Summary: Miss X complained about how the Council provided for her child, Y’s, special educational needs. There was fault in how the Council took too long to amend Y’s EHC plan following a review and how it failed to consider whether it needed to arrange alternative education for him. This caused Y to miss out on some education and caused distress and uncertainty to both Miss X and Y. The Council agreed to apologise, issue an amended EHC plan for Y and pay Miss X a financial remedy.

The complaint

1. Miss X complains about how the Council provided for her child, Y’s, special educational needs. She says the Council:
• failed to ensure Y received a full-time education since November 2021;
• failed to amend Y’s Education Health and Care (EHC) plan following a review in May 2023;
• failed to provide suitable alternative education when Y was unable to attend school from September 2023;
• should not have decided Y could attend a mainstream school from September 2023;
• took too long to issue a final EHC plan following an emergency review it carried out in September 2023; and
• communicated with her poorly, including taking too long to respond to her complaint.
2. As a result, Miss X says Y went without any education for several years. She also says she, Y and family experienced significant distress, her mental health has been affected and she became unable to work, causing a significant loss of income.
3. She wants the Council to arrange a special school place for Y, and to pay her compensation to recognise the impact on both her, Y and her family.

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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 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)
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. Miss X complained to the Ombudsman in July 2024 so her complaint about events before July 2023 are late. While I consider there are good reasons to investigate events from May 2023, I do not consider there are good reasons for earlier events.
13. I have also not investigated how the Council decided it should not amend Y’s EHC plan, or which school he should attend following the May 2023 review. Miss X had the right to appeal that decision to the SEND Tribunal, and I am satisfied it would have been reasonable for her to have used her appeal right. Therefore, I cannot consider how the Council made that decision or the consequences of that decision.
14. I have investigated the other parts of Miss X’s complaint.

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How I considered this complaint

15. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received 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)  

EHC plan reviews

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.

Appeal rights

25. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• 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.

26. 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)
27. 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.
28. 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.

Alternative education provision

29. 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.
30. 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)
31. 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
32. 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.

33. 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

34. Miss X’s son, Y, has special educational needs. He has had an EHC plan from the Council since mid-2022 but has struggled to attend school since before 2021.
35. The Council issued an amended EHC plan for Y in late 2022. This said he should continue to attend School A, a primary school, until September 2023, when he should move to School B, a mainstream secondary school.
36. Between late 2022 and early 2023, Y found it increasingly difficult to attend School A, until he stopped attending all together.
37. School A held the annual review of Y’s EHC plan in spring 2023. In its report of that meeting, School A told the Council that:
• Y had not attended school at all for several months;
• it had tried to support Y back to school, but this had not been successful;
• Y would likely not cope in a mainstream school setting, and the Council should name a special school for him to attend from September; and
• Miss X wanted Y to attend a particular special school, School C.
38. After it received the School’s report from the meeting in late May, the Council told Miss X it did not intend to make any changes to Y’s EHC plan. It confirmed this by letter to Miss X in late June 2023.
39. In September 2023, Miss X sent Y to School B, as this was named in his EHC plan. However, Y could not cope at School B and the School excluded him for several days because of his distressed behaviour.
40. The Council and School B agreed to hold an emergency review of Y’s EHC plan in mid-September 2023. Again, those at the meeting recommended Y attend a smaller, special school instead of School B.
41. Although the Council did not send Miss X a decision about the review at the time, it consulted with Miss X’s preferred school (School C) in mid-December 2023, and accepted the School’s offer of a place for Y in March 2024.
42. The Council formally told Miss X in mid-May 2024 that it intended to amend Y’s EHC plan, although it has not yet sent Miss X a final amended plan.
43. Y started at School C in early June 2024. Since starting at School C, Miss X says Y’s behaviour has improved significantly and he is attending school regularly, although not yet full time.

My findings

44. Miss X’s complaint about events before July 2023 is late. However, I am satisfied it is necessary to consider what happened from the May 2023 annual review to properly investigate what happened after July 2023. I am satisfied that is good reason to investigate events from May 2023 onwards.

Education between May and September 2023

45. I am satisfied the Council knew, in late May 2023, that Y was not attending school and had not been for some time. It also knew that School A had tried to reintegrate Y, but this has not been successful.
46. However, there is no evidence the Council considered whether it needed to take any action, to either:
• ensure Y was accessing the provision set out in his EHC plan; or
• decide whether it needed to arrange alternative education for him if he was unable to attend school.
47. I am satisfied the Council’s failure to act when it knew Y was not attending school was fault.
48. Y was struggling significantly with his mental health and behaviour at the time, and there were other things happening in his life at the time which contributed to those struggles. He had also not been attending school for several months. I cannot say what education Y would have taken part in, had the Council decided to arrange alternative education. However, there is a remaining uncertainty about whether Y could have had some education for the last part of 2022/23 school year and that is an injustice to Miss X.

Education from September 2023

49. I am satisfied the evidence shows the Council accepted, shortly after the start of the 2023 school year, that Y could not attend School B. It decided to search for, and later agreed, an alternative school placement for Y.
50. However, there is no evidence the Council considered what education it should have arranged for Y in the meantime. It focused on finding Y a suitable longer-term school place, but it failed to consider his ongoing education while it was doing so. That failure was fault.
51. For the period between mid-September and the end of 2023, the Council failed to consider whether it needed to arrange alternative education for Y while it was amending his EHC plan. However, for the same reasons as the period before September 2023, I cannot say what education Y would have been able to take part in. Therefore, I consider there is a remaining uncertainty about whether things could have been different.
52. The Council should have told Miss X what it had decided, following the emergency review, by mid-October 2023, and it should have issued a final amended EHC plan by early December 2023. However, it did not tell Miss X about its decision until May 2024, 31 weeks late, and it has not yet issued a final EHC plan. Those delays were fault.
53. I am satisfied the Council did not act promptly to amend Y’s EHC plan or find him an alternative school place, following the September 2023 review. The Council consulted with School C a few days after the date by which it should have issued a final amended EHC. It then took over two months to accept the offer from School C.
54. Had the Council acted within the statutory timescales following the review, I am satisfied Y would likely have started at School C in early January 2024. Therefore, I consider he missed out on around five months of education from School C.
55. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. I consider a remedy payment of £1,400 a term is suitable to recognise the education Y missed between January and May 2024, taking into account:
• that the education Y currently takes part in at School C is only part-time (due to Y’s needs);
• the extent of Y’s special educational needs; and
• that starting secondary school was an important part of Y’s education.

Communication and complaint handling

56. In its response to Miss X’s complaint, the Council accepted there had been “a complete lack of communication” with Miss X and that it had taken too long to respond to Miss X’s complaint. The Council also accepted this in its response to my enquiries.
57. I am satisfied the evidence shows the Council’s communication with Miss X about Y’s education, over the period I have investigated, was very poor. This added significantly to the distress and uncertainty she experienced.

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Action

58. Within one month of my final decision the Council will:
• issue Y’s amended final EHC plan following the September 2023 review;
• apologise to Miss X and Y for the significant distress and uncertainty caused by the failure I have identified above;
• pay Miss X £2,100 for the one and a half terms of education Y missed between January and May 2024 (inclusive). This is intended for Y’s future educational benefit;
• pay Miss X £1,000 to recognise the distress and uncertainty caused by its failure to consider whether it needed to arrange alternative education for Y between September 2023 and January 2024, and its poor communication with her since May 2023.
59. 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.
60. The Council should provide us with evidence it has complied with the above actions.
61. Since the events I have investigated, we have made several service improvement recommendations about EHC plan reviews, alterative education provision and communicating with parents of children with special educational needs. These recommendations are the same as the recommendations I would have made in this case. Because we have already made similar recommendations, I have not repeated them here.

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Decision

62. There was fault in how the Council took too long to amend Y’s EHC plan following a review and how it failed to consider whether it needed to arrange alternative education for him. This caused Y to miss out on some education and caused distress and uncertainty to both Miss X and Y. The Council agreed to apologise, issue an amended EHC plan for Y and pay Miss X a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman