The Ombudsman's final decision:
Summary: Ms E complained the Council did not provide her son with the education and specialist provision as set out in his Education, Health and Care plan when he started a new school in September 2020. We find the Council was at fault for failing to provide Ms E’s son with alternative education when he was not attending school. It has also delayed finalising his Education, Health and Care plan. The Council has agreed to our recommendations to address the injustice caused by fault.
- Ms E complained the Council did not provide her son with the education and specialist provision as set out in his Education, Health and Care (EHC) plan when he started a new school in September 2020. She says her son has experienced constant disruptions which means he has not been able to access any proper education.
- Ms E says the matter has been stressful and the Council has let her son down.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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.
- If we are satisfied with a council’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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I considered information Ms E submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
- Ms E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and statutory guidance
- 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. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
- The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
- Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
- Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
- Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
- Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
- Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
- Paragraph 9.196 says that after receiving any representations from the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
- Ms E’s son, F, has complex needs and an EHC plan.
- F started a new school (School A) in September 2020. Due to the COVID-19 pandemic, the building for School A was not ready. Interim measures were put in place, and School A used buildings across the local area.
- F was using a taxi to get to School A. After several incidents, the taxi company decided it would no longer transport F.
- F stopped attending School A on 13 November.
- School A held an annual review on 10 December. A Council officer and Ms E attended. School A said F was not ready to be in the placement. It also said it was not staffed or equipped to meet his needs so late in his school career.
- The Council wrote to Ms E on 8 January 2021 and said it would issue a draft EHC plan.
- School A sent some work home for F to complete. Ms E contacted the Council and said the work was too difficult and F was struggling. The Council contacted School A and asked it to differentiate the work in line with F’s needs.
- The Council sent Ms E the draft EHC plan on 9 March. She responded on 23 March and said she wanted F to access vocational education. The Council said it would consult with the special educational panel.
- Ms E complained to the Council on the same day. She said the provision was not suitable for F and he could not engage in the work School A was sending home.
- The Council consulted with two educational settings on 1 April.
- The Council responded to Ms E’s complaint. It said following the annual review in December 2020, School A described the difficulties when trying to engage F. It could not implement alternative provision due to COVID-19. It also said it was consulting with other educational settings.
- An educational setting (School B) responded and said it could meet F’s needs, but it needed extra funding. The other school said it could not meet F’s needs.
- Ms E referred her complaint to stage two of the Council’s complaints procedure. She said she was still waiting for a placement and F had not accessed any year 10 education.
- The Council responded and reiterated School A was supporting F with online teaching and resources. It also said it was reviewing School B’s response to the consultation.
- School B contacted the Council in June and said it could not take F due to capacity issues.
- The special educational panel met in November and noted there was no new information. It said the caseworker would need to make a referral for F to access bespoke education. The caseworker did not see the update, and so failed to make a referral.
- School A held a further annual review in December. It said F still was not attending, but he had started accessing some vocational training once a week.
- The Council wrote to Ms E on 15 February 2022 and said it would amend F’s EHC plan. It also referred him for social and educational support on the same day.
- The Council issued an amended draft EHC plan on 9 March. Ms E responded with her views two days later. She said F’s EHC plan was out of date and inaccurate.
- The Council was aware in December 2020 that F was not attending School A. School A made it clear F was not ready to be in its environment and he could not cope. The Council had a duty to intervene and assess what suitable alternative education it could provide for F. Its failure to provide any alternative education is fault.
- F has struggled to engage with the work School A sent home. The Council has relied on School A providing work and other opportunities for F, rather than conducting its own assessments and deciding what provision he could cope with. The Council has only recently referred F for educational support, but he has not received this yet and he is still out of education.
- The Council has also significantly delayed finalising F’s EHC plan. It issued the first draft EHC plan on 9 March 2021. This has still not been finalised. It issued an amended draft EHC plan was on 9 March 2022, which it aims to finalise shortly. The Council’s delay means Ms E has been deprived of her appeal rights to the SEND Tribunal.
- The Council was also aware by June 2021 the two educational settings it had consulted with would not accept F. It did nothing at the time to progress matters and consult with other settings.
- The failure to provide F with any alternative education means he has missed out on most of his final two years at secondary school. The Council has also caused Ms E avoidable distress, frustration, and uncertainty. It needs to take action to remedy this significant injustice.
- To address the injustice caused by fault, by 27 May 2022 the Council has agreed to:
- Apologise to Ms E.
- Pay Ms E £400 to acknowledge her avoidable distress, frustration, and uncertainty.
- Pay Ms E £6,000 (£500 per month) to remedy the failure to provide F with alternative education from December 2020 to present. We would suggest Ms E uses this payment for F’s educational benefit.
- Finalise F’s EHC plan.
- Provide F with alternative education until it secures a new placement for him.
- Within two months, issue written reminders to relevant staff to ensure they are aware of:
- The timescales to finalise an EHC plan after an annual review.
- The Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
- I have found fault by the Council, which caused Ms E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman