Summary: the Council took 17 weeks too long to amend Ms M’s daughter G’s Education, Health and Care (EHC) Plan following an annual review in July 2022. We have recommended a remedy for the impact of the delay on G’s education and the additional childcare costs Ms M incurred. We cannot consider Ms M’s complaint once the Council issued the final amended Plan because she appealed to the SEND Tribunal.

The complaint

1. Ms M complains about delays by the Council amending her daughter G’s Education, Health and Care (EHC) Plan following the breakdown of her school placement.
2. Ms M complains G has been out of full-time education since July 2022 when the placement broke down. She complains about the education G has missed. She also complains she had to pay for childminding when G should have been at school.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. Once 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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How I considered this complaint

7. I have considered information provided by Ms M and information provided by the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. Ms M’s daughter, G, has an Education, Health and Care (EHC) Plan maintained by the Council. She attended a special school in a nearby town.
9. The school held an annual review meeting on 21 July 2022. The school said it was no longer able to meet G’s needs and asked the Council to arrange a new placement. Ms M and the school agreed G would remain on roll and the school would provide off-site tuition for two hours per day from an outreach worker until a new school was found. This increased to three hours a day in February 2023.
10. The Council received the papers from the school on 6 September and notified Ms M that it intended to amend G’s EHC Plan on 13 September 2022.
11. Ms M requested a place at an independent special school in a different nearby town.
12. Ms M complains there were delays while the Council obtained a report from an Educational Psychologist before consulting schools, and further delays obtaining costings from schools before the Council’s placement panel could make a decision.
13. The Council issued a final amended EHC Plan on 9 February 2023. The Plan did not name Ms M’s preferred school and simply said G should attend a special school. The Council says it could not name Ms M’s preferred school because of safeguarding concerns. Ms M lodged an appeal with the SEND Tribunal on 16 February 2023. The final hearing was scheduled for September 2023.

Ms M’s complaint to the Council

14. Ms M complained three times to the Council about delays and G’s absence from school: in September and December 2022, and January 2023. The Council recognised there had been delay and ‘partly upheld’ her complaints because it said the delays were outside its control.
15. The Council’s corporate complaints process is a one-stage process, so each time Ms M told the Council she was unhappy with the response, the Council responded as though she had made a new complaint. The Council recognises this is not ideal and says it is reviewing the complaints process. I welcome the Council’s undertaking.
16. Unhappy with the Council’s response, and G’s continuing absence from school, Ms M complained to the Ombudsman.

Complaint 1: the review of G’s EHC Plan

17. Ms M complains about delays by the Council amending her daughter G’s Education, Health and Care (EHC) Plan following the breakdown of her school placement.
18. The procedure for reviewing and amending a child’s Education, Health and Care Plan is set out in legislation and Government guidance.
19. The Council must ensure a meeting is held to review the plan. The Council can require the head teacher of the child’s school to arrange and hold the meeting. Regulations set out the process that must be followed.
20. Following the meeting, the head teacher must send a report to the Council setting out their recommendations for any amendments to the plan and the views of others present, if they are different.
21. Within four weeks of the review meeting, the Council must decide whether to continue to maintain the child’s EHC Plan as it is, or to change it.
22. If the Council decides to change the Plan, the Regulations set out the process and timescales the Council must follow. The Council must send the parent a copy of the Plan and a notice specifying the amendments it intends to make. It must invite them to comment and request a specific school is named in the Plan.
23. The Regulations do not say how quickly the Council should send the notice after the review meeting. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
24. If the Council decides to make the changes, it must issue a final Plan within 8 weeks of sending the notice.
25. So, if the Council decides to change a Plan, it must do so within 12 weeks of the review meeting, and sooner if possible.

What happened

26. The school held a review meeting on 21 July 2022. The Council decided to amend G’s Plan and issued a final amended Plan 29 weeks later, on 9 February 2023. This was 17 weeks late.
27. The Council said some of the delay was the fault of the school, which did not provide a report from the annual review meeting until the beginning of September because of the school holidays.
28. The Regulations make no provision for school holidays. And while the Council has no control over the school, it remains responsible for the review process.
29. The Council also said that further delay was the result of needing advice from an Educational Psychologist. The Council’s ‘placement panel’ then needed costings from Ms M’s preferred school which could not be provided without the Educational Psychologist’s advice. The school took a long time to provide the information the Council needed.
30. In her complaints to the Council, Ms M said she thought the Council should have obtained advice from an Educational Psychologist sooner, and the placement panel could have made a decision without costings based on its knowledge of the school. While I recognise Ms M’s frustration at the delays, I make no comment on these operational matters. They are matters for the Council to decide.

My findings

31. The Regulations, and case law, say the Council must issue the final Plan within 12 weeks of the review meeting. The Council took 29 weeks. The Plan was 17 weeks late. This delay is fault.
32. The Council ‘partially upheld’ Ms M’s complaint because some of the delay was outside its control. The Ombudsman upholds Ms M’s complaint, but we describe the fault as ‘service failure’. Service failure occurs 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. The Council sent evidence which shows it ‘chased’ Ms M’s preferred school for the information it needed once it had decided to amend G’s Plan and did not let the case drift. This is good practice. The Council might consider setting up procedures to ‘chase’ schools for the reports from annual review meetings.
33. Where we find fault, including service failure, we consider the impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy.
34. The delay amending G’s EHC Plan caused her injustice. She was out of school for a term and a half before the Council issued her final amended Plan, although the school arranged some tuition. The Council recognises that the tuition G received was not as good as regular school attendance.
35. Even the final amended Plan did not result in a new school place for B, however, but I cannot consider what happened next since Ms M appealed to the SEND Tribunal. We cannot investigate complaints about matters that are the subject of an appeal to the Tribunal. Nevertheless, the delay issuing the Plan delayed Ms M's right of appeal.
36. I will recommend a remedy for the injustice caused by the delay amending G’s EHC Plan. My recommendations are at the end of this statement.

Complaint 2: G’s education from July 2022

37. Ms M complains G has been out of full-time education since July 2022 when the placement broke down. She complains about the education G has missed. She also complains she had to pay for childminding when G should have been at school.
38. Parents have a duty to ensure that their children receive suitable full-time education. (Education Act 1996, Section 7).
39. Most do this by sending their children to school.
40. Councils have a duty to “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))
41. The Council is – in effect – a “safety net”.
42. We have issued guidance to councils on how we expect them 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? Ensuring children out of school a good education, published in July 2022)
43. We made a number of recommendations. The most relevant to Ms M’s complaint is that councils should consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll.

What happened

44. Ms M complains G has received a maximum of two hours tuition a day from the beginning of September 2022, increasing to a maximum of three hours per day from February 2023, while waiting for a new school. Ms M says the tuition took place in community venues she does not consider suitable. The tuition included travel time and was cancelled if the teacher was unwell. As well as the impact on G’s education, Ms M complains she has incurred significant costs for childcare.
45. The arrangements for G’s education are recorded in the school’s report following the July 2022 annual review meeting. I understand the tuition was arranged by the school, not the Council.
46. I asked the Council whether it assessed the suitability of the tuition arranged by the school, and whether it considered making alternative arrangements itself.
47. The Council said it was aware of the tuition arranged by the school and relied on the expertise of the school to arrange suitable provision.
48. Following Ms M’s complaint, the Council contacted the school in January 2023 to check on the provision the school arranged.
49. The Council said the provision arranged by the school was in line with the provision it would have arranged if the school had not made the arrangements.
50. However, the Council acknowledged that full-time education in a suitable school setting was the most appropriate provision, and that remained the Council’s goal.

My findings

51. The evidence shows the Council was aware of the school’s arrangements for G’s education. The Council has explained why it considers those arrangements to have been suitable interim arrangements until a new school place was found.
52. When Ms M complained directly to the Council, the Council followed up her concerns with the school. This satisfies me the Council was thinking about G’s needs.
53. Nevertheless, the school’s arrangements did not amount to the full-time education G was entitled to and which the Council had a duty to arrange. I will recommend a remedy for the injustice this caused. My recommendations are at the end of this statement.

The impact on Ms M and G

54. Following the annual review in July 2022, the Council accepted B’s school was no longer meeting her needs and she needed a new school place. Regulations say this should happen as soon as possible, and within 12 weeks of the review meeting.
55. Time is of the essence since the existing arrangements are – by definition – no longer suitable.
56. The Council should have amended G’s Plan and she should have started at a new school by 13 October 2022. The Council did not issue a final amended Plan until 9 February 2023. This is almost a whole school term (or two half terms) when G should have had a full-time school place but was receiving up to 10 hours of one-to-one tuition/support instead. This caused G an injustice. It was the result of fault by the Council: the delay amending G’s Plan.
57. Further, Ms M also incurred childcare costs she would not have incurred if G had been at school as she had to work.
58. I will recommend a remedy for the injustice caused by the delay amending G’s EHC Plan. My recommendations are at the end of this statement.
59. I cannot consider G’s education from 9 February – even though the Council had not secured a school place – because Ms M appealed to the SEND Tribunal.

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Agreed action

60. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. 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. When this is not possible, as in the case of Ms M and G, we may recommend the Council makes a symbolic payment.
61. G should have had the provision specified in her 9 February 2023 Plan (“a special school place”) from 13 October 2022. The failure to arrange this provision caused G’s injustice.
62. Instead, she received 10 hours of one-to-one tuition/support per week. While better than being without education, it is no substitute. I recommend the Council makes a symbolic payment of £1,600 to recognise the impact on G’s education.
63. Ms M also had to pay for childcare while G was not attending school. Although G had a school place, the evidence suggests that a return to the school would not have been appropriate. Nevertheless, G’s return to school, once a suitable school place is found, was never in question.
64. I recommend the Council makes a symbolic payment of £2,100 to acknowledge the additional childcare costs Ms M incurred as a result of G’s absence from school between 13 October 2022 (when the Council should have issued her final Plan) and 9 February 2023 (when the Council issued the final Plan).
65. In a frank and helpful response to my enquiries, the Council acknowledged the impact of the delays on Ms M and G and offered its apologies. At the conclusion of my investigation, I recommend the Council writes directly to Ms M and G to offer its apologies for the faults I have identified.
66. I recommend the Council makes the payments and sends an apology within six weeks of my final decision.
67. The Council should provide us with evidence it has complied with the above actions.
68. The Council accepted my recommendations.

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Final decision

69. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman