Summary: There was fault by the Council in failing to secure all the special educational provision on Y’s Education, Health and Care Plan between September 2023 and July 2024 causing a loss of educational provision. Complaint handling was not in line with the Council’s procedures, causing avoidable distress and time and trouble. The Council will apologise, make payments for Y and Ms X and will remind officers about their discretion to accept late requests from a complainant to escalate to the final stage of the complaints’ procedure.

The complaint

1. Ms X complained the Council:
1. Failed to secure all the special educational provision (SEP) in her child Y’s Education, Health and Care Plan (EHC Plan);
2. Did not ensure an early annual review of the EHC Plan took place; and
3. Provided a poor response to her complaint.
2. Ms X also complained the Council:
1. Ignored Y’s special educational needs for many years;
2. Did not review Y’s care provision since 2016 despite a change in need;
3. Ignored primary school’s concerns and its request for a change of provision;
4. Did not ensure Y had a suitable space at home; and
5. Ignored professional advice resulting in a placement in a mainstream school which was not suitable.
3. Ms X said this caused avoidable distress and a loss of educational provision for Y.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. The law says we cannot normally investigate a complaint when someone has or had 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)
7. 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)
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)
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 have and have not investigated

10. I have investigated the complaints in paragraph one. I have not investigated the complaints in paragraph two because:
• Complaint 2(a) to (c) are late and there is no good reason for the delay in complaining to us;
• Ms X has not raised complaint 2(d) with the Council; and
• It was reasonable for Ms X to have used her right of appeal to the SEND Tribunal to challenge the mainstream placement named in Y’s EHC Plan in complaint (2e).
11. The timeframe for my investigation is January 2023 to July 2024. Where I refer to things which happened outside this period, it is for context only.
12. Ms X complained to us in January 2024. The Council told us she had not completed all stages of its complaint procedure, so we decided not to investigate as the Council had not had a reasonable opportunity to respond. Ms X complained to us again in July and we decided to investigate, as she had completed both stages of the Council’s procedure.

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How I considered this complaint

13. I considered Ms X’s complaint to us, the Council’s responses and documents set out in this statement. I discussed the complaint with Ms X.
14. 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

What should have happened

15. The Council’s two stage corporate complaint procedure says:
• It provides a stage one response within 15 working days of receiving a complaint;
• If a complainant is unhappy with the stage one response to their complaint, they have to explain why within one month from the date of the response;
• It provides a stage two response within 20 working days; and
• It may be necessary to extend timescales if a complaint is complex. It will keep the person informed.
16. 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 including Section F – special educational provision (SEP) and Section I – educational placement. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

17. The council has a duty to make sure the child or young person receives the SEP set out in section F of an EHC Plan (Section 42 Children and Families Act 2014). 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)  
18. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

19. 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.
20. There is no legal right to an early or emergency annual review, but councils may decide to hold one if there is a need for a change of placement because a placement has broken down.
21. Where an EHC Plan names a school and the parent decides to educate the child at home, the Council is not under a duty to secure the SEP in the Plan as long as the parent has made satisfactory arrangements (SEND Code of Practice, paragraph 10.32)

What happened

Background

22. Y is autistic and has had an EHC Plan for several years. Ms X home schooled Y from June 2022 to September 2023, although the Council’s EHC Plan had her educational placement as mainstream primary school. Y was due to transfer to secondary school in September 2023.

2023

23. The Council issued a final EHC Plan in February 2023, naming the existing primary school as Y’s educational placement until September and School A (a mainstream secondary school, Ms X’s preferred school at the time of the annual review meeting in September 2022). Provision in Section F included:
• 10 hours a year of speech and language therapy; programme to be devised by the speech and language therapy (SLT) service and delivered by school staff;
• 4 hours a year of SLT time for the therapist to train school staff, review, write plans, attend meetings; and
• Education provision in School A’s resource base receiving targeted support and some small group provision.
24. The Council issued another final Plan in September 2023 naming School A as Y’s educational placement. SEP in Section F was the same as the February Plan.
25. Ms X and an adviser supporting her sent a number of emails to the Council’s SEND Team between June and September saying:
• School A had told Ms X in March it could not meet Y’s needs;
• Ms X was aware School A needed to challenge Y’s admission through the formal process or hold an early annual review; and
• Ms X wanted a change of placement to School B.
26. The Council replied to the emails saying:
• School A could do an early annual review after October half term and ask for a change of placement if appropriate;
• School A had not told the Council it could not meet Y’s needs and had not formally challenged Y’s admission; and
• School B did not have any places.
27. Ms X did not send Y to School A. She said in emails to the Council this was because School A had said it could not meet Y’s needs and had refused to let Y attend a summer event for new students going into year 7.
28. An officer from the SEND Team attended a meeting at School A with Ms X at the end of September because Y was not attending any school. Emails between School A and the SEND officer indicate the officer apologised for the SEND Team’s poor communication and liaison during Y’s transition. The SEND officer confirmed the Council would make payments for tuition for Y £2500 for September and October and £1250 each month until Y was 'off-rolled’. (Off-rolling is not a legal term. It is the practice of removing a child from the school roll without excluding them.) School A replied saying Y was not on its roll as her mother had never sent her there. School A said it was completing a Child Missing Education form. (There is no evidence it did).
29. The Council consulted 10 educational placements in October and November 2023, including School B, Ms X’s preference. School B responded to the consultation saying it needed more information about why School A was not successful. The other schools either did not reply despite chaser emails from the Council, declined to offer a place or said they were full.
30. Ms X complained to the Council at the end of October. The Council responded at the start of November saying:
• The annual review meeting took place in September 2022. She completed a form setting out her preferred secondary schools for Y: Schools A, B and C. The Council named School A on Y’s final EHC Plan;
• School A did not hold an emergency annual review, but there were meetings between the SEND Team, her and School A that facilitated the process of identifying another school for Y;
• As Y was not currently in school, it would be difficult to implement provision in her EHC Plan, including speech and language therapy;
• The Council was consulting with placements including her preference and would update her with responses; and
• It was sorry tuition had not started. Tuition would be starting on 15 November (arranged by School A).

2024

31. Ms X tried to escalate her complaint to stage two of the Council’s complaint procedure in January. It replied saying she could not do this because her request was late. The complaints team said they had treated Ms X’s email as a new complaint under stage one of its procedure.
32. Ms X complained to us (also in January). We told her she needed to complete all stages of the Council’s complaint procedure before we would consider an investigation.
33. The Council’s (second) stage one response in February said:
• Weekly meetings took place with Y’s school, Ms X and a SEND officer. The meetings were to provide updates on school placement consultations and support;
• As set out in the previous stage one response in November, the Council has a legal responsibility to provide children with education. It had arranged tuition which started on 15 November. This was in line with its legal responsibilities;
• It had consulted with schools. They had all refused to offer Y a place; and
• It was working with School B and hoped it would offer Y a place for September 2024.
34. The Council issued a final amended EHC Plan in March 2024 naming School A until July and School B from September.
35. Ms X complained to us again in April. We asked the Council to confirm it had completed all stages of its complaint procedure. The Council told us it had sent her a stage one response in February and Ms X had tried to escalate to stage two while the stage one was in process. We told Ms X she needed to complete the Council’s complaint procedure.
36. Ms X told us she had been unwell in May. She said she asked the Council to go to stage two at the start of June. She said the Council asked for additional time to provide the stage two response.
37. The Council’s stage two response in July said:
• The weekly meetings no longer happened because the case officer had left. However, she had been kept updated about school placements;
• Y’s EHC Plan named School B as her placement from September 2024; and
• It was sorry for the delay in securing a specialist placement and for the reduction in communication which was due to staff shortages.
38. Ms X complained to us again in July as she was not satisfied with the Council’s latest response to her complaint.

Y’s educational provision between September 2023 and July 2024

39. The Council’s records indicate the funding panel refused requests for provision or agreed a lump sum. The Council has not provided evidence about what Y was actually getting in terms of weekly hours or the form of provision (tuition/mentoring etc). There is no evidence from the Council of what was actually secured and delivered for Y. The Council also sent me email chains between officers and tuition providers. These do not show what provision was delivered for Y between September 2023 and July 2024.
40. I asked Ms X to summarise the educational provision Y had between September 2023 and July 2024. She told me:
• Tuition started on 20 November 2023. At first it was two days a week for one hour
• Tuition increased to two hours a day, five days a week.
• Tuition stopped suddenly at the end of March 2024. Because the tuition provider did not get paid. Y was having three hours a day, five days a week in March; and
• Between November 2023 and February 2024, Y did not get any sessions for around 12 to 14 days because payment was late.

Findings

The Council failed to secure all the SEP in Y’s Education, Health and Care Plan (EHC Plan).

41. Y was educated at home during the period January to August 2023. The Council did not have any duty to secure the SEP on her Plan.
42. The Council was at fault between September 2023 and July 2024. It had a duty under Section 42 of the Children and Families Act 2014 to secure all the provision on Y’s EHC Plan. We expect councils to provide oversight, which may include making sure provision is available (either by securing suitable alternative provision or taking action against a parent to secure their child’s attendance) when made aware there is an issue. In Y’s case, the Council was aware in September 2023 that Y wasn’t attending School A (because School A told it). The Council arranged two hours a day of tuition between November 2023 and March 2024, but this was not full time and did not reflect the group provision or SLT in the Plan. The evidence indicates Y had no SEP or any form of education between:
• September to October 2023 and
• April to July 2024.
43. This was not in line with the duty in Section 42 of the Children and Families Act 2014 and is fault causing Y a loss of educational provision.

The Council did not ensure an early annual review of the EHC Plan took place

44. There is no legal right to an early or emergency annual review, so I do not regard the failure to ensure one took place to be fault.
45. The Council and School A held a meeting at the end of September 2023. While this was not an emergency annual review meeting, the outcome was the Council accepted a change of placement was needed and began consultations. It consulted with Ms X’s preferred placement, School B, but there were no spaces until September 2024. The Council amended Y’s final EHC Plan to name School B in March 2024. This was the outcome Ms X sought. And although a placement was not available until the following September, this was not within the Council’s control. There is no fault (and no injustice)

The Council provided a poor complaint response

46. The Council is at fault because:
• It dealt with a request for escalation to stage two as a fresh complaint. This was not in line with its published procedure. The Council should have considered whether or not to accept the stage two request as a late one. This caused Ms X confusion and frustration; and
• The stage two response did not identify the Council’s ongoing duty to ensure Y was receiving all the provision in Section F of her EHC Plan and ensure that equivalent provision was in place or offer an appropriate financial remedy for missed educational provision.

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Agreed action

47. To remedy the injustice, within one month of my final decision the Council has agreed:
• A payment of £6000 to reflect Y’s lost SEP. I have taken into account the limited tuition Y received for part of year seven, which was less than full time and did not include any peer group interaction or speech and language therapy in her Plan;
• A payment of £500 to Ms X to reflect her avoidable distress and time and trouble complaining;
• An apology. 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 I have recommended in my findings; and
• A written reminder for all officers dealing with complaints that they have discretion to accept late requests for escalation to stage two. And, that a request for escalation of the same complaint that has already had a stage one response, should not be processed as a new stage one complaint.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. There was fault by the Council in failing to secure all the special educational provision on Y’s Education, Health and Care Plan between September 2023 and July 2024 causing her a loss of educational provision. Complaint handling was not in line with the Council’s procedures, causing avoidable distress and time and trouble. The Council has agreed an apology, payments for Y and Ms X and a reminder to officers about their discretion to accept late requests from a complainant to escalate to the final stage of the complaints’ procedure.
50. I completed the investigation

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman