in completing an annual review and a failure to provide suitable fulltime alternative education and special educational provision in an EHC plan for 5.5 terms. This continued after the Council admitted the fault. The fault has caused significant injustice to the whole family and loss of education to the child. The Council will apologise, make a symbolic payment to acknowledge the injustice caused and make service improvements.

The complaint

1. Ms X complained to the Council in Spring 2023 that her child had been without any form of education since Autumn 2022. Ms X said her child has special educational needs (SEN) and had been out of school because their needs could not be met.
2. Ms X complained the SEN caseworkers did not reply to communications.
3. Ms X complained there had been delay in updating her child’s Education, Health and Care (EHC) Plan.
4. Ms X says because of the alleged fault:
• she was unable to return to work,
• her child has missed education,
• they became socially isolated,
• she has had to buy workbooks and incur expenses to provide an education at home.
5. Ms X says the situation has impacted her other child as they cannot attend clubs or activities due to caring demands of their sibling.

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The Ombudsman’s role and powers

6. 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)
7. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
11. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
12. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
13. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.
   

14. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
15. 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

16. I have investigated the above complaints from the Autumn term of 2022 to Spring 2024.
17. I have not investigated the actions of the school as these are not in jurisdiction.
18. While Ms X had a right of appeal in Autumn 2023 to Tribunal, I have exercised discretion to investigate the period after this date because I consider it was reasonable Ms X did not appeal. I explain this further below.

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How I considered this complaint

19. I have considered information provided by Ms X and the Council including:
• complaint correspondence
• SEN and EHC Plan documents.
20.   I have considered relevant law and statutory guidance including:

•      The Children and Families Act 2014 (‘The Act’)

•      The Special Education and Disability Regulations 2014 (‘The Regulations’)

•      The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

• Statutory Guidance ‘Alternative Provision’.
1. I have considered the Ombudsman’s Guidance on Remedies.
2. I have also spoken to Ms X by telephone.
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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

Parent carers

25. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a parent carer needs assessment is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities. This is a voluntary process.

Special educational needs (SEN)

26. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

27. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)  

28. The Council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The Council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

29. Where the 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 ‘amendment 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). Case law sets out this should happen within four weeks of the date of the review meeting. The Council must issue an amended final EHC Plan within eight weeks of the amendment notice.

Alternative education

30. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
31. 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)
32. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
33. 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))
34. The education provided by the 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)
35. 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? published July 2022
36. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that 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, retain oversight and control to ensure your duties and properly fulfilled.

What happened

37. Ms X’s child, who had an EHC Plan, started to receive fixed term exclusions from school in Spring / Summer 2022. Ms X says this led to her having to give up work as she was frequently called to collect her child from school.
38. From Autumn 2022 the School would not allow her child to attend at all due to their behaviour.
39. Ms X says the Council held an annual review of the EHC Plan in Autumn 2022 but delayed in completing the review or naming a different placement.
40. The Council told me the family declined social care involvement in Autumn 2022 and had previously had support from Early Help.
41. Ms X complained to the Council in Spring 2023 about lack of education. The Council responded in Summer 2023 that a fulltime school place was being funded but the Council recognised Ms X’s child was not attending. It said alternative provision (s.19 education) of 1.5 days per week was in place.
42. Ms X says this was one day at a Forest School provider and half a day with a support worker / ‘buddy’, but no academic tuition was provided.
43. In response to the complaint the Council said it would contact the school about increasing alternative education while a new school place was found. The Council was seeking a specialist placement but so far none had offered a place.
44. Documents provided by the Council show it received two responses to consultations from schools in Spring 2023.
45. The Council acknowledged there was a period when communications with staff were not at their expected standard.
46. The Council acknowledged there had been delay in issuing an amended EHC Plan after the review meeting in Autumn 2022, with a draft plan not issued until Spring 2023.
47. Ms X was dissatisfied with the response, particularly as the s.19 education had not increased.
48. The Council considered the matter at stage two of its complaint process and offered a symbolic payment broken down as follows:
• £300 to acknowledge Ms X’s time and trouble in pursuing the matter with the Council.
• £500 payment to Ms X to acknowledge the uncertainty and frustration from the delayed completion of the annual review.
• £2400 payment to recognise the lost education from October 2022 to June 2023.
49. The Council apologised and said a case officer would contact Ms X to agree appropriate interim education until a school place was found.
50. The Council issued a final EHC Plan in Autumn 2023, one year after the annual review meeting. The Plan named only a type of school (‘specialist’) not a specific school. The previous named school then had no duty to admit.
51. The Council again consulted Ms X’s preference school, but it again said it could not offer a place.
52. The Council told us the alternative education currently in place remains the same 1.5 days provision set out above.
53. Ms X told me she did not appeal the final 2023 EHC Plan as she expected interim provision, such as a home tutor, to be put in place. This had been agreed by the Council in her complaint. Ms X also expected a school place to be found.
54. Ms X says she met the Council recently and the lack of provision was discussed. She told me the Council officer said they would try and get more funding. The Council told me this is not its recollection, it says funding is not the issue, the problem is finding suitable provision given Ms X’s child’s level of need.
55. Ms X says despite promises for better communication, and even though she has been allocated a Manager to oversee her case, communication remains sporadic because the Manager has had to pick up many similar cases.
56. Ms X says due to the time her child has now been out of school there would need to be a gradual introduction of academic work with tutors taking time to build up her child’s trust.
57. Ms X told me she has not been able to return to her job and tries to provide education herself using workbooks. She spends money on cooking and baking and on activities such as swimming. She says sometimes her child cooperates with learning activities and sometimes it is very difficult, and she does not feel equipped to teach her child academics.
58. Ms X says while she receives some state benefits as a carer, her income is half what it was when both her children were in school. She has not been able to return to work due to her child having no school place.
59. Ms X told me she had never been offered a carers assessment and did not know what support social care could offer to parent carers or disabled children.
60. Ms X says her child is due to transfer to secondary education this year. The Council told me it reissued the EHC Plan naming a type of school in early 2024, giving Ms X a new right of appeal. The Council again consulted schools in Winter 2023/Spring 2024, but Ms X told me this was for a place in September 2024 and there is no expectation her child will return to school this school year. The consultation responses shared with me indicate the Council consulted one school in late 2023 and three in Spring 2024.
61. The Council told me in response to my first draft decision there were difficulties with sufficiency of specialist school places but it had a plan in place to address this. The Council told me it considered it had met its equality duties as it had allocated a SEN case officer and a Governance Board had oversight of EHC Plan matters. It said a school place was available and alternative education secured. The Council said it ‘regrets that this was delayed and has not always met s.19 requirements’.

Analysis

Jurisdiction

62. I have investigated the alleged fault from Autumn 2022 to date. While Ms X had a right of appeal to the Tribunal in Autumn 2023, I find it was reasonable that she did not use it as the Council had agreed to increase the amount of alternative education and find a specialist school place. Ms X agreed with this plan of action. As there was no dispute about needs or provision, there should have been no need for Ms X to appeal. The problem was the shortage of suitable placements. I have exercised discretion to investigate both the period before and after the amended final EHC Plan was issued in Autumn 2023.
63. I understand the Council reissued the final Plan in Spring 2024. Again, I consider it was reasonable for Ms X not to appeal. There remains no dispute about the type of school required. While Ms X is unhappy with the current level of alternative provision and continuing delay finding a school, the current waiting time for appeals means the Tribunal would not be able to resolve the dispute about interim s.19 education quicker than the Ombudsman.

Autumn 2022 review of EHC Plan

64. The Council has accepted delay in completing the review of the EHC Plan that took place in Autumn 2022. The Council’s decision at review was to amend the Plan. It should have completed this task and issued an amended final Plan within twelve weeks. Instead, it took twelve months. This was excessive delay and is fault.

Failure to provide a school place and special educational provision

65. The Council issued an amended final EHC Plan in Autumn 2023 that named a type of school ‘specialist’, but not a specific school, although it had had a year to find a school. Section 42 of the Act requires councils to secure provision in Section F of an EHC Plan. The Code (9.132) says the Council is only relieved of this duty, including securing a place in a school named in the Plan (my emphasis) if the child’s parents have made alternative arrangements, say in an independent school or at home. Where a Council names a type of school it should secure a place in that type of school for the child to attend. The Council has failed to do so. This is service failure.
66. The Council also had a duty under Section 42 to provide all the special educational provision in Section F of the EHC Plan. It has failed to do, this is fault. The Ombudsman expects councils to provide as much of the special educational provision as possible in a home or alternative setting even where a child cannot attend school.
67. The Council told me sufficiency of special school places is a national problem. I acknowledge it has a plan in place to address this issue locally, however the Council consulted only five schools in fifteen months. There were also long gaps when no consultations were sent. We would expect councils to make a sustained effort to find a place for a child once it is identified they require a move from their current special school and if consultations are unsuccessful to proceed to expand the search to a wider area and to include independent special schools. It is now almost two school years since Ms X’s child has had an accessible school place, this is excessive delay and is service failure.

Failure to provide s.19 education

68. As well as the failure to provide a school place and special educational provision, the Council failed to provide the usual education that all children expect to receive. This was fault. Statutory Guidance ‘Alternative Provision’ says pupils in alternative provision should receive the same amount of education as they would receive in a maintained school. Ms X’s child has received no academic tuition since Autumn 2022. This is fault.
69. The Council recognised its offer of alternative education was inadequate in Summer 2023 because it offered a symbolic payment as a remedy for the lost education between Autumn 2022 and June 2023. Despite recognising the Council’s education offer of 1.5 days was inadequate and had caused significant injustice, and agreeing to increase it, the Council has allowed the same fault and injustice to continue from June 2023 to date.
70. The Council told me in response to my draft decision it delegated the sourcing of alternative provision to the specialist school as the school staff knew Ms X’s child best but accepts it should have monitored this more closely and accepts the provision has a ‘lack of academic focus’. The Council says Ms X’s child has a long history of struggling to engage with anything adult led, struggles with change and is demand avoidant.
71. The legal duty under s.19 Education Act remained with the Council. It could not delegate its duty to the school. In R (on the application of Y) v Croydon LBC [2015] the Court said what education is required is primarily a question for the Council to determine, including if relevant in the light of an EHC Plan. The Court said s.19 requires councils to consider the circumstances of the individual child including their age, ability, aptitude and any special educational needs they may have. S.19 not only requires arrangements to be made to ensure suitable education was received on a long-term basis it also required education to be provided straightaway. I consider than even if it was reasonable to have started with a low level of alternative education of one day a week at a Forest School and half a day of ‘buddy’ support, the Council should have kept this under review and looked to increase provision as soon as possible including academic learning and provision of special educational provision in the EHC Plan. If the provider of the half day education was not successful in engaging Ms X’s child in academic learning, then this should have been recognised at an early stage and alternatives considered, including whether more specialist support was required. It was also a reason to have ensured a suitable special school place was found as soon as possible. I acknowledge that Ms X’s child has significant needs, but they are not unique, and the law under s.19 and s.42 still requires councils to secure suitable provision adjusted for the individual child.

Poor communication

72. The Council has acknowledged it did not meet expected standards of communication and apologised. However, despite a Manager being allocated to her case, Ms X is still waiting to be told when a school place will be found and still waiting for a fulltime education package to be put in place. There is little evidence of any progress being made on the case between the stage two response in June 2023 and Spring 2024. The Council re-consulted one school in Winter 2023 but did not consult any other schools until Spring 2024. This is fault.

Social care

73. I acknowledge from the information provided by the Council that Ms X did decline social care assessment in 2022 and stated at that time the family had enough support. The final EHC Plans state that no social care needs were identified at reviews but did signpost Ms X to the local offer if she considered support was needed.
74. However, Ms X’s child was then out of school for over 5.5 terms. Ms X says she was unable to return to work due to her child being out of school. Her child has become socially isolated. There has been an impact on a sibling and the whole family. There may be unmet social care needs. It is apparent when I spoke to Ms X she was unaware of short breaks and Parent Carer Needs Assessments.
75. Government guidance is that it is good practice to consider multi-agency involvement when a child is unable to attend school. I consider that if the Council had monitored the alternative provision and taken a multi-agency approach, as is expected by Government guidance, that Ms X’s needs as a carer would have been recognised; although I acknowledge that Ms X may not have accepted a Parent Carers Need Assessment, one should have been considered and offered.

Equality Act

76. Ms X’s child is disabled and has SEN. The Council’s equality duties were therefore engaged. I have not seen evidence the Council considered its duties to eliminate discrimination and advance opportunity when it decided not to provide Ms X’s child with any academic education, failed to secure their EHC provision to the extent that was possible at home, failed to review or increase alternative provision, and failed to widen its search to secure suitable schooling for a period approaching two school years.

Injustice

77. The period covered by my investigation is September 2022 to date.
78. Ms X has provided many additional hours of unpaid care per week to her child, been unable to work as she did previously, and incurred expense due to her child now being permanently at home.
79. Ms X has been unable to provide the same time and attention to her other child due to the additional demands of caring.
80. Ms X has incurred time and trouble bringing her complaint to the Ombudsman even though her complaint was upheld at local complaint stage. It should not have been necessary for Ms X to come to the Ombudsman as the Council having identified it was at fault should have fixed the problems upstream.
81. The Council has made a payment for the period up to June 2023, which I consider below.
82. No payment has been offered for period from June 2023 to date; I consider that a further payment is appropriate.
83. I consider the payment of £500 for Ms X’s own injustice in terms of the uncertainty and frustration is insufficient. It does not take account the full impact on Ms X as set out above.
84. The Council has offered a symbolic payment of £2400 for three terms of missed provision in the academic year 2022-23 (£800 per term). This takes into account 1.5 days per week of alternative provision was in place. The Ombudsman’s Guidance on Remedies recommends a payment for the benefit of the child of between £900 and £2400 per term depending on whether the child has SEN, how much educational provision was in place and whether additional provision can now remedy some or all of the loss. I consider £800 per term is not an appropriate level of remedy. There has been no academic tuition. The child has SEN and is approaching a key phase transfer. There is no prospect of the child returning to school this school year, and when tuition does start it will have to be built up gradually due to the length of time the child has been left without any academic education, meaning a further delay before fulltime education is achieved.

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Agreed action

Within four weeks of my final decision:

85. The Council will apologise to Ms X and her child for the fault identified in this decision statement.
86. The Council will pay Ms X a further time and trouble payment of £200 for the failure to implement its own complaint outcome in June 2023, requiring Ms X to bring an already upheld complaint to the Ombudsman. This payment is in addition to the £300 offered in June 2023.
87. The Council will pay Ms X £1500 for the impact on her of being unable to work, the additional caring demands and the uncertainty and frustration for the period her child has been without suitable education. If the previous offer of £500 has already been paid this should be deducted from this sum.
88. The Council will pay Ms X on behalf of her child £8800 to acknowledge the impact of lost education, being calculated at £1600 per term x 5.5 terms. If the previous offer of £2400 has already been paid this should be deducted from this sum.
89. The Council will offer Ms X a child in need / parent carer needs assessment.
90. The Council will expand the search for a suitable school to a wider area and to include all independent specialist provision. The Council should keep Ms X updated of all consultations and responses.
91. The Council will take immediate steps to increase alternative education, including the introduction of academic tuition. This should be done sensitively in discussion with Ms X and her child with the provision reviewed at least every four weeks and increased as soon as possible. Once a specific school is identified the Council should also involve the intended placement and put in place a plan for a gradual and effective transition.

Within two months of my final decision:

92. The Council will review lessons from this complaint, in particular how the situation can have been allowed to continue even after a complaint was fully upheld, a large remedy payment authorised, and the case was being held by Managers.
93. The Council will ensure it has processes in place to ensure multi-agency working when a child is out of school for an extended period to include consideration of child in need / parent carer needs assessments where the child is disabled.
94. The Council will ensure it completes annual reviews on time.
95. The Council will ensure it has processes in place to ensure regular reviews are held where children are out of school and not in receipt of suitable fulltime education and that actions are followed up.
96. The Council will provide us with evidence it has complied with the above actions.

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Final decision

97. I have completed my investigation. There was fault and delay in completing an annual review and a failure to provide suitable fulltime alternative education and special educational provision in an EHC plan over 5.5 terms. This continued even after the Council admitted the fault. The fault has caused significant injustice to the whole family and loss of education to the child. I consider that the above agreed actions are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman