Summary: Mrs X complains the Council failed to ensure Child Y had access to suitable education and delayed its duties to their Education, Health and Care Plan. Mrs X says this meant Child Y was without education and the agreed support. The Ombudsman finds fault with the Council for failing to secure alternative provision, for failing to comply with the EHCP regulations, and for its complaint handling. The Council has agreed to make a financial payment in recognition of the missed provision and distress caused.

The complaint

1. Mrs X complains the Council failed to ensure her child access to suitable education when they were out of school due to health needs.
2. Mrs X complains the Council has failed to put in suitable support according to her child’s needs and has failed to meet its duties as set out in the EHCP.
3. Mrs X also complains about the Council’s complaints handling and the unnecessary delay in remedying the complaint and providing the much-needed support to her child.

Back to top

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. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I made enquiries of the Council and spoke to Mrs X about her complaint.
8. I invited Mrs X and the Council to comment on a draft of my decision.

Back to top

What I found

Legislation and guidance

EHC needs assessment and plans

9. An EHC plan sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the SEN provision and Section I names the suitable placement.
10. 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. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Children out of school because of medical needs

12. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
13. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
14. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
15. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
16. What happened
17. Mrs X has a child, Child Y, who has an EHCP maintained by the Council. In the summer of 2022, Child Y experienced severe trauma. As a result, their attendance to school declined rapidly.
18. In November 2022 the School wrote to the Council seeking extra funding to support Child Y and to review the EHCP.
19. The Council reviewed the EHCP in December 2022 and issued a draft EHCP.
20. In January 2023, Child Y’s school sought support from the Council for Child Y. The School was concerned about their wellbeing following the trauma, and that they could no longer come to school. The School asked the Council to source suitable alternative provision for Child Y and to update the EHCP.
21. In February 2023 Child Y’s GP provided a certificate to say Child Y was suffering from anxiety and depression. Mrs X gave this information to the Council and asked for alternative provision.
22. The School held an annual review meeting for Child Y’s EHCP in March 2023. It sent the information to the Council but the Council did not make a decision to amend or maintain the plan.
23. The Council agreed to source alternative provision for Child Y.
24. Between May 2023 and July 2023, the Council consulted tuition services and alternative provision providers to discuss the best support for Child Y. It also consulted with the School to discuss how best to support Child Y to return.
25. Child Y tried to reintegrate to School in May 2023 with a part time timetable. This was to be supported with one-to-one support in school and alternative provision in the form of tuition provided by the Council. However, the tuition service was not available, and the one-to-one support not consistent. Child Y continued to experience issues attending school and was temporarily excluded.
26. The School asked for an Educational Psychology assessment in May 2023, and this was carried out in July 2023. The report from the EP service set out Child Y’s needs and what support they may benefit.
27. The Council issued an amended EHCP in June 2023 with the information from the March 2023 annual review.
28. The Council approved funding for increased support from September 2023 to support Child Y in school.
29. Mrs X complained to the Council. In her complaint she said the Council had not arranged alternative provision for Child Y since they were out of education.
30. The Council responded to Mrs X’s complaint on 21st June 2023. In its first response it said

• It recognised what Child Y had experienced and would work with Mrs X to ensure support was in place.
• It believed there was support for Child Y to reintegrate from May 2023.
• It would look at extra tuition to top up Child Y’s education.

31. Mrs X was unhappy with the response and asked the Council to consider her complaint at stage two on 21st June 2023
32. The Council appointed an Independent Officer (IO) to investigate the complaint, who sent their response to the Council in November 2023. The Council issued its final response to Mrs X in December 2023. The response said:

• The Council had a responsibility to maintain the EHCP and make sure the alternative provision was in place, which it had not done.
• It accepted the delay in reviewing, amending and issuing decisions for Child Y’s EHCP, and there had been issues in arranging the alternative provision.
• It accepted Child Y’s plan needed reviewing further because of a new diagnosis.
• It offered Mrs X £2000 in recognition of the distress and missed provision.

33. Child Y was able to reintegrate back to school in September 2023. Mrs X paid for extra tuition to support Child Y in the lead up to their exams. The Council reviewed Child Y’s EHCP in February 2024 and issued a new EHCP.

Analysis

Alternative provision

34. The Council’s complaints process has already upheld the Council did not arrange alternative provision for Child Y when it should have done. It had accepted Child Y could not attend school and so it should have arranged provision.
35. I can see the Council did make some efforts to arrange provision. However, this does not relieve it of the duty to arrange and deliver suitable education to Child Y, as already set out in the stage two response. It remains that Child Y was without education from February 2023 to May 2023 and without the full agreed alternative provision from May 2023 to July 2023.
36. The Council’s offer to Mrs X of a financial remedy of £2000 is not in line with our guidance on remedies and it is unclear how the Council reached this amount.
37. Given that Child Y had very little education or provision between February 2023 and July 2023, and was at a key milestone with impending major exams, I consider the injustice to them to be significant. I am therefore recommending a remedy to reflect this.

EHCP process and delay

38. The Council reviewed and issued Child Y’s EHCP in December 2022. It did not issue a decision about whether to maintain or amend the plan.
39. The School sent the Council the paperwork for a new review in March 2023. At this point the Council should have completed the review and issued a decision whether to amend or maintain the plan. It failed to do this until June 2023.
40. This was a delay causing distress and uncertainty to Mrs X, as well as a delay in her appeal rights.

Complaint handling

41. Part of Mrs X’s complaint is the Council delayed considering her complaint and delayed carrying out the agreed actions.
42. The Council’s policy says it will respond to complaints at stage one within 20 working days, and at stage two within 65 working days.
43. The IO report admits that they had not returned the report to the Council within the initial timeframe and had required an extension. Mrs X requested the stage two response on 21st June 2023 and the final response from the Council was sent on 1st December 2023. This is approximately 117 working days, and significantly outside of the Council’s policy of 65 working days. This was fault by the Council, causing Mrs X further distress.
44. Mrs X is also specifically referring to the acknowledgement from the Council in its final response that it would review whether Child Y should receive top up support in the lead up to their exams. This would give them the opportunity to catch up on the education they had missed. The Council said it would ask the SEND department to review this request and inform Mrs X of the outcome.
45. When I spoke to Mrs X as part of my investigation, Child Y was due to sit their exams imminently, and Mrs X had not received an update from the Council. Mrs X had therefore sourced her own tuition to support Child Y in the lead up to their exams. The Council did not evidenced to me that it completed this action.
46. It was fault by the Council to fail to complete the agreed actions, and if it has completed this action, it has not told Mrs X of the outcome. Either way, there is fault by the Council causing distress and uncertainty to Mrs X at an already difficult time. I have considered whether there was further injustice to Child Y because of this, however, the top up tuition was because of missed education, which I have already addressed in paragraphs 35-38 and provided a remedy for.

Further considerations

47. I have considered whether to recommend service improvements for the Council. However, I am aware we have issued several decisions of a similar nature in recent months, and the Council has already agreed to service improvements which would address the issues from this complaint. I am therefore not recommending any further service improvements.

Back to top

Agreed action

48. Within 4 weeks the Council has agreed to

• Pay Mrs X £3600 to recognise the loss of educational provision for Child Y. This is calculated at £2400 for the time Child Y was without any education, and £1200 for the time they were without the full provision.
• Pay Mrs X £500. This is in recognition of the distress, uncertainty and delayed appeal rights.

49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I have completed my investigation. I find fault with the Council for failing to arrange and deliver alternative provision, and for delaying reviewing EHCP and delaying issuing its decisions. I also find fault with the Council for its complaint handling.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman