Summary: Mr and Mrs X complained their son has not received a suitable education or his special educational provision. Mr and Mrs X also complained about delays in the annual review process and in issuing an amended final Education Health and Care Plan. We found the Council’s failure to identify a suitable school placement or provide suitable alternative provision between September 2023 and July 2024 is fault. As is the delay in completing the annual review process and in issuing a final EHC Plan. This fault meant Z did not receive any education for a whole academic year. He also missed out on the provision in his EHC Plan. The Council has agreed to apologise, make payments to Mr and Mrs X, and take action to improve its service.

The complaint

1. The complainants, Mr and Mrs X complained their son has not received a suitable education or his special educational provision. Mr and Mrs X also complained about delays in the annual review process and in issuing an amended final Education Health and Care Plan.
2. Mr and Mrs X are represented by Ms Y.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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

9. Mr and Mrs X complain the Council has failed to provided their son with a suitable full time education since September 2021. However we would not investigate their concerns over this full period. We expect complainants to come to us within 12 months of them thinking the Council has done something wrong. As Ms Y raised Mr and Mrs X’s concerns with the Ombudsman in September 2024, we will consider events since September 2023.
10. It was open to Mr and Mrs X to raise concerns about the lack of full time education in 2021/ 2022 much sooner.
11. I am also unable to investigate events after the final EHC plan was issued in July 2024 as Mr and Mrs X have exercised their right of appeal to the SEND Tribunal.

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How I considered this complaint

12. As part of the investigation, we have:
• considered the complaint and the documents provided by Ms Y;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms Y
• Ms Y and the Council 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

Education, Health and Care Plan.

13. 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 council can do this.
14. 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.

Reviewing EHC Plans

15. 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 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.
16. 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)
17. 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.

Alternative provision

18. 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.

What happened here

Background

19. Mr and Mrs X’s son, Z has complex needs and has had an EHC Plan for several years. Y began attending School 1 in September 2021 on a reduced transition plan. He initially attended for 30 minutes three or four times a week. This increased to one hour a day and then from September 2022 to three hours per day.
20. Mr and Mrs X say that although the increased timetable initially appeared to be working well, School 1 did not have the staff to support Z. Z presents with extremely challenging behaviour and was unable to attend more regularly.

Current complaint

21. Z has not attended School 1 since September 2023. As Z had difficulty sleeping and rose early, he started to get tired by midday and was less engaged. School 1 was only able to accommodate Z of an afternoon. Mr and Mrs X did not feel this was working for Z who was going to school and sleeping rather than learning. They withdrew him from school as he was not receiving an education and School 1 could not meet his needs.
22. School 1 held an annual review in November 2023 where it was agreed that Z’s needs were not being met. Mr and Mrs X asked for Z’s needs to be reassessed by an Educational Psychologist (EP).
23. The Council agreed to amend Z’s Plan and sent Mr and Mrs X an amended EHC Plan in December 2023. The Council then made a referral for updated EP advice in January 2024. The EP provided a report dated 11 March 2023 and on 18 March 2023 the Council issued a further amended draft EHC Plan.
24. At the end of May 2024 Ms Y made a formal complaint on behalf of Mr and Mrs X about the failure to provide a suitable education for Z or to ensure he received his special educational provision. Ms Y also complained the Council had not finalised Z’s EHC Plan following the annual review in November 2023. This had delayed Mr and Mrs X’s appeal rights and meant Z’s needs were still unmet.
25. Mr and Mrs X were unhappy the Council had delayed in requesting updated EP advice as this had also delayed producing draft and final Plans. They asked the Council to issue a final EHC Plan without delay. They also asked the Council to follow up on the support and assessments for Autism and to be kept informed of school consultations.
26. The Council responded in July 2024 and upheld Mr and Mrs X’s complaint. The Council said it had used its best endeavours to secure suitable education for Z and apologised that this had not been successful.
27. It noted that since May 2023 the Council had consulted 11 special schools to try and secure suitable education for Z. All of these schools had responded negatively. The Council said it had also made enquiries with tutoring services to try and secure home tuition but this had been unsuccessful due to the complexity of Z’s needs. The Council also confirmed that School 2 had agreed to an assessment place, which would start in September 2024 with additional support for Z in school.
28. The Council also upheld Mr and Mrs X’s complaint about the annual review process. It said the draft Plans had not been finalised as the SEND team had not been able to secure a suitable educational setting for Z. The Council apologised and said the Plan would be finalised within the next five working days.
29. Mr and Mrs X were pleased the Council had upheld their complaints but did not consider it had addressed or remedied their full concerns. They asked the Council to:
• Provide copies of all school consultations and the responses received;
• Follow up on the assessment for autism identified by Z’s Clinic Doctor;
• Provide a financial remedy for missed education and special educational provision; and
• Provide a financial remedy to acknowledge the frustration, distress and uncertainty caused by the Council’s failings and delays.
30. The Council refused to consider Mr and Mrs X’s complaint at stage two of its complaints process as it considered its initial response provided a suitable explanation to their complaint. It said it would treat the request for copies of the school consultations as a Subject Access Request and respond separately. And suggested Mr and Mrs X contact Z’s health professionals in relation to the assessment for Autism as this would be completed via Health services.
31. In relation to Mr and Mrs X’s requests for financial remedies the Council advised this would not be processed as part of the complaints process. These requests would need to be made separately and considered by the Council’s insurers.
32. The Council issued a final EHC Plan on 18 July 2024. This plan does not name a school. It instead named the type of setting as a specialist setting.
33. As Mr and Mrs X remained dissatisfied with the Council’s response, Ms Y has asked the Ombudsman to consider their complaint.
34. Since complaining to the Ombudsman Mr and Mrs X, via Ms Y have made a further complaint to the Council about the lack of support during the assessment placement at School 2. School 2 did not offer Z a place following the assessment period and he remains out of school. This second complaint does not form part of my investigation.

Analysis

35. The Council’s failure to complete the EHC Plan Annual Review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. In this case the Council took over 35 weeks. The Council should have issued a final Plan by 5 February 2024 but did not do so until 18 July 2024. Delays of this nature are both concerning and clearly unacceptable.
36. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
37. Z has not attended school since September 2023 and has not received any alternative provision. It is clear the Council has attempted to secure a suitable school placement and has consulted with numerous special schools without success. The Council has also made enquiries with tutoring services to try and arrange home tuition, but this has also been unsuccessful given the complexity of Z’s needs.
38. The Council’s complaint responses acknowledge that despite its best endeavours it has not been able to secure suitable education provision for Z. This means Z has also not received the special educational provision set out in his EHC Plan.
39. This failure in service, despite the best efforts of the Council, amounts to fault.
40. Although Z remains out of education I am unable to investigate events after July 2024. 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)
41. 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.
42. 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.
43. I have therefore found fault with the Council’s failure to identify a suitable school placement or provide suitable alternative provision between September 2023 and July 2024.
44. I also consider there to be fault in the way the Council responded to Mr and Mrs X’s complaint. The Council upheld Mr and Mrs X’s complaints about the failure to ensure Z received an education or the provisions in his EHC Plan. However it refused to consider their request for a financial remedy through the complaints procedure. It said Mr and Mrs X would instead need to make a claim against the Council’s insurers.
45. We expect Council’s to consider suitable remedies when it identifies fault during the complaints process. The Council’s complaint policy and procedure gives examples of the actions the Council will take to put things right and improve services where it upholds a complaint. It does not give financial remedies as an example, but nor does the policy say it will not consider financial remedies.
46. The Ombudsman has published guidance on remedies and separate guidance setting out the standards we expect from bodies in jurisdiction; “Principles of good administrative practice”. We expect councils to refer to this guidance when considering suitable remedies.
47. Z did not receive any education for a whole academic year. He also missed out on the provision in his EHC Plan. The Council’s refusal to consider a suitable remedy for this in line with our guidance is fault.
48. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. These payments would be between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.
49. In the circumstances I consider a payment of £2,000 per term for the failure to provide any education or any of the provision in Z’s EHC Plan between September 2023 and July 2024 would be appropriate.
50. The delay in the annual review process caused Mr and Mrs X distress and frustration. It also delayed their ability to exercise their right of appeal to the SEND tribunal in relation to the setting and/ or content of the plan. I consider the Council should make a symbolic payment to recognise the frustration and distress Mr and Mrs X has experienced.

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Agreed action

51. The Council has agreed to:
• apologise to Mr and Mrs X and Z for the delay in completing the Annual Review and in issuing an amended Final Plan. And for not providing a full-time education or Z’s SEN provision. 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.
• pay Mr and Mrs X £6,000 in recognition of Z’s missed education and SEN provision between September 2023 and July 2024. This is calculated at £2,000 per term and is in line with our guidance on remedies. Mr and Mrs X should use this for Z’s educational benefit as they see fit.
• pay Mr and Mrs X £500 to recognise the frustration, distress and uncertainty the Council’s actions have caused them.
• remind relevant staff that if the Council agrees to amend an EHC Plan, it must issue a final amended EHC plan within 12 weeks of a review, in line with the statutory guidance.
• ensure relevant staff are aware of the Ombudsman’s Guidance on Remedies and our guidance document: Principles of good administrative practice. And that staff are aware they should have regard to this guidance during the complaint process when considering suitable remedies.
52. The Council should take this action within one month of the final decision and provide us with evidence it has complied with the above actions.

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Final decision

53. The Council's failure to identify a suitable school placement or provide suitable alternative provision between September 2023 and July 2024 is fault. As was the delay in completing the Annual Review process and in issuing a final EHC Plan. These faults have caused Mr and Mrs X and Z an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman