Summary: Miss X complained the Council failed to provide a suitable education for her son for the past four years causing distress and social isolation. The Council failed to provide any education provision from May 2023 to January 2024, wrongly requested Miss X put a review request in writing causing delay and failed to identify a suitable school placement since August 2021. A suitable remedy for the injustice caused by this fault is agreed.

The complaint

1. Miss X complains the Council failed to provide a suitable education for her son for the past four years.
2. She says this has resulted in a lack of education, social skills and limited his 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. 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)
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 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

8. The Ombudsman normally only investigates matters brought to her attention within 12 months of the person first becoming aware something had happened with affected them. I have decided to exercise discretion to investigate matters starting from August 2021 as this is when the Council decided to take Miss X’s son off roll at a mainstream school.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

10. 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 the council can do this. 

Reviewing EHC Plans

11. 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. The process is only complete when the council issues a decision about the review.

12. 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) 

13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

14. 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.

15. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Reassessments of EHC Plans

16. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.

17. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.

18. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.

19. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Ombudsman’s jurisdiction and appeal rights

20. Restrictions on our powers to investigate where a right of appeal was used or existed, means there will be cases where there has been past injustice which neither we, nor the 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). 

21. 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.

22. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Key facts

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. Miss X’s son, Z, is 15 years old. As well as diagnoses of Autism Spectrum Disorder and ADHD, Z also has medical needs. An Education, Health and Care Plan was first issued in November 2013. An annual review of his EHC Plan was carried out in January 2021. Miss X did not appeal in respect of the EHC Plan issued after this annual review.
25. In August 2021, the Council took Z off roll at his school. It says it did not hold an emergency/early review because Z had only attended school sporadically and so the school would not have enough quality information to inform an annual review. It felt that its Interim Provision Service (IPS) would be better placed to inform an annual review after working with Z.
26. IPS phoned Ms X on 23 August to book an Interim Education Meeting (IEM). The first meeting was cancelled by Miss X due to other family pressures. IPS made attempts to arrange another meeting but had difficulty contacting Miss X. A second meeting was arranged for 27 September but Miss X failed to attend. The IEM took place on 7 October.
27. An IPS tutor made efforts to contact Miss X to carry out a risk assessment beginning on 14 October and finally made contact on 1 November. Miss X asked for sessions to begin on a Monday because a mid week start would be unsettling for Z. The first session was booked for 8 November 2011 but was cancelled by Miss X saying Z was ill. Miss X continued to cancel lessons and in March 2022 asked for sessions to be put on hold as Z’s behaviour was deteriorating. The tutor reported that Z was not engaging in sessions.
28. The EHC Plan annual review was carried out on 8 April 2022. At the review meeting, Miss X requested a reassessment of Z’s special educational needs. The review document states the Council will seek further guidance on the parental request for a full reassessment. The Council wrote to Miss X on 11 April sending a copy of the notes of the review meeting and said that if she wished to proceed to a full reassessment she would need to submit a formal request in writing and then it would be processed.
29. The IPS tutor made attempts to carry out welfare checks, provide work for Z, arrange an IEM from May to 10 August. On that date the Council sent a letter stating it would maintain Z’s EHC Plan while seeking an alternative school placement. It again stated Miss X would need to submit a request for a re-assessment in writing. The Council also wrote to Miss X saying that Z’s case was transferring to the 14-25 team and the annual review cycle had been closed for the year. On 15 August Miss X wrote to the Council formally requesting a full needs reassessment. The Council notified Miss X of its agreement to this request on 26 August.
30. The IPS tutor continued to try to make contact with Miss X to carry out a welfare check but had no response. IPS also invited Miss X to an IEM. On 24 October the IPS tutor contacted another family member who informed it Miss X was overwhelmed and this is why she had not responded.
31. The Council wrote to Miss X on 31 October with the outcome of the SEN reassessment. It said an EHC Plan would be issued naming mainstream placement. The Council sent the draft EHC Plan on 14 November and included a parental preference form. Miss X did not respond and the final EHC Plan was issued on 5 December saying mainstream but no actual school was named.
32. The Council consulted with over 21 mainstream and special schools between November 2022 and April 2023. All responses said they were either full or unable to meet Z’s needs. In May the case was presented at panel requesting to change the type of school to a special school. The Council declined the request.
33. On 18 May the Council wrote to Miss X saying the IPS was closing the case as Z was not engaging. On 26 June a further panel again considered the request to a change to special school type. The panel decided a specialist school setting was not appropriate for Z.
34. From May 2023 to January 2024, the Council was not providing Z any alternative education provision. In July 2023, Miss X’s MP contacted the Council on her behalf about the lack of education. The Council explained it was seeking a school setting for Z but had not yet identified one that could meet his needs.
35. In September 2023, Miss X made a formal complaint to the Council. In its response dated 16 October, the Council apologised for the lack of communication since Z’s education officer left in the summer. It said there were significant staffing capacity issues which had affected casework. It apologised for not keeping Miss X regularly updated about its actions to find a school placement and for the failure of IPS to provide suitable alternative education.
36. The annual review of Z’s EHC Plan took place on 24 November. On 14 December, the Council wrote to Miss X indicating its intention to amend the EHC Plan. It sent Miss X the draft amended EHC Plan on 23 January 2024 inviting comments by 7 February. The final EHC Plan should have been issued by 16 February.
37. Z’s case was re-opened with IPS and a suitable tutor was identified on 18 January 2024. Miss X explains that Z struggles to engage with sessions at home and so a room in a local library was sourced with sessions to commence from 30 January.

Analysis

38. Miss X complains Z has been out of school for over four years and about the impact this has had on him. As explained, I am considering actions since Z was taken off the school roll in August 2021.
39. The Council chose not to carry out an emergency review of Z’s EHC Plan in August 2021 after removing him from the school role. I have noted the Council’s reasons for doing this and, while there is no absolute duty on the Council to carry out a review in such circumstances, I consider it might have highlighted how Z’s educational needs could be met. As a review was not completed, Miss X is left with a level of uncertainty about how things may have turned out if the review had been carried out in August 2021.

Alternative education provision

40. Alternative education provision must be reasonably available and accessible in order for the Council to meet its duty under Section 19 of the Education Act 1996. The Council referred Z to its alternative education provider, IPS, in August 2021. I note that sessions with Z did not begin until November but I am not persuaded this was due to fault by the Council. The provision offered was a specialist out of school SEN teacher providing one to one sessions initially for three hours per week. The Council says one to one provision is intensive and it is best practice to build up the relationship between the child and the tutor. This is a starting point and additional hours can be requested.
41. Z struggled to engage with the sessions and many sessions were cancelled at Miss X’s request. In March 2022, Miss X requested a pause in the sessions due to a deterioration in Z’s mental health and a change in medication. The Council continued to make the sessions available and the tutor continued to try to make contact with Z and Miss X and to deliver homework. However, in May 2023 the service was cancelled as the Council said it could not continue to provide a service Z was not engaging with.
42. The Council’s duty is to provide a full time education that is accessible and available. There is no definition of full time and it would be acceptable to offer a reduced number of hours where a child could not cope with more. I am satisfied the Council provided alternative education from August 2021 to May 2023. However, it cancelled the IPS in May 2023 and no provision was made available until January 2024. This is fault.
43. The Council was aware from early 2022 that Z was not fully engaging with the tutor. While I am satisfied the alternative education provision was available and accessible when first offered, this situation changed. Miss X asked for sessions to be paused in March 2022 and the tutor ended a session early due to non-engagement. The tutor then began dropping off work for Z.
44. I have not seen sufficient evidence to show the Council properly considered whether the alternative education provision was accessible to Z from May 2022 onwards. The Council accepts there were communication issues at times and that it did not provide as much information as it should. I accept Miss X was struggling to engage with the IPS due to other family pressures and this made it more difficult for the Council but I have seen nothing to indicate it considered if provision could be provided differently and in a way that would enable Z to engage.
45. While I consider the Council could have done more to look at whether different provision could be provided which Z would engage with, I cannot say whether he would have engaged even if it had been. When Miss X and Z re-engaged with alternative provision in November 2023, this was again through IPS and was a tutor on a one to one basis.

Finding a school setting

46. All parties accept Z needs to be in a school setting. The Council considers his needs can be met at a mainstream school and Miss X considers a special school setting would be more suitable. Despite the best efforts of the Council in consulting more than 20 education settings, it has not been able to secure a place for Z since August 2021. This amounts to service failure and is an ongoing issue. The failure to provide a suitable school setting has caused Miss X and Z significant distress and uncertainty for a prolonged period.

Requiring a review request in writing

47. At Z’s annual review in April 2022, Miss X requested a full re-assessment of Z’s needs. This was in the context of Z not engaging with the alternative provision and with no school identified for him to attend. The notes of the annual review meeting indicate the Council would discuss this. It subsequently wrote to Miss X saying she would need to put the request in writing. She did this in August 2022.
48. There is no legislation that requires a review request to be made in writing so the failure to consider Miss X’s request during the annual review meeting is fault. The Council should have notified Miss X within 15 calendar days whether it agreed to the request and provide details of how to appeal. The Council then has 14 weeks to issue the final EHC Plan.
49. If the Council had properly accepted Miss X’s request for a reassessment at the annual review meeting on 8 April, it should have made the decision on whether to reassess by 23 April and then issued the final EHC Plan by 30 July. It actually took the Council until 5 December to issue the final EHC Plan following the reassessment. This amounts to delay of 22 weeks which caused further distress and uncertainty to Miss X and Z.
50. The faults identified in this case amount to prolonged and significant distress to Miss X and Z. The service failure to identify a suitable placement is ongoing and means Z is not receiving the type of education he has been assessed as needing and his special educational needs are not all being met. I am also aware that Miss X is vulnerable as a single parent with more than one child with SEN and other medical issues. The information provided shows she has been overwhelmed and unable to fully engage at times because of the very many demands placed upon her. The failures by the Council, including the failures to properly communicate with her as identified in the Council’s formal complaint response, have added to the pressures experienced and put her to avoidable time and trouble in having to pursue matters.
51. The Ombudsman’s Guidance on Remedies manual says we will normally recommend a payment for distress of up to £500 but we can recommend higher payments where we decide it was especially severe and/or prolonged and/or taking account of the personal vulnerability of those affected. I am therefore recommending a payment higher than £500 in this case.

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Agreed action

52. To remedy the injustice caused to Miss X and Z as a result of the fault identified above the Council should, within one month of my final decision take the following action:
• Provide a written apology to Miss X and Z;
• Make Miss X a symbolic payment of £1,500 to recognise the prolonged and significant distress experienced; and
• Make a payment of £3,600 to be used for the benefit of Z to recognise the loss of education provision from May 2023 to January 2024.
53. The Council should provide us with evidence it has complied with the above actions.
54. I initially made a service recommendation about reporting this decision to members. In response to my draft decision, the Council provided information saying that all Ombudsman decisions are reported to Cabinet and Full Council. I am satisfied with this action.

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Final decision

55. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman