Summary: Mrs X complained about the Council’s delay when issuing an Education, Health and Care Plan, failure to provide her child (Y) with a suitable education and poor complaint handling. We found the Council to be at fault. To remedy the injustice to Mrs X, the Council has agreed to apologise and make a payment to her to acknowledge her distress, Y’s loss of education and support for his special educational needs. We did not investigate part of Mrs X’s complaint because they related to matters that were appealable to the SEND Tribunal.

The complaint

1. Mrs X complains about the Council’s failure to provide her child, Y, with a suitable full time education and support for his special educational needs (SEN). Specifically, she complains about the Council’s:
1. failure to address the fact Y had very limited access to education between September 2021 and September 2022;
2. failure to provide Y with a suitable education since January 2023;
3. failure to provide support for Y’s SEN since the Education, Health and Care (EHC) Plan was issued in September 2022;
4. delay in issuing an EHC Plan and holding an annual review; and
5. poor complaint handling.
2. Mrs X says this caused significant distress and frustration. Y has been denied the education and specialist input he needed at a crucial part of his life. This has affected his overall well-being and future prospects.

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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 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)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

5. 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)
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 SEND Tribunal in this decision statement.
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
9. 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.
10. 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

11. Paragraphs 25 to 28 apply to this complaint. I have only investigated part of 1 (b) and 1 (c). I have not investigated Mrs X’s complaints about lack of educational provision and support for Y’s SEN from when the Council issued the final EHC plan in September 2022 to March 2024 when the Council had a duty to provide alternative provision. I consider it was reasonable for Mrs X to have exercised her right of appeal in September 2022 because both School P and the Council were of the view a suitable education and support for his SEN was available for Y at that time.
12. I have used my discretion to investigate what happened from March 2024 the end of the summer term 2024, which was after Mrs X brought her complaint to us. This is because the Council took too long to respond to her complaint, failed to provide an adequate response to my enquiries and only issued its final response after she brought the matter to our attention. I do not consider it appropriate for Mrs X to have to raise a further complaint with either the Council or the Ombudsman to seek a remedy for the injustice in the latter half of the summer term only when I have sufficient information to reach finding of fact for this period of time.
13. I have referred to events between September 2022 and March 2024 for the sake of context and because they relate to the rest of Mrs X’s complaint.

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How I considered this complaint

14. I spoke to Mrs X about her complaint and considered the written information she provided.
15. I considered the Council’s response to my enquiry letter, including its case records.
16. I considered the relevant law and guidance.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before I made a final decision.

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What I found

Special educational needs

Education, Health and Care Plans

18. A child or young person with special educational needs (SEN) 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.
19. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Timescales and process for EHC assessment

20. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
21. The Code says the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
22. As part of the EHC assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.

Reviewing EHC Plans

23. 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.

SEND Tribunal and appeal rights

24. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.

25. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the SEND Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)

26. 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.

27. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Failure to secure provision

28. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Children out of school and alternative provision

29. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine.
30. Where a child’s attendance at school drops below a certain level, it is likely a council’s inclusion officer will become involved after a referral from the school. Inclusion officers have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
31. 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 (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
32. The courts have considered the circumstances where the section 19 duty applies. Case law has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for them to access. The applicable test is whether the educational provision the council has offered is “available and accessible to the child” (R (on the application of DS) v Wolverhampton City Council 2017).
33. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

Education welfare

34. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare/Inclusion Service will become involved after a referral from the school. This service has various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

The Council’s complaints procedure

35. At stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days.
36. If the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

37. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
38. Mrs X is the legal guardian of Y, a child of secondary school age.
39. Y started attending School P, a mainstream secondary school, in September 2021. School P says Y demonstrated behavioural issues from the outset and had several fixed term exclusions. His attendance was poor.
40. Mrs X requested an EHC needs assessment in November 2021 because she felt Y needed additional support that School P was not able to provide within its existing resources. Following an assessment, the Council agreed to issue an EHC Plan. A draft plan was issued in April 2022.
41. Following an incident in May 2022, Mrs X told the Council she had removed Y from School P. She told the Council she would be educating him at home. This did not happen.
42. A meeting, attended by the Council and Mrs X, was held at School P to discuss Y’s non-attendance.in July 2022. Strategies were put in place to enable Y to return full time to School P in the autumn term, described by the headteacher as “a fresh start”.
43. This proved to be unsuccessful. Mrs X was of the opinion School P was not the right environment for Y and her relationship with the school became difficult. Although Y attended school occasionally, he did not participate in lessons. School P said Y refused to engage with support that was available.
44. A final EHC Plan was issued in September 2022. This named School P in Section I. Mrs X did not appeal this decision to the SEND Tribunal.
45. An internal meeting was held at School P in March 2023 to discuss Y’s situation. Again, this focused on trying to encourage Y to engage with support that was available to him that would enable his return to full time education. The Council’s inclusion service was also involved. The inclusion officer told Mrs X that Y should return to school.
46. In October 2023, the inclusion officer tried to discuss Y’s return to School P with Mrs X. Mrs X said Y would not be returning to School P under any circumstances and she would not attend any meeting with the Council until her complaint was dealt with.
47. In the 2022/23 academic year, Y’s attendance was 8.6%. H did not attend School P at all from March 2023.
48. In December/January 2024, discussions took place between the Councill and the headteacher of School P about Y’s non-attendance and possible safeguarding concerns that arose from this. In the following months, similar conversations took place involving the inclusion service, the youth justice service, SEN and social services. Mrs X maintained her position that Y would not return to School P and she would not participate in any discussions, including an annual review, until her complaint was dealt with.
49. An annual review was held in March 2024 without Mrs X attending. School P set out the measures it had tried to put in place to support Y’s gradual reintegration, including 1:1 support and one lesson per week. School P acknowledged its relationship with Mrs X had completely broken down and said Mrs X had requested Elective Home Education (EHE) and the appropriate referral had been made.
50. Mrs X immediately told the Council she had not said she wanted to home educate Y. Mrs X identified a placement she felt would be suitable. The Council established Y did not meet the criteria to attend. It also accepted Y should not return to School P. The Council consulted with seven independence specialist placements. Mrs X told the Council all were unsuitable and Y wanted to go to School Q, a mainstream school.
51. In June 2024, the Council arranged for Y to receive home tuition, although this quickly broke down. Mrs X told the Council the tutor was changing dates and times and Y just wanted to go back to school.
52. The Ombudsman understands School Q has offered a place to Y for September 2024.

Mrs X’s complaint

Mrs X first complained to the Council in February 2023, raising concerns about Y not receiving an education or support for his SEN. Despite Mrs X sending several chasing letters, the Council did not issue a response until July 2023. In response, it referred to the meeting that had recently taken place that set out various actions to achieve Y’s return to school.

53. Mrs X, dissatisfied with this response, asked for her complaint to be escalated to the next stage. The Council issued its stage two response May 2024, after Mrs X had approached the Ombudsman for assistance.

The Council’s position

54. In response the Mrs X’s complaint and the Ombudsman’s enquiries, the Council:

• accepted here was delay in issuing the EHC Plan. This was due to shortage of EPs and increased demand for EHC assessments;
• agreed it should have arranged alternative provision from March 2024, when an annual review was held. However, it was not under a duty to make alternative arrangements earlier because it was satisfied School P had put measures in place re-engage Y back to school;
• agreed It was no longer appropriate for Y to return to School P and it would consult with other schools;
• confirmed home tuition was in place from June 2024; and
• accepted it had taken far too long to deal with Mrs X’s complaint.

55. To remedy the injustice to Mrs X, the Council offered to:

• apologise;
• pay her £500 in recognition of her distress caused by the Council’s actions; and
• pay her £1200 for the half term (from March 2023) Y was unable to attend the school and the Council failed to arrange alternative provision.

56. Mrs X was not satisfied with the outcome and so asked the Ombudsman to investigate.

Analysis

57. I will consider Mrs X’s separate areas of complaint below.

Failure to address the fact Y had very limited access to education between September 2021 and September 2022

58. It is not in dispute that Y had minimal education during this time. Although he attended infrequently, he rarely attended formal lessons.
59. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
60. However, just because a child does not attend school does not necessarily mean the Council has to make alternative arrangements.
61. The Ombudsman takes the view it would be unreasonable to expect councils to intervene if it is unaware of the child’s circumstances. Relevant guidance also makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support.
62. I do not consider the Council had a legal duty to take responsibility for Y’s minimal education before September 2023. A reintegration plan was in place and Y was attending school, albeit very occasionally. This action plan included the measures we would expect to see, and it was reasonable to allow some time for this to be effective. There was no fault by the Council.

Failure to provide Y with a suitable education or support for his SEN

63. For the reasons I have explained above, I am unable to investigate (or consider remedying any resulting injustice) for Y’s lack of education or SEN support between September 2022 and March 2024 because it is inseparable from Mrs X’s right of appeal to the SEND Tribunal.
64. The Council has accepted this duty was triggered at the point the annual review was held and it was agreed School P was no longer suitable or reasonably available. This was in late March 2024. In its response to Mrs X’s complaint, the Council offered a payment of £1200 for the half term failed to make alternative arrangements.
65. The Council provided a home tutor in June 2024. However, this broke down soon after starting because the tutor was unreliable and Y found it difficult to engage. After so much time out of education, this is not surprising. I have seen no evidence of the Council investigating Mrs X’s concerns about unreliability, offering an alternative or any dialogue with Mrs X about this matter in order to fulfil either its section 19 or section 42 duties.
66. This was fault.

Delay issuing an EHC Plan and holding an annual review

67. The Council has already accepted there was a delay in issuing a draft EHC Plan.
68. The law says a final EHC Plan should be issued within 20 weeks from when the EHC needs assessment is requested.
69. In this case the plan should have been issued by 28 March 2023. Instead, it was issued in September 2023, a delay of approximately six months.
70. The Ombudsman expects councils to adhere to statutory timeframes. I acknowledge the delay in issuing the final EHC Plan was caused by the EP report being provided late and that there is a national shortage of educational psychologists which is outside the control of the Council. However, I have concluded that it was still a service failure which caused Mrs X frustration and uncertainty.
71. There was also significant delay in carrying out an annual review. I do not accept Mrs X’s non-engagement was a sufficient justification for delaying the review. If anything, it made the need for a review even more urgent, especially as Y had not attended school for so long.
72. Had the annual review been held when it should have been (September 2023), I find that, on balance, it was more probable that not that all parties would have decided School P was no longer suitable for Y, six months earlier than they did. This uncertainty about whether the matter could have been resolved sooner is an injustice that requires a remedy.

Poor complaint handling

73. The Council has accepted there was fault with its complaint handling. I agree.
74. Both the stage one and stage two responses were significantly late and required Mrs X to approach our service for assistance to get a reply.
75. The stage two response was inadequate and did not properly explain the Council’s position. The Council accepted fault because “there was a delay in agreeing an alternative educational provision is appropriate” and “we should have made alternative arrangements at the point we were aware Y was not attending school”. Mrs X was offered an apology and “£1200 per term for the time Y was unable to attend school”.
76. This response failed to specify how many terms of missed education Mrs X would be compensated for. It also made no reference to Y not receiving support for his SEN which was understandably a significant part of Mrs X’s complaint.
77. When clarification was sought by the Ombudsman about this issue, the Council said it was responsible for only half a term of missed education. This should have been made clear in the stage two response.
78. The failure to respond to her complaint directly impacted on the breakdown in communication between the Mrs X and the Council. The case records show Mrs made it clear, from October 2023, that she would not engage with the Council until her complaint was dealt with. By that time, she had ready waited far too long for both her stage one and stage two responses. It is extremely concerning that, despite being aware of the impact of this delay, it took no action to respond for a further six months and, only after intervention from the Ombudsman.
79. This fault had significant consequences, both in terms of the case progression and distress to Mrs X. This has been reflected in the remedy I consider appropriate.

Injustice and remedy

80. I have identified several areas of fault that caused a significant injustice to Mrs X and Y. He went without both the educational provision and additional support set out in his EHC Plan for just over one term. The fact he was denied this support meant an already vulnerable young person was further disadvantaged.
81. The situation was made worse by the Council’s failure to respond to Mrs X complaints, delay in issuing the final EHC Plan and holding the annual review.
82. The Ombudsman has published guidance to explain how we calculate 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.
83. For injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred.
84. Distress can include anxiety, uncertainty, lost opportunity and frustration.
85. Where fault has resulted in a loss of educational/SEN provision, we normally recommend a remedy payment of between £800 and £2400 per term to acknowledge the impact of that loss. This amount takes into account a variety of factors including the child’s SEN, the stage of their education and whether any partial provision was made. In this case, Y received no education or support for his SEN between late March 2023 and July 2023. I have increased the amount already offered by the Council to reflect this time period.

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Agreed action

86. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise to Mrs X.
2. Pay Mrs X £2400 to recognise the failure to arrange alternative provision or support for Y’s SEN.
3. Pay Mrs X £500 as a symbolic payment to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to comply with EHC Plan statutory timescales.
4. Pay Miss X £500 as a symbolic payment to recognise her frustration time and trouble involved in the complaint process. This includes recognition of poor quality of the Council’s complaint response.
87. For the avoidance of doubt, this is instead to the remedy already offered by the Council.

Service improvements

88. Over the last few years, we have issued multiple decisions highlighting failings by the Council’s SEN Service. We have issued decisions where the Council agreed the following recommendations to:

• improve adherence to statutory timescales for producing new EHC Plans and conducting annual reviews;
• arrange alternative provision when the duty arises; and
• improve its complaint handling.

89. Those recommendations are relevant to this case and there seems little benefit in repeating them here. For this reason, I have made no further service recommendations.
90. The Council should provide us with evidence it has complied with the above actions.

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Final decision

91. I have found the Council to have acted with fault and made recommendations to remedy the injustice caused by its faults. The Council has agreed with my recommendations. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman