Summary: Ms X complained her son, S, has been out of school since December 2023. She says the Council has not communicated with her or kept her updated. The Council is at fault for delay finalising the amended Education Health and Care Plan for S, securing him a place in a new school and keeping Ms X updated. The Council has agreed to a remedy payment for distress and missed education.

The complaint

1. Ms X complained her son, S, has been out of school for ten months. She says the Council has not communicated with her or kept her updated. This has caused S to miss education and caused Ms X distress.

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The Ombudsman’s role and powers

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

5. I have only investigated Ms X’s complaint about the lack of education for her son and the Council’s poor communication. I have not considered the Education, Health and Care (EHC) Needs Assessment or the EHC Plan itself.

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How I considered this complaint

6. As part of the investigation, I have considered the complaint and the information provided by Ms X.
7. I have made enquiries of the Council and considered its response along with relevant law and guidance.
8. Ms X and the Council had opportunity to comment on my draft decision. I considered their comments before making a final decision.

What should have happened

The Education, Health and Care Assessment and Plan 

9. 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. 
10. 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.
11. 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) 
12. 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.
13. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Educational provision

14. 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.
15. 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)
16. 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)

What happened

17. I have summarised below the key events; this is not intended to be a detailed account.
18. The Council issued an Education, Health and Care Plan for S in April 2022. Under the plan, S was to receive support within his mainstream Primary School (School).
19. Ms X said there was an incident in mid-December 2023 at School. Following this, she did not feel the School could support her child and she refused to send him. The attendance records show S did not attend the School after this date.
20. The School held an emergency review at this time. The report shows S’s behaviour had escalated within the four weeks previous and staff were concerned for his safety and others within the school. The review said S’s Plan needed amending. It said the provision and placement did not meet S’s needs. The school emailed the report to the Council and said both the School and Ms X considered S needed a change of placement to best suit his needs.
21. In mid-January 2024, the School contacted the Council and said S had been absent since mid-December.
22. The Council prepared an updated draft Plan and sent this to Ms X in mid-January and sent consultations to her preferred school. The Council told Ms X that S was still on the roll at the School until the Council found a new placement for him.
23. At the beginning of February, Ms X’s preferred school responded to the consultation and said it did not have space for S. The Council sent a consultation to two more schools. Ms X reiterated that she would not return S to the School. The Council agreed to refer S to private tutoring to provide education while it continued to consult with other special schools.
24. At the end of February, home tuition started. Ms X said this did not work at home as there were too many distractions.
25. The Council arranged for the private tutoring to take place in a local Youth Centre. This was for three hours a day and started at the beginning of April. Ms X said the tutoring was ‘hit and miss’ and was not consistent. The Council said it has no evidence it delivered the tutoring as per S’s EHC Plan.
26. In mid-May, the Council wrote a list of alternative schools for S and sent this to Ms X to consider and sent consultations to preferred schools.
27. In the middle of July a special school offered S a place to start in September, the beginning of the academic year. The Council sent a copy of the Final EHC Plan to Ms X which named the new school.
28. Ms X said S has settled in well and the new school is wonderful. She said she cannot fault it. The registration certificate shows S’s attendance is 94%.

The complaint

29. Ms X complained to the Council at the beginning of February 2024. She said she pulled her son out of school in December because staff locked him in a room. She said the Council were to send consultations to new schools but she had not received any communication and did not know what was happening.
30. The Council issued a stage one response in the middle of February and a stage two response in June. The Council said ‘identifying a placement has not been straightforward’. It accepted there had been delay in the process which meant S did miss some education. It also accepted it should have provided Ms X regular updates. To remedy the uncertainty caused and in recognition of the provision lost, it offered a financial payment of £700.
31. Ms X complained to the Ombudsman in July 2024. She said S has been out of school for over seven months which has caused emotional distress, made worse by the Council failing to communicate and provide updates.

Analysis – is there fault causing injustice?

The assessment and plan

32. Following a review of the EHC Plan, the Council should send a copy of the amended plan to the parents for comment within four weeks. The Council sent the updated Plan in mid-January 2024. This is within the timescales.
33. The Council sent consultations to schools following receipt of Ms X’s preferences, but when it found these were not available in February, it did not then explore alternatives until May. It lost time consulting with schools and finishing the Plan. This is delay, this is fault.

Education provision

34. Ms X refused to take S to school following the incident in the middle of December. The review by the School said it did not consider it could meet his needs. During this time, S was still on roll at the School. In response to my enquiries, the Council said it ‘…accepts the placement would not have been appropriate in the long term however, we believe the school was equipped to deliver the provision in Plan while external professional advice, support and interventions were being sought, in the usual way.’ There was a still a place open to S at the School and he could have returned at any point.
35. The Council provided tutoring for S while he did not attend school. While this was not full time, it was on a one-to-one basis. The Ombudsman considers fewer hours of tuition can be satisfactory when provided in this way. Ms X said it was ‘hit and miss’ and the Council said it cannot evidence it fulfilled the requirements of the Plan. S also missed out on mixing with his peers. The Council did make education available to S, both through his original School and tutoring which it should be commended for, however the Council recognises this was not ideal. The lack of full-time education in a school environment is S’s injustice.

Communication

36. Ms X said the communication with the Council was ‘abysmal’. She said there were long periods of time when she received no updates on the progress of the case and often had to chase for information. As set out above there was a gap in communication about the progress of the Plan between February and May. In response to my enquiries, the Council said it did not provide updates as regularly as it should have done, this was because of high workloads and staff sickness. In its stage two response, the Council said it should have provided regular progress updates which it reiterated in its response to my enquiries. The Council is at fault for poor communication and failing to provide regular updates to Ms X. This has caused Ms X uncertainty as she did not know what the plan was going to be for S. The Council could have lessened this by providing updates. This is distress, this is injustice.

The Council’s package of remedies

37. The Council has already apologised for its poor communication and the delay in completing the Plan. It has also offered a financial remedy of £700 to Ms X.
38. I asked the Council to explain how it calculated the £700 remedy. It said this was essentially two payments.
39. £300 reflected the delay and uncertainty caused by the poor communication and slow progress of the case. The Ombudsman’s guidance on remedies suggests financial remedies of up to £500 for distress. The offer made by the Council is in line with our guidance on remedies, I consider this satisfactory.
40. The other £400 was for loss of educational provision. S had been out of school for roughly five months at the time of the complaint response (May 2024), during this time, he had received one to one tutoring since February. In response to my enquiries, the Council said it took extra time to update the Plan and name a school (which it did in July), so offered a further £200 remedy. The total offer is £600 which is roughly £100 per month of missed provision, or £300 per term.
41. The offer made by the Council is not in line with the Ombudsman’s guidance on remedies which suggests a financial remedy of between £900 and £2,400 per term. This is a sliding scale and depends on several factors. For example, the amount offered would be higher where the individual has lost a right of appeal to the tribunal or if the time out of school was when the child preparing for exams. This does not apply here. It also considers whether any education provision was made during the time. In this case, S was still on the roll at the School and the Council provided one-to-one tutoring, this reduces the amount we recommend as a financial remedy. Because there was provision in place, I recommend a remedy at the lower end of the Ombudsman’s sliding scale.
42. The Council explained it has made changes to help improve communication. It said the EHC team manager is conducting regular reviews, monitoring annual reviews and reallocating cases where members of the team are absent from work. They are also reviewing standard letters to set out the timescale and manage expectations about decision making and further communication. I am satisfied with these actions and do not need to make service improvements.

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Agreed action

43. Within four weeks of my final decision, the Council agreed to:
• Pay Ms X £300 for distress, as offered in its complaint response.
• Pay Ms X £2,000 in recognition of her sons missed educational provision. This payment reflects two terms at the lower end of the scale of the Ombudsman’s guidance on remedies.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. The Council is at fault for delay finalising the amended EHC Plan for S, securing him a place in a new school and failing to keep Ms X updated. This caused S to miss out on full time school education and caused Ms X distress. The Council agreed to remedies.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman