Summary: Mrs X complained the Council did not ensure her son, Y, received any education from when he was unable to attend school from May 2023. She also complained the Council did not follow the annual review process. Mrs X complained communication from the Council was difficult. Mrs X said she was distressed and frustrated by the Council’s actions and Y missed education. There was fault in the way the Council did not ensure Y received any education or EHC Plan provision for two academic terms, did not respond to the complaint in a reasonable time and communication with the Council was poor. This distressed Mrs X, frustrated her appeal rights to the Tribunal and she was put to time and trouble to complain. The Council has agreed to apologise to Mrs X and Y, make a financial payment and provide training to its staff.

The complaint

1. Mrs X complained the Council did not ensure her son, Y, received any education from when he was unable to attend school from May 2023. She also complained the Council did not follow the annual review process. Mrs X complained communication from the Council was difficult. Mrs X said she was distressed and frustrated by the Council’s actions and Y missed education.

Back to top

The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

EHC Plan

8. 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. 
9. 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 (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)  
10. 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. 

11. 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.
12. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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 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.
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
20. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative provision

21. 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.
22. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
23. 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)
24. 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
25. 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.

26. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

27. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
28. Y has complex additional needs and has an EHC Plan. He attended a specialist provision. The school held the annual review in March 2023. The Council did not attend. The annual review meeting report recommended the Council amend the EHC Plan.
29. The school excluded Y in May 2023 following an incident.
30. School arranged an interim review in June 2023. The Council did not attend. The school said the placement had broken down on safeguarding grounds. The school said it would need funding for a dedicated member of staff to consider Y attending. The review noted the Council should amend the EHC Plan. The school arranged for Y to continue with outdoor education and started one-to-one support at home.
31. The school sent the Council two funding requests in September 2023 and October 2023. The Council refused both requests.
32. Mrs X and the school continued to chase the Council for some support.
33. Mrs X complained to the Council in November 2023. She said the Council was ignoring her and the school. She said the Council had not issued an amendment notice or EHC Plan after the March 2023 annual review meeting or the interim meeting in June 2023.
34. In January 2024, the school served notice to the Council to end the placement. The notice confirmed the school would remove Y from its roll in February 2024.
35. The school arranged an annual review meeting in January 2024. The school asked the Council to consult with other provisions. The review report noted the Council needed to amend the EHC Plan.
36. The Council issued a draft EHC Plan two days after the annual review.
37. The Council started to consult with other education provision providers at the end of January 2024. It received no offers of a place for Y.
38. The Council responded to Mrs X’s complaint in February 2024. The Council apologised for the delay. It upheld the complaint about poor communications. It also upheld the complaint about not issuing amendment notices or an updated EHC Plan after the March 2023 meeting and the June 2023 meeting. The Council said it identified learning and would remind staff to respond to communication.
39. The school removed Y from its roll in February 2024.
40. Mrs X asked the Council to escalate her complaint to stage two in March 2023. She said the Council upheld her complaint but there seemed to be no consequence. Mrs X said the Council ignored her and it has not explained why. She said the Council was still not responding to her. Mrs X told the Council the school had removed Y from its roll, and he was not receiving any education.
41. The Council responded to Mrs X’s stage two complaint request a week later. The Council refused to escalate her complaint. The Council said it upheld the stage one response and it would not escalate the complaint because further investigation would not change the result.
42. The Council issued the final EHC Plan in May 2024.
43. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to take accountability for its actions, follow the requirements set out in law and improve communications.
44. In response to my enquiries the Council stated the school provided education until Y was taken off roll in February 2024. The Council accepted communication was poor.

My findings

Missed education and EHC Plan provision

45. The school provided Y with some alternative provision at first, including half a day per week at an outdoor education provision. The Council provided evidence the school provided some one-to-one support from December 2023. This does not evidence the school provided this support before this date. This is fault and Y missed education and EHC Plan provision for approximately one academic term.
46. Mrs X stated the one-to-one worker did not provide education. The Council confirmed the one-to-one worker did not provide education, but this was because Y could not access education. The Council cited Y’s EHC Plan which stated he could not engage with education and further work was required to develop his self-esteem and decrease his fear of failing academic tasks. The Council said this was why the one-to-one worker did not complete educational tasks but engaged with Y to increase his self-esteem to engage him with education later. The Council was satisfied this met Y’s needs. The Council was not at fault.
47. When the school removed Y from its roll in February 2024, the Council was responsible for ensuring Y received an education and the provision named in his EHC Plan. The Council did not arrange any provision. This is fault and Y missed education and EHC Plan provision.
48. The Council issued a final EHC Plan in May 2024. The final plan engaged Mrs X’s appeal rights to the SEND Tribunal. The courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the tribunal. I can only remedy the missed education and EHC Plan provision from February 2024 until May 2024, one academic term.

EHC plan and review

49. It is clear from the documentation, and the Council has admitted, there have been delays in this case. The Council has not written to Mrs X following the March 2023 annual review or the June 2023 interim review to explain if it would amend Y’s EHC plan. The law says it should do this, with the amendments it would make, within four weeks of the meeting. Not sending the letters is fault.
50. The Council issued Y’s updated EHC plan in May 2024, 14 months after the review that recommended its amendment. The guidance referenced in paragraph 15, requires the Council to send out the amended final plan eight weeks after the amendment letter. The Council should have issued the letter within four weeks. The total time to issue the amended final plan is 12 weeks. This is a nine-month delay. This is fault and frustrated Mrs X appeal rights to the Tribunal. Mrs X had no means to challenge the contents, or the placement named in the plan if she was dissatisfied with either.
51. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. 
52. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
53. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

Communication

54. It is clear from documentation, and the Council has accepted, communication had been difficult. The Council also accepted communication with the school was difficult. Mrs X has experienced delays and a lack of communication throughout this case. This is fault and frustrated Mrs X.

Complaint handling

55. The Council complaint policy states it should respond to stage one complaints within 15 working days. The Council took 71 working days to respond to Mrs X’s stage one complaint. This is fault and frustrated Mrs X.

Back to top

Agreed action

56. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for the distress and frustration I have identified in this case. Apologise to Y for not ensuring he received any education or EHC Plan provision for one academic term. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £300 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Mrs X £300 for the distress and frustration the fault identified in this case caused.
• Pay £2400 for not ensuring Y received any education or EHC Plan provision for two academic terms. This money should be used for Y’s benefit.
57. Within three months the Council should:
• Provide training to relevant staff on the importance of effective complaint handling.
• Provide relevant staff with training on the Council’s statutory duties regarding EHC Plans, the annual review process and alternative education provision.
• Provide training to all relevant staff on the importance of good communication.
58. The Council should provide evidence of the actions taken to satisfy the recommendations.

Back to top

Final decision

59. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman