Summary: Mrs X complained about the way the Council has dealt with her son, Mr S’s, Education, Health and Care Plan and educational provision since November 2023 when his Plan was transferred. She said this caused her distress and negatively affected Mr S’s mental wellbeing. We found the Council was at fault for not following the statutory procedure during the two most recent annual reviews for Mr S. The Council agreed to apologise, pay Mr S for the education he lost and make service improvements.

The complaint

1. Mrs X complained that following the transfer of her son’s Education, Health and Care (EHC) Plan from another Council in November 2023, the Council failed to follow the statutory procedure to ensure her son, Mr S, had access to a full-time education.
2. Mrs X says that as a result her son missed out on education, therapy provision included in his EHC Plan and contact with his peers. Additionally, the situation caused Mrs X avoidable distress and put financial pressure on the family.
3. Mrs X would like the Council to issue an updated EHC Plan now and secure the necessary education and therapies for Mr S. She would also like the Council to pay for the education and the therapies that Mr S missed since November 2023.

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The Ombudsman’s role and powers

4. 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)
5. 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.
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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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs X and the Council have 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

EHC Plans

9. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
10. An EHC Plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health, and social care.
11. The Ombudsman can look at:
• delay in the assessment;
• creation of an EHC Plan; and
• the failure by the Council to deliver the provision within an EHC Plan, as long as they are not connected to, or a consequence of, an appeal.
12. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
13. When a child moves to another Council, the new Council should inform the child’s parents within six weeks of receiving the plan if it proposes to make a new EHC needs assessment or review the EHC Plan. (Special Educational Needs and Disability Regulations 2014) 

Alternative Provision of education for children

14. 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))
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
16. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
17. The education provided by a council must be full-time unless a 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)
18. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
19. 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 (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
20. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
21. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
22. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

23. Around March 2022 the Council communicated with another Council to decide who would be responsible for Mr S’s Education and Health Care needs assessment. The two Council’s agreed it would be the other Council.
24. In June 2023 the other Council reviewed Mr S’s EHC Plan and realised that it should have not been the one responsible for it.
25. In November 2023 the other Council transferred Mr S’s EHC Plan to the Council to take over maintaining it.
26. Mr S began accessing one hour a week of one to one time with a teacher at his school. Mrs X told the Council this was the case in late November. From mid-November 2023 the Council should have ensured that Mr S was accessing the provision from his EHC Plan following the transfer.
27. At the end of the month Mrs X told the Council that she wanted Mr S to access specialist provision. She considered he should not remain in a mainstream school as so far it had failed to meet his needs.
28. In early December the Council told Mrs X that it would copy Mr S’s old EHC Plan into its format and amend the type of school it named from mainstream to a specialist placement.
29. In January 2024 she again asked the Council to find a specialist provision for Mr S and complained about the delay in securing provision, issuing his plan and the lack of communication about progress. At the end of the month the Council issued Mr S’s draft EHC Plan.
30. Mrs X shared her comments on the draft EHC Plan by mid-February 2024. She asked the Council to make changes to the draft Plan before she would agree to sign it.
31. In early March 2024 the Council did not agree to change the type of school for Mr S. It said that it would need more evidence about the interventions the school completed to integrate him back to school. Around this time, the Council drafted another EHC Plan for Mr S, but it seems this plan did not include all the changes from the emergency annual review in June 2023.
32. Mrs X contacted the Council again in April and raised further concerns. She said the draft EHC Plan the Council had sent her failed to take into account the information presented during the emergency review in June 2023. Because of this, the draft Plan the Council issued failed to meet Mr S’s needs.
33. In July 2024 the Council issued a third draft EHC Plan for Mr S, this one named the school he was currently attending as well as a specialist placement that was agreed a month prior. At the time, Mr S’s attendance was at 9%. Mrs X had no further comments on this draft.
34. The Council issued Mr S’s final amended EHC Plan in mid-August 2024. This plan also named two placements, the mainstream school which Mr S struggled to attend and a special school that the Council was in the process of securing.

Analysis

35. Following the transfer of Mr S’s EHC Plan to the Council in early November, it should have told Mrs X if it planned to amend the plan or carry out a reassessment of his needs. This did not happen and was fault.
36. The Council knew Mr S was not accessing full-time education and that it failed to take timely and purposeful action to address this. This is fault. It also accepted that in that time Mrs X funded some provision for Mr S, but she should not have to be responsible for this.
37. The Council accepted that it was at fault for this and offered £2,400 to remedy the education Mr S lost between March 2024 and July 2024. It offered a further £250 for the distress the Council’s actions caused Mrs X.
38. The Council was aware about Mr X’s situation since November 2023. It should have ensured that is considered its section 19 duties much sooner than it did. Because of this, we consider that Mr S has likely missed two terms of education between December 2023 and June 2024. The remedy the Council offered is suitable to remedy the injustice arising from missing one term of education. We recommend the Council should pay another £2,400 for the second term of education Mr X missed.
39. We consider the Council’s offer of £250 to recognise the distress its actions caused to Mrs X and Mr S is not suitable. We recommend the Council should pay her £500 for the distress she and S experienced as a result of the Council’s faults. This is because of:
• the significant amount of time Mrs X spent chasing the Council for updates from the Council: and
• the lack of consistent and transparent updates from the Council about the progress it made.

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Agreed action

40. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Mrs X and Mr S for the faults we have identified. The Council should ensure that its apology to Mr S is in a format suitable for his needs;
• pay Mrs X £500 to recognise the distress and uncertainty the Council’s fault has caused her and Mr S;
• pay Mrs X £4,800 in recognition of the education and SEN provision that Mr S missed between January 2024 and June 2024. The payment should be used for the benefit of Mr S’s education; and
• remind officers of the Council’s responsibility, under Section 19 of the Education Act 1996, to ensure children out of school receive full-time education provision, or the provision that is assessed to be in the child’s best interests. The Council should continue to review its decision about whether it owes a section 19 duties to make sure it steps in as soon as the duties are engaged.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. The Council was at fault for not checking if its section 19 duties to provide Mr S with access to full time education were engaged. It accepted failed to provide Mr S with suitable alternative provision between January 2024 and June 2024. This caused Mrs X avoidable stress and uncertainty and meant that Mr X missed out on two terms of provision. We recommended what the Council should do to remedy the injustice its actions caused to Mrs X and Mr S.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman