Summary: Mrs Y complained the Council failed to provide her child with a suitable education and complete the annual review of their Education, Health and Care plan within the statutory timescale. She also complained the Council communicated poorly with her about her child’s education. We have found fault by the Council causing injustice. The Council has agreed to remedy this by apologising to Mrs Y and her child, making payments to recognise the impact of the missed education and reflect Mrs Y’s distress, frustration and time and trouble. It will also report to us on the progress with the EHC plan reviews and make service improvements.

The complaint

1. The complainant, who I am calling Mrs Y, complains the Council:
1. failed to arrange suitable educational provision for her child, who I am calling Z, while they were unable to attend school. Mrs Y asked the Council to arrange tuition and mentoring for Z, including through a local education provider, but it failed to provide funding for this; and
2. poorly communicated with her about the situation. Its officers failed to return her calls and reply to her emails about Z’s education since their first Education, Health and Care Plan was issued in March 2022.
2. Mrs Y says Z missed out on a suitable education. Z was significantly let down by the Council and at risk of moving into Year 11 without any formal education to set them up to sit their GCSEs. And Z became increasingly isolated, no longer leaving the house or communicating with anyone their own age. This affected Z’s mental health.
3. Mrs Y also says she has been unable to work because she needed to be at home to support Z and chase the Council. She spent time chasing the Council for a response. The situation caused her distress, frustration and confusion as she was passed between Z’s school and the Council without this leading to Z receiving an education.

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 the 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 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.

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How I considered this complaint

8. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
9. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education Health and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and the arrangements for meeting them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Arrangements for reviewing an EHC Plan

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This says a council must:

• review an EHC plan, as a minimum, every 12 months;
• send the child’s parents, within four weeks of the review meeting, its decision about whether the EHC plan is to continue; change or end;
• if it proposes changing a plan, send the child’s parent within four weeks of the review meeting, a copy of the existing (non-amended) plan and notice of the proposed amendments, including any evidence to support the proposed changes; and
• if it decides, following comments from the child’s parent or the young person, to continue to make amendments, issue the final amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. A recent court case stated amended EHC Plans should be issued within 12 weeks of the annual review meeting.

13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

14. 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)) We refer to this as section 19 or alternative education provision.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
16. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
17. 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 mind? How councils can do more to give children out of school a good education, published in 2016)

What happened

18. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

19. Z attended a mainstream secondary school. In February 2022 the Council issued a draft of Z’s first EHC plan. Z’s school had told the Council it had agreed a reduced timetable for Z with Mrs Y. And she had told the Council she felt mainstream school wasn’t working for Z. She wanted a specialist setting which could meet Z’s social, emotional and mental health (SEMH) needs.

March 2022: Z’s final EHC plan

20. The Council issued Z’s final plan on 17 March 2022. It named Z’s current mainstream school as their placement.
21. When Mrs Y questioned this, the SEN team told her it had had to issue the final plan now to meet the statutory timescales. It had named the current school as the placement because its SEN panel had not yet made a decision about a specialist setting.

June 2022: SEN panel’s decision

22. The panel first considered the request for a specialist setting in March 2022 but said it needed more information to make a decision.
23. The SEN team re-submitted the request for a specialist setting for Z to the panel with additional information. The panel decided Z’s needs should be met by a specialist school for children with SEMH needs.

Consultation with School Q

24. The Council sent a consultation letter to Mrs Y’s preferred setting, School Q, on 8 June.
25. School Q told the Council on 7 July it did not have a place available to offer Z.

September 2022: start of the school year 2022/2023

26. Mrs Y contacted the Council at the start of the autumn term. She said:

• She had not heard from the Council since it told her in June it would consult with School Q about a place for Z;
• She had chased it for an update but had not received any response; and
• Z’s school had told her it could not meet his needs and wanted Z to work from home. This was the start of an important year for Z. They were not receiving the education to which they were entitled.

27. Z’s school told the Council:

• Z was on a greatly modified timetable, of only one hour of lessons a day;
• They often did not attend this lesson and there were safeguarding concerns; and
• Z was becoming increasingly anxious about what was happening, and when there would be a change of setting.

28. The Council told Mrs Y, as School Q could not offer Z a place it would ask its graduated response team to work with the school to ensure a package of support was in place to meet Z’s needs until a specialist school place could be allocated.
29. It also apologised for the SEN team’s communication failures. It said the service had been unable to work as efficiently as it normally would, due to the increase in statutory demand. It had recently restructured the SEN team which would improve its service.

October 2022: Mrs Y’s request for an alternative education provider

30. The Council’s graduated response team reported back to the SEN team on the outcome of its contact with Z’s school. The school said Z just could not manage more than one hour a day at school. Z was anxious and asking for a fresh start. The team felt the school was trying to support Z as best it could.
31. Mrs Y told the Council, Z was only attending school for one hour a day and no tutoring or other education options had been arranged. But she had found an alternative education provider, P, who could offer Z a place.

October to December 2022: Contact about provision for Z with P

32. P confirmed to the Council it had a place available for Z and they could start once the referral was completed.
33. The Council told Mrs Y it could not name P as Z’s placement in the EHC plan because P was not registered with OFSTED. It considered provision with P could be arranged and funded through Z’s current school.
34. But the school told the Council Z’s funding wouldn’t cover the cost of P’s fees. The Council and Z’s school continued to go back and forth about who would arrange and fund provision for Z without any progress being made.
35. The school told the Council Z was not attending any lessons, would not engage in remote learning, and they had not yet been able to find a tutor. The Council told the school it was responsible for Z’s education while they were on the school roll.
36. SENDIASS (special educational needs and disability independent advice and support service) contacted the Council on Mrs Y’s behalf. They told the Council Mrs Y had not heard from its SEN team. They were concerned that although a suitable alternative provider -P- had been found, Z could not access this because the school wouldn’t arrange it. The Council confirmed this was the position because the school remained responsible for Z’s education while they were still on its roll.

Z’s educational provision

37. Z’s school arranged online tutoring of one hour a day for Z from 5 December 2022.

January 2023: Mrs Y asks for an emergency review of Z’s EHC plan

38. The school told the Council Mrs Y had asked for an emergency review of Z's EHC plan.
39. The Council replied saying the school should lead the review. The school said it understood this but felt in this case an officer from the Council’s SEN team should attend, and Mrs Y also wanted a meeting with the Council.

February 2023: Mentoring package for Z

40. The Council contacted P. It asked whether it could meet Z’s needs. P told the Council it was now at full capacity but could put Z on the waiting list for a place in September 2023. It also told the Council it could provide Z with a mentoring package through its connected provider R.
41. Mrs Y said she wanted to go ahead with the mentoring package. The SEN team made an application to its senior management. It said, in support of the application, Z had been out of education since last summer. The school had only recently arranged one hour tutoring a day which wasn’t enough.
42. The Council told Mrs Y in its complaint response:

• The school remained responsible for Z’s education;
• As the school felt it could not meet Z’s needs, a review of Z’s EHC plan should be held as a matter of urgency to explore alternative provision; and
• It apologised for its further communication failures. It said a restructure of its SEN team caused a number of issues during the handover period but would result in an improved service.

March to April 2023: the outcome of the request for the mentoring package

43. Mrs Y chased the Council for an update about this during February and March. She said Z was asking her about this every day. She was told each time the request was still with a senior manager.
44. On 5 April the Council told Mrs Y it couldn’t name P as Z’s setting on their EHC plan. The current school remained Z’s named placement and it should arrange the support through R using its funding.

May 2023: Council’s response to our enquiries

45. Mrs Y contacted us about her complaint in March 2023.
46. In its response to our enquiries, the Council:

• Accepted Z had not received a suitable education from September 2022 to May 2023. It offered a remedy payment of £2,000 @ £300 per school month, based on some tuition being in place, to recognise the impact of this on Z;
• Acknowledged the fault in this case. It apologised it had been unable to resolve Mrs Y’s concerns through its complaints process. It offered a remedy payment of £200 for her time and trouble pursuing the complaint; and
• Said it had now devised and implemented a communication policy to embed and improve communication with families.

47. The Council also told us it would now:

• Arrange alternative provision for Z for the remainder of the summer term;
• Consult with further settings appropriate for Z’s needs; and
• Work with Z’s school to arrange the annual review.

The Council’s actions from June 2023

48. The Council told us:

• A mentoring package was put in place for Z with R from 5 June to the end of the summer term in July;
• An annual review meeting was held on 29 June. The Council sent Mrs Y a draft amended plan (but a final plan had not been issued as at 2 October 2023);
• A place for Z at a specialist setting was found. Z started there towards the end of September 2023; and
• As Z is now in year 11 it will complete a phase transfer review. A further review will take place towards the end of the autumn term to discuss Z’s post 16 options and progress with their current provision.

My analysis – was there fault by the Council causing injustice?

Period from March to July 2022

49. I don’t propose finding fault with the Council for the way it dealt with Z’s EHC plan or education during the period to early July.
50. I appreciate there were issues with Z’s engagement with school. But School A had agreed a reduced timetable with Mrs Y, the Council’s SEN panel had agreed Z should move to a specialist setting which could meet their SEMH needs, and the Council had consulted with Mrs Y’s preferred setting. I don’t consider it was evident the Council should consider making alternative provision for Z at this stage.
51. But the Council did not tell Mrs Y in July, School Q could not offer Z a place. This communication failure, and its failure to take any action from July to find a suitable specialist placement for Z for September 2022, was fault. The impact of this became clear in September 2022. I have dealt with this in paragraphs 63 to 69.

Failure to complete the annual review within the statutory timescales

52. Z’s first EHC plan was issued on 17 March 2022. The Council should have carried out an annual review by March 2023. But the review meeting not held until 29 June 2023.
53. Mrs Y had asked in January 2023 for an emergency review of Z’s plan. The Council acknowledged in February 2023 an early review was needed urgently to consider alternative provision options, but it still did not make sure this was arranged.
54. And following the review meeting on 29 June 2023, the Council should have told Mrs Y its decision about continuing, changing or ending the plan and sent her details of the draft amended plan within four weeks of the meeting. And then issued the final amended plan within 12 weeks, that is by 21 September 2023. Mrs Y has only recently received a draft amended plan.
55. I note there was contact between the school and the Council about a review meeting. But it is the Council’s responsibility to make sure reviews are completed within the statutory timescales.
56. The Council has failed to complete the review of Z’s plan within the statutory timescales. This is fault.

Impact of the failure to complete the review

57. The delay in completing the annual review and Z’s final amended EHC plan has caused Mrs Y frustration and uncertainty about the outcome.
58. And the delay meant there was a missed opportunity to look into suitable options for alternative provision for Z earlier on in the school year, causing Mrs Y further frustration and distress.
59. Mrs Y is also unable to appeal to the SEND tribunal about the content of the plan or Z’s placement until the final plan is issued. Her opportunity to appeal is delayed until this happens.

Failure to provide Z with a suitable education

60. The Council has accepted, and I agree, it failed to provide Z with a suitable education from September 2022, until 5 June 2023, when the mentoring package was put in place. This is fault.
61. I am particularly concerned that the Council failed to accept its responsibility for this back in September 2022. The law makes it clear it is a council’s duty, under S19 of the Education Act, and not the school’s, to provide a suitable education for children who for whatever reason cannot attend school.
62. But the Council repeatedly and wrongly said that while Z was still on School A’s roll, the school was responsible for their education. And its dispute with School A as to who was to fund the cost of an external tutor package did not negate the Council’s statutory duty to provide Z with a suitable education.

Impact of the failure to provide a suitable education

63. The Council’s failure to properly consider its responsibility for making alternative provision for Z in September 2022, when it was already clear Z was not and could not attend School A, wasted valuable time.
64. It was a missed opportunity to arrange a suitable education option for Z from the beginning of the of the 2022/2023 school year, when he was keen to make a fresh start. Instead, because of the delays and the Council’s failure to accept responsibility, the mentoring package, with which Z appeared to engage well, was only put in place at the very end of the school year.

Remedy payment for Z’s loss of educational provision

65. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
66. I don’t consider the Council’s remedy offer of a payment of £300 per school month (£900 a term) meets the expectations set out in our remedies guidance.
67. Z was not provided with any meaningful education or SEN support from September 2022 to 4 December 2022. And only 5 hours a week online tutoring from 5 December 2022 to 4 June 2023. They did not receive any education from the start of the 2023 autumn term until 29 September 2023 when they began attending the specialist placement. This was a very important period for Z when they should have been working towards GCSEs.
68. Taking all of this into account, I consider the remedy payment should be at the top of the scale.
69. Mrs Y has also been caused worry and distress about the Council’s failure to provide Z with a suitable education during this time.

Communication failures

70. The Council accepted, in its responses to Mrs Y’s complaint, it had not kept her informed, there had been delays and poor communication.
71. The communication failures were fault which caused Mrs Y avoidable upset and frustration.
72. I note the Council has now implemented a communication policy which it says will improve this part of its service.

Complaint handling

73. The Council has accepted, and I agree, it failed to acknowledge its fault in this case, and respond properly to Mrs Y’s concerns through its complaints process.
74. This was fault which caused Mrs Y time and trouble, including bringing her complaint to us. The Council has offered a payment of £200 to reflect this which I assess is a suitable remedy for this part of the complaint.

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Agreed action

75. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its failure to complete the review of Z’s EHC Plan within the statutory timescales, provide Z with a suitable education from September 2022 to September 2023, its communication and complaint handling failures;
2. apologise to Z for its failure to provide them with a suitable education from September 2022 to September 2023;
3. 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;
4. pay Mrs Y £900. This is made up of £500 to reflect the distress and worry caused by the Council’s failure to provide Z with a suitable education for over a year and complete the annual review, and lack of opportunity to appeal to the SEND Tribunal, £200 to reflect the upset and frustration caused by its communication failures, and the £200 it offered to reflect the time and trouble caused by its complaint handling. This is a symbolic amount based on our guidance on remedies;
5. pay Mrs Y £2,400 for each school term Z missed out on the education and SEN support he should have received from September 2022 to 4 December 2022, and from the start of the autumn term to 28 September 2023. I have assessed this as being 1.25 school terms. And £2,000 for each school term from 5 December 2022 to 4 June 2023. I have assessed this as being 1.75 school terms. Making a total payment of £6,500. This is a remedy for Z’s benefit to recognise the injustice the missed education has caused him; and
6. report back to us on:

• the action it has taken to complete the 2023 annual review of Z’s EHC Plan; and
• The steps it has taken to arrange the phase transfer review which must be completed by 31 March 2024.

76. And within three months of the date of the final decision, as service improvements, the Council has agreed to:
1. Share the learning from this decision with its SEN team and those officers responsible for making decisions about and arranging alternative provision; and
2. Review its guidance, and remind its officers, about the Council’s statutory duty to provide a suitable education for children who for whatever reason cannot attend school, even when they are still on the school’s roll.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I have completed my investigation into this complaint and have found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman