Summary: Mr B complains about the Council’s role in ensuring that the provision specified in his son’s Education Health and Care (EHC) plan was made. The Council failed to ensure that C received the support specified in his EHC plan or to provide alternative education. The Council will apologise and make a payment to Mr B to remedy the injustice caused to him and C by the failings.

The complaint

1. Mr B complains about the Council’s role in ensuring that the provision specified in his son’s Education Health and Care (EHC) plan was made.

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What I have investigated

2. I have investigated events since September 2017. I refer to earlier events by way of background.

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The Ombudsman’s role and powers

3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’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. 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)
8. 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 report with Ofsted.

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How I considered this complaint

9. I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

The law and statutory guidance

Education, Health and Care plans (EHC plans)

10. Under the Children and Families Act 2014, when an Education, Health and Care assessment is completed by a local authority and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
11. The Special Educational Needs and Disability Code of Practice (‘the Code’) issued in January 2015 says, “the purpose of an EHC plan is to make special educational provision to meet the special educational needs of the child or young person” (section 9). The plan sets out the child’s needs and what arrangements should be made to meet them. EHC plans are for children and young people up to the age of 25.
12. Councils have a duty to make sure the child or young person gets the special educational provision set out in an EHC plan (Children and Families Act 2014, section 42).

Appeals

13. A child’s parent can appeal to the first-tier tribunal to challenge the content of an EHC plan. This includes appealing against the school or other institution named in the plan.

Annual reviews

14. The annual review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Statement. Schools are responsible for convening a review.
15. The Code says reviews should consider the special educational provision made for the child. Following a review, the school must send a report to the council to consider what changes, if any, should be made to the statement.

Alternative education

16. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for 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”. (Education Act 1996, section 19)
17. 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 16(6))
18. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
19. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education. (Statutory Guidance ‘Children Missing Education’)
20. Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests.
21. Our Focus Report, Out of school…out of mind? (2016) gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. It says councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

22. Mr B’s son, C, has autism. He had an EHC plan and started in reception at school 1 in September 2016. Mr B says that when C started at school he was told he would only be able to attend for 2.5 hours a day. That happened for the whole year.
23. There was the annual review of the EHC plan in May 2017. The information provided by the Council shows Mr B requested a change of school. Two months later the Council consulted the requested school. It said it could not meet C’s needs.
24. In September 2017 C was to move into year 1. Mr B says that school 1 told him it could not support C and not to send him to school. Mr B contacted the Council over September and October asking about alternative provision and saying that C was not in school. The Council consulted two other schools.
25. There was a meeting on 20 November. Following the meeting school 1 told the Council the parents had requested a change of provision at the review in May, that C had not attended school since the start of the September term and had been removed from the school roll.
26. In early December the Council consulted two further schools including school 2. In late December it issued a final EHC plan naming school 1.
27. Over the early part of 2018 there was contact between the Council and school 2. The Council considered school 1 could apply for extra needs funding to assist it in making the provision needed by C. The intention being that school 2 could help in this process but there is no indication that school 1 did anything about this. The Council was looking to school 2 as the likely best placement for C but school 2 did not consider there was enough information for it to be able to assess whether it could meet his needs. Following reports by speech and language therapy and communication and autism advisory support the Council named school 2 on the EHC plan. That was issued at the end of May. C started there in June 2018.

Analysis

Educational provision

28. I have little information about what happened at the review in May 2017 but it is clear the intention was that C should not continue at school 1. The Council consulted one other school who could not meet his needs but there is no other action so there was nothing in place for the start of the September term. I have no reason to doubt what Mr B has told me that school 1 said that C should not return there as that fits with the information they later provided to the Council.
29. The Council knew C was not in school but did nothing to arrange any alternative educational provision for him. It consulted two other schools at the end of October. One declined to take C. I do not know what happened about the other but, in any event, the Council did not pursue it. In December it issued a final EHC plan naming school 1. Mr B could have appealed against that decision to the SEND tribunal but I can understand why he did not do so as negotiations were continuing with the Council. As Mr B has not appealed I have discretion to consider that decision. The Council has provided no justification for naming school 1 which by that point was clear was not going to make the necessary provision for C.
30. Over early 2018 there was further delay. This was because school 2 did not consider it had enough information about C’s needs or certainty about how finance would be provided for it to meet his needs.
31. In responding to Mr B’s complaint the Council accepted it had not handled this as it should. There had been delay and a failure to follow things up. Mr B said that he had been spending £500 a month on support for C. The Council offered a payment of £750 in recognition of the failings.

Injustice and remedy

32. Where fault has resulted in the loss of educational provision, we will usually recommend a payment of between £600 and £1800 a term to acknowledge the impact of that loss. Much of the support C needed was around his speech and language development. He needed 1:1 support throughout the day. I consider that this falls in the middle to upper of the range of payments we would consider and the Council should make a payment of £1500 for each term of missed education. C missed two and half terms so the Council should pay Mr B £3750.
33. Mr B has also been put to time and trouble in pursuing the matter with the Council and then in complaining. The Council will pay a further £250 in recognition of that.

Agreed action

34. The Council will:
• apologise to Mr B for failing to ensure that C received the support specified in his EHC plan or to provide alternate education; and,
• pay him £4000.
35. This should be completed within one month of the final decision statement.

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Final decision

36. The Council failed to ensure that C received the support specified in his EHC plan or to provide alternative education. The Council will apologise and make a payment to Mr B to remedy the injustice caused to him and C by the failings.

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What I have not investigated

37. I have not investigated the events surrounding C’s first school year. Mr B did not raise this as a complaint and was clear that his complaint was about when C moved into year 1.

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Investigator's decision on behalf of the Ombudsman