Summary: Mrs X complained about how the Council failed to provide suitable education for her son, Y. There was fault with the Council’s actions. It was responsible for delays following a review of Y’s Education Health and Care plan, failed to properly consider whether it needed to make alternative arrangements for Y’s education and communicated with Mrs X poorly. This caused Mrs X avoidable worry, frustration and distress. The Council agreed to apologise, pay Mrs X a financial remedy and issue reminders to its staff.

The complaint

1. Mrs X complains the Council has failed to provide a suitable education for her son, Y, since October 2021. She says the Council:
• produced an inadequate Education Health and Care plan for Y in 2022;
• failed to review that plan when Y’s school placement broke down;
• failed to provide suitable alternative education when Y stopped attending school;
• took too long to issue an amended EHC plan after it did carry out a review; and
• communicated with her poorly and ignored messages from her.
2. As a result, Mrs X says Y went without suitable education and missed opportunities to develop, both she and Y were caused significant upset, frustration and inconvenience, which affected her mental health, and delayed her appeal rights. She wants the Council to apologise, arrange suitable education for Y and make up for the education he has missed.

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The Ombudsman’s role and powers

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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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)
8. 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.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
11. 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

12. I have not investigated events before May 2023. Mrs X’s complaint about those events are late and I am not satisfied there are good reasons to investigate those earlier events now.
13. I have also not investigated any education Mrs X missed because of the Council’s decisions about Y’s EHC plan or the school he should attend. Mrs Y had the right to appeal to the SEND Tribunal about Y’s EHC plan. We decided, in a previous investigation, that it would have been reasonable for Mrs X to have used her appeal rights.
14. I have investigated the other parts of Mrs X’s complaint.

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How I considered this complaint

15. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint any the supporting information it provided; and
• relevant law and guidance.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
17. 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 found

Education health and care plans

18. 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. 
19. 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)  
20. 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.
21. 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) 
22. 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.
23. 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.
24. 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.
25. 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)
26. 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.

Alternative education provision

27. 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.
28. 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)
29. 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
30. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason the prevents them from attending;
• 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.

31. 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.

Background

32. Mrs X’s son, Y, has special educational needs. Y’s EHC plan from late 2022 said he should attend School A, a mainstream school. However, Y has not attended that school since 2021. Mrs X says School A, or any mainstream school, is not suitable for Y; she wants him to attend a special school instead.
33. School A held a meeting to review Y’s EHC plan in October 2023. At that review, both School A and Mrs X agreed that Y should be in a different school. During the meeting, the School says it told the Council it intended to remove Y from its school roll because he had not attended for over a year.
34. The Council’s records show that School A sent it the report from the meeting around two weeks after the meeting took place. However, the Council did not tell Mrs X about whether it planned to make changes to Y’s EHC plan until late December 2023.
35. Although it sent Mrs X a draft of Y’s EHC plan around that time, the Council did not issue a final amended EHC plan until September 2024, after Mrs X had complained to the Ombudsman. In the plan, the Council said Y should attend a different mainstream school, School B.

My findings

36. I cannot investigate any education Y missed before October 2023, since this was related to Mrs X’s disagreement that Y should attend the school named in his EHC plan. Mrs X had appeal rights about that decision and we decided in a previous investigation that it would have been reasonable for Mrs X to use those rights.
37. It is also not the Ombudsman’s role to decide what education the Council should provide for Y or whether his school place was suitable. That was for the Council to decide. The Ombudsman’s role is to consider whether the Council made its decisions in the right way.
38. The Council knew, in October 2023, that School A had removed Y from its school roll. While there is evidence the Council considered it was wrong for the School to do this, since School A was still named in Y’s EHC plan, there is no evidence the Council took immediate steps to have School A readmit Y. The failure to take action when it knew that Y’s school place was no longer available to him was fault.
39. There is also no evidence that the Council considered whether it had a duty to provide alternative education provision for Y, after School A removed him from the school roll. This was also fault.
40. However, I do not consider these failures made a difference to the outcome. The Council had no evidence to say that Y could not attend school due to medical reasons or for other reasons not connected to his special educational needs. The evidence shows the Council considered mainstream school suitable for Y throughout 2023 and 2024, and that it still considers this to be the case. There is also evidence to show that the Council was considering enforcing Y’s attendance at school during 2023, though it ultimately decided not to prosecute Mrs X.
41. There were several delays connected with the October 2023 annual review:
• The Council should have ensured the review meeting took place early enough for it to make a decision on the review by early September 2023. However, the meeting did not take place until October. The Council should have ensured the review took place at least a month earlier than it did.
• Following the review, the Council should have sent Mrs X its decision about the review within four weeks; by early November 2023. However, it did not send her the amendment notice until late December 2023; over seven weeks late.
• After it issued the amendment notice, the Council should have issued a final amended EHC plan within eight weeks. However, it did not send this to Mrs X until September 2024; a further delay of nearly 30 weeks.
42. Overall, there were delays of around nine and half months. Those delays were fault which caused Mrs X significant avoidable frustration, upset and distress. It also delayed Mrs X’s right to appeal the content of Y’s EHC plan and the school it named.
43. The Council also accepted that its communication with Mrs X was poor over the period I have investigated. The Council did not keep Mrs X informed about the progress of Y’s EHC plan and I am satisfied there were likely times that the Council did not respond to Mrs X’s messages. That was fault which caused MRs X further avoidable distress, on top of that caused by the delays.
44. The Council has now issued a final education health and care plan. Mrs X has the right to appeal the content of that plan or named school place to the SEND Tribunal.

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Agreed action

45. Within one month of my final decision the Council will:
• apologise to Mrs X for the avoidable distress caused by the delays following the October 2023 review, delay to her appeal rights and poor communication with her over an extended period of time;
• pay Mrs X £800 to recognise that distress.
46. 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.
47. Within three months of my final decision the Council will remind relevant staff of the importance of:
• complying with the statutory timescales following a review of an EHC plan;
• promptly taking action to secure the provision in EHC plans when it knows this is no longer being provided; and
• properly considering and recording their decisions about whether the Council needs to make alternative education provision for children who are not attending school.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. The Council was responsible for delays following a review of Y’s EHC plan, it failed to properly consider whether it needed to make alternative arrangements for Y’s education and communicated with Mrs X poorly. This fault caused Mrs X avoidable worry, frustration and distress. The Council agreed to apologise, pay Mrs X a financial remedy and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman