Summary: Ms X complained that the Council placed her son in unsuitable educational provision and delayed in issuing his education, health and care plan. We have not investigated these complaints because they are late. Ms X also complained that the Council failed to make suitable alternative provision for her son after his educational placement broke down and failed to deliver the provision in his education, health and care plan. We found fault on the Council’s part. In recognition of the injustice caused, it has agreed to make a payment to Mrs X.

The complaint

1. Ms X complains that the Council:
• placed her son in unsuitable educational provision (between January and October 2022);
• delayed in issuing her son’s EHC plan and failed to comply with statutory timescales;
• failed to make suitable alternative provision between October 2022 and September 2023 after her son’s placement broke down;
• failed to deliver the provision in her son’s EHC plan; and
• delayed in responding to her complaint.
2. Ms X also complains about the actions of her son’s school.

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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. 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

5. I will exercise discretion to investigate back to October 2022 when the child’s placement broke down. I will not investigate matters which took place before this.
6. I will investigate Ms X’s complaint that the Council failed to put in place suitable alternative provision and failed to deliver the provision set out in her son’s EHC plan from October 2022 when his placement broke down until January 2023 when an amended EHC plan was issued and the appeal right arose. I cannot investigate these matters after January 2023 because we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal.

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How I considered this complaint

7. I have considered all the information provided by Ms X together with documents provided by the Council.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, health and care plan

9. 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.

Content of an EHC plan

10. 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

Maintaining the EHC plan

11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Reviewing EHC plans

12. 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.

Appeal rights

13. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Our jurisdiction when appeal rights have been engaged

14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. 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.
16. 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.

Injustice we cannot remedy because a right to appeal to tribunal was or could have been used

17. 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 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).

Alternative provision

18. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. 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))
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Key facts

23. C has been diagnosed with autistic spectrum disorder and anxiety management difficulties. He has special educational needs (SEN).
24. In early 2022 C was attending School Y, a mainstream secondary school, but was experiencing emotionally based school avoidance (EBSA). The school referred him to a Council service which provides part-time temporary education to children who cannot attend their home school for a prolonged period because of issues relating to their physical or mental health. C remained on School Y’s roll.
25. The school asked the Council to complete an EHC needs assessment in April 2022.
26. The Council completed an assessment and issued an EHC plan naming School Y in September. The provision set out in Section F of the plan included a key person to support C and a visual timetable.
27. In early October C’s placement at the temporary provision broke down. It advised it could not meet his needs without full-time one-to-one support.
28. An early review was held in November and Ms X requested amendments to C’s EHC plan including the addition of one-to-one support. It was agreed that School Y could not meet C’s needs so an alternative needed to be found.
29. In mid-January 2023 the Council issued an amended final EHC plan. The provision in Section F included: one-to-one support throughout the school day; a visual timetable; a weekly social skills group; and a key person for pastoral support. The plan named School Y.
30. Ms X complained to the Council about delay in issuing the EHC plan, the content of the plan and lack of education provision.
31. Ms X later appealed to the SEND Tribunal against the content of the EHC plan and the named placement as she wanted C to attend a special school.
32. In May the Council responded to Ms X’s stage 1 complaint and apologised for the delay in doing so. It accepted C had received no education from October 2022 until March 2023. It also explained that the situation that led to C losing his place at the temporary provision was because of an internal process error in connection with how the provision was funded. The Council apologised for this. The Council offered a remedy for the education C had missed.
33. On 5 September the Council issued a further EHC plan following discussions with Ms X. It named the special school she had requested. C was due to start Year 11 but the Council agreed that he should start in Year 10 so he could complete the full two-year GCSE programme at the school.
34. On 29 September Ms X made a stage 2 complaint to the Council.
35. In October a consent order was issued by the Tribunal.
36. The Council responded to Ms X’s stage 2 complaint on 22 December. It again accepted fault and offered an increased remedy for the injustice caused. She was dissatisfied with the response and complained to us.

Analysis

Loss of provision

37. Ms X says the Council failed to make suitable alternative provision for C when he was out of school between 3 October 2022 and 5 September 2023 and failed to deliver the provision specified in his EHC plan.
38. For the reasons explained in paragraph 6, I am only able to consider whether the Council put in place suitable alternative provision and delivered the provision in C’s EHC plan between early October 2022 and mid-January 2023 when the right of appeal arose.
39. C’s placement at the temporary education provision ended at the beginning of October 2022. He received no education between then and mid-January 2023. This was fault. Once it was clear C would be absent from school for 15 days or more the Council should have put in place alternative provision. I find it should have done this as soon as C’s placement broke down.
40. In its response to Ms X’s complaint, the Council accepted it had failed to meet its section 19 duty to provide C with a suitable full-time educational placement after he was discharged from the temporary provision in October 2022.
41. As a result of the Council’s fault, C missed out on education for almost a term. The Council also failed to make the provision specified in C’s EHC plan during this period. This was further fault.
42. At stage 2 of its complaints process, the Council offered to pay Ms X £1800 in recognition of the injustice caused to C by the failure to deliver the provision in his EHC plan and put in place alternative provision between October and March 2023. This equates to approximately £900 for the period October 2022 to January 2023. In addition, the Council arranged for C to attend a special school, starting in Year 10 rather than Year 11, so he could access a two-year GCSE programme. This additional year of education will make up for the education he missed. I consider the Council’s actions represent a satisfactory remedy for the injustice C suffered.
43. However, the Council’s fault also caused Ms X an injustice. She suffered distress and anxiety and was put to the inconvenience of chasing up the matter with the Council and in seeking help from a solicitor, a SEND advocate and her MP to try to resolve the situation. I have recommended a remedy for this below.

The Council’s complaints process

44. Miss X made a stage 1 complaint on 22 January 2023. The Council did not provide a response until 4 May. The Council’s complaints process states that the Council will respond to a stage 1 complaint within 10 working days. In this case, it took 72 working days.
45. Ms X made a stage 2 complaint on 29 September 2023. The Council responded on 22 December 2023. Its complaints process states that it will respond to a stage 2 complaint within 28 days. In this case it took 60 working days. Council says the delay was partly because it was instigating a new electronic process for handling stage 2 complaints, requiring staff training.
46. I find the delay in responding to Ms X’s complaint at both stages of the Council’s complaints process was fault and caused Ms X further distress and frustration. The Council apologised for this in it stage 2 response and offered to pay Ms X £250. I consider this to be a satisfactory remedy. I do not therefore propose to make any further recommendations in this regard. However, I understand the Council has not yet made this payment.

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Agreed action

47. In addition to the payments the Council has already offered Ms X, I recommend that, within one month of the Ombudsman’s final decision, it pays her a further £300 in recognition of the distress she suffered when C was out of school with no education.
48. The Council should provide us with evidence it has complied with the above actions.
49. The Council should also provide us with evidence that it has paid Ms X the £250 it offered for the delay in responding to her complaints.

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Final decision

50. I find fault causing injustice.
51. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman