Summary: Miss X complained that the Council failed to provide alternative education when her son was unable to attend school, that it delayed in completing the annual review process of her son’s Education, Health and Care Plan and the communication with her was poor. This meant that her son missed out on education, and she was caused avoidable distress and unnecessary legal costs. The Council had already found some fault, but the complainant was dissatisfied with the remedy offered for the injustice caused. The Council has agreed to make an increased symbolic payment for the lost education.

The complaint

1. The complainant, Miss X, complained to the Council that it:

1. failed to deliver the content of her child’s (Y’s) Education, Health and Care (EHC) Plan when he was unable to attend school from July 2023 to February 2024;
2. failed to update Y’s EHC Plan following an annual review in April 2023; and
3. failed to communicate with her about his EHC Plan.

2. The complainant says the matter caused her distress and financial hardship and meant Y missed out on education.
3. The Council upheld some aspects of this complaint and apologised and offered a remedy. But Miss X considered this was insufficient and she also wanted the Council to reimburse part of her legal fees which she said only became necessary because of the Council’s delays and failure to provide alternative education sooner than February 2024.

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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.
5. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
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).
7. 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

8. I have investigated the complaint from April 2023 when Y’s school, School B, said that it could no longer keep him safe, to March 2024 when the Council started to provide alternative education.

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How I considered this complaint

9. I have spoken to Miss X on the telephone and made enquiries of the Council. Miss X has commented on its response. I issued a draft decision statement to the Council and to Miss X and have taken into account their further comments before reaching a final decision.

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What I found

Relevant law and guidance

10. Parents have a duty in law to ensure their children receive an education. A failure to meet this duty on the parent’s part is an offence under Section 444 of the Education Act 1996, (the Act).
11. Penalty notices are interventions available to promote better school attendance and behaviour. They are fines imposed on parents as an alternative to prosecution for failing to ensure that their children regularly attend school.

Inability to attend education due to health needs

12. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
13. 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))
14. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]).
15. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.
16. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented and communicated promptly to the parents.

Special educational needs

17. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. A 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.

Annual reviews

18. 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.

19. Case law sets out that an amended final EHC plan should be issued no later than twelve weeks after the review meeting. R (L,M and P) v Devon County Council [2022]

Key facts

20. This is a brief account of events.
21. Y has an EHC Plan. His primary diagnosis is an autistic spectrum condition (ASC) and he has a complex profile of emotional and mental health needs. Y was placed at School B, under his EHC Plan, at the start of his secondary education.
22. Miss X says that she was concerned that the school might not be able to meet Y’s needs. Y is academically bright but very vulnerable. In 2022, he was referred to the Youth Treatment Team because he had become involved in a local street group involved in criminal activity.
23. In March 2023, School B confirmed in writing that Y required a specialist residential placement.
24. At the annual review at School B in April 2023, it was noted that Miss X considered School B could no longer meet Y’s needs. School B stated that it was concerned that it could not keep Y safe due to his involvement in criminal activity in the locality, and it considered he needed a placement outside the area. Miss X expressed a preference for two residential schools.
25. At the annual review, Miss X says it was agreed that there would be updated assessments to inform the proposed amended EHC Plan.
26. In April 2023, Miss X engaged the help of solicitors because she was anxious to ensure Y had a new school placement from September 2023. This was because Y was struggling to attend School B, and he was very vulnerable in his local area. He was also due to enter a key stage in his secondary education.
27. After the April annual review, the Council issued a notice stating it would amend the EHC Plan. It proposed that most sections of the EHC Plan needed amending. But section I (placement) would remain blank, although the Council stated it would be considering a change of placement.
28. At the end of June 2023, the Council issued a proposed amended EHC Plan. The then special educational needs (SEN) co-ordinator had not sought updated assessments and failed to progress the matter after June 2023. The Council has accepted this was fault.
29. School B excluded Y during the summer term of 2023 because of the risks his behaviours posed. In July there was a meeting with professionals where it was agreed there would be updated assessments. But this did not happen.
30. Miss X asked for an extension of time to mid-August 2023 to respond to the draft EHC Plan.
31. In September 2023, Y did not attend School B. Miss X asked for alternative education under s19. Miss X says that she continued to engage a solicitor to try to ensure Y was placed at a different specialist placement, and to be given alternative education in the meantime. Miss X says that it was not her intention to retain the help of solicitors for as long as she did. But she considered the Council was not responding to the seriousness of the situation and she was not told about the Council’s complaint procedures.
32. Miss X also says School B threatened her with penalties for Y’s non-attendance which might have affected her employment.
33. In early November 2023, Miss X made a formal complaint to the Council about the delays in finalising Y’s amended EHC Plan, and the failure to provide suitable alternative education. She also stated that there had been three changes of SEN caseworkers who had failed to meet their statutory duties to finalise Y’s EHC Plan.
34. The Council responded saying that School B could meet Y’s needs, and School B would provide additional supervision to better manage his risks in the community. The Council apologised for the delay in finalising the EHC Plan. It stated there was a new SEN co-ordinator who would be seeking updated assessments.
35. Miss X asked for her complaint to be escalated to stage two of the Council’s complaints procedure.
36. In January 2024, the Council sent its final complaint response. It stated that the previous SEN co-ordinator had failed to progress Y’s annual review, had not consulted other possible placements and this resulted in Y missing out on suitable education. The Council agreed to provide alternative education and to look at other school placements.
37. The Council agreed that there would be no fixed penalties for Y’s non-attendance at School B. It offered £100 per month for the missed education between September 2023 to February 2024 (£500), and £600 for the delay in dealing with the annual review process and the impact this had on Y and the family.
38. The Council was unwilling to pay Miss X’s legal costs, which she incurred from September 2023. The Council explained that it may consider providing financial redress in exceptional circumstances where the complainant had suffered a direct or indirect financial loss as a result of its actions or inaction. But the Council considered that, because Miss X had access to free, impartial advice through its local SEN advice centre, it was not necessary for her to appoint a solicitor.
39. In January 2024, having upheld Miss X’s complaint, the Council took prompt action to provide individual tuition under s19 to Y, and it sought an appropriate alternative school placement. But the Council did not consider a residential school was required and Miss X accepted that.
40. The Council found Y a place at a local school (School C), and the Council named School C in Y’s EHC Plan despite School C’s opposition to this. It issued a final amended EHC Plan in March 2024, naming School C. The Council provided alternative education (tuition) which continued through the summer holidays to help Y catch up.
41. Y started at School C in September 2024. Miss X has not appealed the final amended EHC Plan because she agrees with the EHC Plan. Y is settling well at this new school.

The Council’s complaint findings

42. The Council’s stage two complaint investigation upheld the complaints (a, b and c) which Miss X has made to the Ombudsman. It apologised to Miss X and offered a financial remedy which it considered was in line with our guidance.
43. But the Council has told the Ombudsman that it did not consider Y would have been placed at School C sooner (for the start of the new academic year, September 2023), but for the faults, because the Council was still investigating at that time the reasons why Y was not attending School B. It was not until January 2024 when Miss X shared with the Council the detrimental impact it would have on Y, and Miss X, if he had to return to School B, that the Council accepted it was not safe for Y to remain at School B.
44. The Council has used this complaint to improve its practices: provided training to ensure officers know that the Council is responsible for ensuring interim education while looking for alternative placement; brought in new procedures for handover of cases; and provided training for all relevant staff about writing EHC plans and improving its service.

Findings

45. To the Council’s credit, at stage two of its complaint consideration, it accepted fault and tried to remedy the situation. I have considered primarily the injustice caused to Y and Miss X by the Council’s accepted faults, and whether the remedy offered by the Council was sufficient.
46. There were delays in finalising Y’s EHC Plan after the annual review in April 2023. I consider that a final amended EHC Plan should have been issued by September 2023 (taking into account the request by Miss X for an extension of time to comment on the draft). Had an amended final EHC Plan been issued in September 2023, Miss X could have appealed to the SEND Tribunal. So, there was a lost opportunity here.
47. In addition, the Council has said in its complaint response that it should have provided suitable education to Y since September 2023 to February 2024, and it offered a remedy for this period of lost education. That is some acceptance by the Council that it considered School B was not accessible and available to Y as from September 2023.
48. Whether that also means Y could have been placed at School C earlier is speculative and I could not say a placement at School C would have been available in September 2023, or soon after, but for the Council’s faults.
49. But there was a loss of education for Y between September 2023 to February 2024 and I am also satisfied that Y was at a significant point in his school career when he would have had to decide on his General Certificate of Secondary Examinations (GCSEs) options. Any loss of education at this time would have had a detrimental impact.
50. Miss X is also saying that she incurred legal fees from September 2023 because the Council was not providing education to Y, and she was being threatened with penalties. Had she been fined for Y’s non-attendance at school, Miss X says that this would have affected her employment. Hence, she needed legal assistance to safeguard her employment and to ensure Y received interim education and an appropriate school placement.
51. However, Miss X accepts that it was her choice to engage solicitors initially. But, after September 2023, given the Council’s continued failures, she felt she required legal assistance. She has asked for a contribution to her costs.

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Agreed action

52. Miss X did not accept the remedy payment offered by the Council.
53. We have a wide statutory discretion in determining the nature and level of any remedy (ss. 30(1A) and 31(2B)-(2BA) of the Local Government Act 1974). In exercising that discretion, we apply our guidance on remedies most recently updated in July 2024.
54. 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.
55. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
56. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
57. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

58. The Ombudsman’s guidance on remedies in relation to professional fees says expenses may include professional fees, taking into account the following:
• complainants should not need a solicitor or other professional adviser to help them make a complaint to the Ombudsman or to the organisation. So, we are unlikely to recommend that fees for this purpose are reimbursed.
• there may be circumstances where it is reasonable for a complainant to have engaged legal help in a matter, particularly where it is complex. In such cases, we may consider recommending a remedy to reimburse costs which directly and necessarily flow from the fault identified. We will not do this where costs were wholly covered by the legal aid scheme and the complainant has no personal liability.
• we may recommend a contribution to costs rather than a refund of all the expenses. If we consider the amount of professional advice commissioned was disproportionate, or not all the advice arose from the identified fault, our recommendation will reflect this.
59. Within one month of the final statement, the Council will:
1. make a symbolic payment to Miss X of £2,400 for the lost education for the September 2023 term and £1,400 for the January and February 2024 school months to be used for Y’s educational benefit;
2. the Council apologized to Miss X for its faults. But the Council will make a further apology because we have upheld her complaint. But I have not recommended a further distress payment. I consider £600 is a suitable remedy for Miss X’s avoidable distress;
3. I have not recommended any service improvements because the Council has taken action already to improve its SEN services.
60. The Council should provide us with evidence it has complied with the above actions.
61. In respect of Miss X’s legal costs after September 2023, I consider that the failure to issue an amended EHC Plan on time, and provide interim education, has caused an injustice. But should the Council pay, or make a contribution, to Miss X’s legal costs as a result?
62. We do not normally consider councils should meet such costs because councils have complaint processes for these situations and there are SEN independent advice providers available.
63. Miss X complained first to the Council in November 2023. I appreciate that Miss X thought her solicitors’ letter of April 2023 should have alerted the Council to the severity of her concerns. She also says that she was not told of the complaints’ procedures. But information on how to complain to the Council is available on its website.
64. At stage one of the Council’s mid-November complaint response, it recognised that there had been a delay in finalising the EHC Plan and seeking additional assessments. But, at this stage, the Council was saying School B was the named placement and School B would provide additional supervision. So, Miss X remained anxious about the possibility of being served a penalty notice for Y’s non-school attendance.
65. In January 2024, at stage two of the Council’s complaint procedures, it accepted fault and importantly sought to arrange a school placement for Y and provide interim education. And it reassured Miss X that it would not be seeking to issue a penalty notice.
66. So, the Council’s complaint procedures worked in that appropriate action was taken to resolve Y and Miss X’s situation, albeit not as quickly as Miss X might have liked.
67. I accept that Miss X wanted to ensure Y received appropriate education. But I consider that she could have made a formal complaint sooner to the Council (which would have resolved the situation sooner) and that there are independent SEN advice agencies which she could have used. And, while the lack of education for Y was a significant concern, I do not consider the Council’s faults were such that it was necessary for Miss X to continue to engage solicitors.
68. Miss X would also have been informed of the costs of using legal assistance. She and her advisors would have been able to view our guidance on remedies on our website which is clear that we are unlikely to recommend reimbursement of legal fees. Therefore, Miss X had sufficient information to make an informed decision about the value of retaining her solicitor.
69. So, on balance, I have decided not to recommend the Council now reimburse the costs, or part of the costs, of Miss X’s legal advice between September 2023 to January 2024.

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Final decision

70. I find fault causing an injustice. The Council has accepted the findings and recommendations. So, I have completed our investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman