Summary: there were problems following the emergency review of B’s Education, Health and Care (EHC) Plan on 26 June 2023. The Council accepts it failed to follow the statutory process, which resulted in delays, and should have had more robust oversight of alternative arrangements for B’s education when he stopped attending school. B did not attend school for one and a half terms, and although he received some alternative provision, it may not have been as much as he needed. In any event, it was considerably less than the full-time school place to which he was entitled.

The complaint

1. Mr F complains about disruption to his son B’s education. He complains B did not receive suitable education between June 2023 and February 2024.

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The Ombudsman’s role and powers

2. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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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How I considered this complaint

5. I have considered information provided by Mr F and the Council. I invited Mr F and the Council to comment on my draft decision.

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What I found

6. Mr F’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council.
7. He attended a special school for children with social, emotional and mental health needs.
8. The school held an emergency review of B’s EHC Plan on 26 June 2023. Things were not going well for B at school. The school proposed a ‘managed move’ to another school in the same Academy Trust.
9. The school arranged for a tutor to visit B at home until the end of the summer term. Tuition re-started after the summer holiday, but only after Mr F complained, and then only for 90 minutes a day.

Mr F’s complaint to the Council

10. Mr F complained to the Council that B was not receiving suitable education in September 2023. The Council responded in December 2023. The Council explained there were delays in the complaints process and said it would respond at stage one of its complaints process within 15 working days.
11. The Council responded at stage 1 of its complaints process on 16 January 2024. This was 14 working days later than promised, and almost 18 weeks after Mr F made his complaint. The Council apologised for the delay. The Council said it had advised B’s school that any changes to his EHC Plan must be made through the Council, and the Council must consult before naming the new school in B’s Plan. The Council said it had sent the consultation to the proposed new school and apologised the proper procedure had not been followed. The Council promised regular updates.
12. Unhappy with the Council’s response, Mr F asked the Council to respond at the second stage of its complaints process.
13. The Council responded on 15 February 2024. The Council acknowledged its stage one response had not addressed Mr F’s concerns and promised to reply by 29 February 2024.
14. The Council wrote to Mr F on 19 March 2024. Again, this was later than promised. The Council apologised for the delay.
15. The Council said:
• the school held an emergency annual review on 26 June 2023 as B was at risk of permanent exclusion. The school proposed a change of placement;
• the Council decided the school should try ‘other approaches’ before it would consider a change of placement;
• the school arranged one-to-one tuition in English and maths, initially at home but later in a local library, gym membership and a weekly visit to an alternative outdoor education provider;
• the school decided to move B to another school in the same Academy Trust;
• B started at a new school in the same Academy Trust on 19 February 2024.
16. The Council said it had worked collaboratively with the school to ensure B had access to a suitable education while an alternative school place was found.
17. The Council issued an amended EHC Plan on 15 February 2024 which said B would attend a new school (which was part of the same Academy Trust as his old school).
18. Unhappy with the Council’s response, Mr F complained to the Ombudsman. He complained B did not receive suitable education between June 2023 and February 2024.

Reviewing Education, Health and Care Plans

19. The procedure for reviewing and amending an Education, Health and Care Plan is set out in regulations and Government guidance.
20. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
21. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the Plan.
22. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within four weeks of the review meeting.
23. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
24. If the Council decides not to amend the Plan, it must also notify the parents within four weeks of the review meeting.
25. Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s decision following a review of their child’s EHC Plan.
26. The Council did not notify B’s parents of its decision following the emergency review meeting on 26 June 2023. This is fault.
27. It is not entirely clear what decision the Council made following the meeting.
28. At some point, it appears the Council agreed to amend B’s EHC Plan and began a consultation with the proposed new school. The Council issued an amended Plan on 15 February 2024, 33 weeks after the emergency review meeting.
29. If the Council had decided to amend B’s Plan following the meeting, this would have been 21 weeks late.
30. In its complaint response, the Council acknowledged that its failure to follow the statutory process to amend B’s EHC Plan caused delay. This is fault.
31. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
32. B did not attend school between 26 June 2023 (the emergency review) and 19 February 2024 (when he started at a new school), although he remained on roll. An earlier change of placement might have secured his return to school sooner, in which case the delay amending his EHC Plan caused significant injustice.
33. There is, however, considerable uncertainty, and it is difficult to say now what would have happened if the changes to B’s Plan had been made sooner. This uncertainty is itself an injustice.
34. In these circumstances, I will recommend a remedy for the uncertainty. But first I will consider the suitability of the alternative arrangements that were made for B’s education until he started at his new school.

Education for children who do not attend school

35. Parents, schools and councils all have responsibilities to ensure children receive a suitable education.
36. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
37. The Education Act 1996 says every council shall “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))
38. The Government has issued statutory guidance which Councils must follow unless they have good reason. The guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education.
39. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
40. In its complaints response, the Council said it had worked collaboratively with the school to ensure B had access to a suitable education while an alternative school place was secured.
41. I asked the Council for evidence of the collaboration. I asked to see the evidence which satisfied the Council B was receiving suitable education.
42. The Council did not send any evidence. Instead, it acknowledged that “more robust oversight of [B]’s provision would have been beneficial.”
43. The Council’s failure to check B was receiving suitable provision following the emergency review on 26 June 2023 is fault.
44. B was not without provision. His school made alternative arrangements. But without records that it made enquiries, the Council cannot now demonstrate that they were adequate. Furter, the longer B was out of school, the more evidence we would expect to see of the Council considering the options to secure his return.
45. There is, therefore, considerable uncertainty about whether B received suitable provision when he did not attend school. This uncertainty is an injustice.

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Agreed action

46. 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 Mr F and B, we may recommend the Council makes a symbolic payment.
47. The Council accepts it failed to follow the statutory process, which resulted in delays, and it should have had more robust oversight of alternative arrangements for B’s education when he stopped attending school.
48. As a result, B did not attend school for one and a half terms, and although he received some alternative provision, it may not have been as much as he needed. In any event, it was considerably less than the full-time school place to which he was entitled.
49. I recommended the Council:
• apologises for the faults I have identified;
• makes a symbolic payment of £1,500 to acknowledge the impact on B’s education.
50. The Council should make the apology and payment within six weeks of my final decision and send us with evidence it has completed the above actions.
51. The Council accepted my recommendations.
52. We can also make recommendations to ensure similar faults do not happen in the future. Ofsted, the regulator, recently carried out an inspection and made recommendations for improvement, including in relation to reviews of EHC Plans. We have also made recommendations following five recent investigations. I will not, therefore, make further recommendations.

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Final decision

53. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman