Summary: We upheld Miss X’s complaint about the Council’s handling of her daughter Y’s education, health and care (EHC) plan and education provision. The Council delayed holding a review and arranging alternative provision for Y. There were also errors in the way it amended Y’s plan before she moved to secondary school. The Council will apologise, make a payment to Miss X and Y to remedy the injustice caused, and review how it amends plans when children move between primary and secondary school.

The complaint

1. Miss X complains about the Council’s handling of her daughter’s education, health and care (EHC) plan and education provision. She says it:
1. delayed in reviewing her daughter’s EHC plan when she stopped attending school regularly;
2. failed to finalise her daughter’s EHC plan in time for her to transition to secondary school; and
3. failed to offer alternative provision when her daughter could not attend school.
2. Miss X says as a result her daughter has become socially isolated and fallen behind her peers academically. She says the situation has also placed a burden on the rest of the family.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)

Back to top

How I considered this complaint

7. I considered the complaint made by Miss X and the documents she provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. I took account of the Ombudsman’s focus report, ‘Out of school…out of mind? How councils can do more to give children out of school a good education’ published in 2011 and revised in 2016.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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

What I found

Legislation and guidance

Education, health and care plans

12. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
13. The Act says councils must have regard to:
• the views, wishes and feelings of children and their parents; and
• the importance of children and their parents taking part as fully as possible in decisions.
14. A child with special educational needs may have an education, health and care (EHC) plan. This 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 education, or name a different school. Only the SEND tribunal can do this.
15. The Council must make sure that arrangements named 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.

Reviewing EHC plans

16. The Code says councils must review EHC plans at least annually. The review should focus on the child’s progress towards achieving the outcomes specified in the plan and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
17. When a child does not attend school, the council arranges the review. It must give those invited at least two weeks’ notice of the date of the meeting. It must also seek advice and information about the child from all parties invited, including the child’s parent, and send any advice and information gathered to all those invited at least two weeks before the meeting.
18. The council must prepare and send a report to everyone invited within two weeks of the meeting, setting out recommendations on any amendments required to the plan.
19. Within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend it, or cease to maintain it, and tell the child’s parents. If the council intends to amend the plan, it should start this without delay.
20. When a council proposes to amend a plan, it must send the child’s parents a copy of the existing plan and a notice explaining the proposed amendments. Parents may ask for a meeting with the council to discuss the proposed changes.
21. Councils must give parents at least 15 calendar days to comment and make representations on the proposed changes, including asking for a particular school be named on the plan.
22. When a child is moving between phases of education, for example from primary to secondary school, the council must review and amend the plan in enough time for the new school to arrange provision for the child. Councils must complete the review and any amendments by 15 February in the calendar year of the transfer.
23. In this Council, parents of children with EHC plans approaching the transfer to secondary school are asked to state a preference for schools in September of Year 6. Parents can say what type of school they would prefer and name up to three schools in order of preference. If a parent expresses a preference for a special school, they can only name one special school in their list of preferences. They are required to name two mainstream schools as their other preferences.

Children out of school

24. Section 19 of the Education Act 1996 says councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
25. There is no statutory deadline to start provision for children who cannot attend school because of illness. However, statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’, says councils should arrange it as soon as it is clear a child will be absent for more than 15 days. It should be in place by the sixth day of absence. When a child is absent for reasons other than illness or exclusion, councils should ensure they arrange alternative provision as quickly as possible.
26. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear medical reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated.
27. The Ombudsman’s focus report, referred to in paragraph 8, made recommendations to councils about provision for children out of school. This included:
• consulting all professionals involved in the child’s education and welfare, taking account of the evidence in coming to decisions.
• keeping all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Back to top

What happened

28. At the time of the events complained about Miss X’s daughter, Y, was in Year 6. The Council issued a final EHC plan for Y in September 2019 naming a mainstream school. The plan included support for Y with her academic learning but also with her social interaction and emotional wellbeing.
29. Y quickly began showing signs of difficulty attending school. By November, her attendance was 43%. Miss X asked the Council to hold an emergency review of Y’s EHC plan. She said she could not get Y to attend school and would like her to attend a special school. Y’s caseworker was absent from work so there was a delay in responding to Miss X. The caseworker told Miss X the special school panel would discuss her request.
30. In early December Y’s school sent a referral to the Council’s outreach team, which supports children who are not attending school full-time, for support with Y’s attendance. The Council says it did not receive the request until the end of the school term. The school also held a meeting with Miss X to discuss options for Y’s attendance moving forward, including the possibility of fines for unauthorised absence.
31. Miss X complained to the Council about the lack of provision for Y in mid-December. She reminded the Council of its duties to provide a suitable education for children out of school due to illness and asked the Council to look at alternative provision for Y.
32. In early January 2020, the Council appointed a specialist teacher from the outreach team to Y’s case. The teacher contacted Y’s school and then met Y and Miss X at home in mid-January.
33. The Council responded to Miss X’s complaint. It said the outreach team would be coordinating a tutoring package for Y. The specialist teacher would report Y’s development and progress in these sessions back to her school and this would contribute to the review meeting. The Council said it was important the EHC review took place to ensure it named suitable provision in Y’s amended final plan.
34. An officer completed a referral for tuition for Y. The referral said Y could not attend school because of her high levels of anxiety. The tuition was intended to bridge the gap while the Council looked for a suitable placement. The referral was for four hours of tuition a week, building to ten hours. Tuition began the following week and the outreach team also met with Y once a week to get to know her.
35. In early February, Miss X asked for her complaint to be considered at stage two of the Council’s complaints procedure. She was unhappy with the Council’s decision that Y could attend a mainstream secondary school.
36. The Council arranged a meeting for 12 February. However, Miss X said neither she nor Y had been asked for their views before the meeting and so it was not considered a formal review. Attendees at the meeting discussed retrospectively authorising Y’s absences from school. There was a difference of opinion about whether Miss X’s preferred specialist placement would provide enough challenge for Y academically. The Council agreed to seek a view from the headteacher of another school about Y attending there. A date was set for the formal review.
37. On 13 February, the Council sent Miss X a final amended plan for Y, naming her current school until the end of July 2020 and a mainstream secondary school from September onwards. Miss X appealed to the SEND tribunal.
38. The Council responded to Miss X’s complaint at the end of February. The Council said Miss X had a right of appeal about Y’s first EHC plan until the end of November 2019. It apologised if Miss X felt her views had not been sought before the review meeting which took place in February. It considered there had been ongoing work to find out her views in her discussions with Y’s caseworker and the specialist teacher. It said it was the Council’s normal practice to issue a final amended plan to ensure parents have a timely right of appeal if necessary. The Council said, “The alternative to this is that following year 5 annual reviews for children with existing EHCPs that are usually held in the summer term or those being issued a new EHCP that we wait to issue the final or the amended final until secondary provision can be named.” It said this approach would not offer an appropriate level of service.
39. The review meeting took place in March. The Council said there is no written record of this meeting because the time was spent making proposed changes to Y’s EHC plan.
40. From March onwards E attended an alternative provision. Miss X’s appeal ended in October 2020, with the Council and Miss X agreeing to name a special school placement.
41. Miss X says as a result of the Council’s actions her daughter has become socially isolated and fallen behind her peers academically. She says the situation has also placed a burden on the rest of the family.

Analysis

Jurisdiction

42. There are limits on our powers which mean we cannot consider all of this complaint. Where there is a right of appeal to the SEND tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014). I cannot, therefore, investigate either the decisions subject to an appeal or the consequences arising from the tribunal’s decisions. This means I cannot consider the period where Miss X exercised her right of appeal.
43. I will consider each of Miss X’s complaints below.

a) The Council delayed in reviewing her daughter’s EHC plan when she stopped attending school regularly

44. Miss X asked for an emergency review meeting on 11 November. The review did not take place until 4 March, 16 weeks later. The Code does not set a time limit to hold an early review meeting, however I consider four weeks is enough time to arrange the meeting, allowing time to gather and circulate information. This delay was fault.
45. The Council said it thought it would be useful to have the intervention from the outreach team in place before it reviewed Y’s plan. But there is no evidence it told Miss X this was the reason for the delay. The Council could have arranged a review meeting in response to Miss X’s request and, if necessary, arranged a further review meeting once more information was available from those working with Y.
46. The Council failed to seek advice and information from Miss X and Y before the meeting in February. The Council remedied this at the time by arranging another meeting and allowing time for Miss X and Y to give their views.
47. The Council failed to prepare and send a report of the review meeting in March. This is a requirement of the Code and is fault.
48. The delay in holding the review meeting caused frustration to Miss X. The Council had told her it would amend Y’s EHC plan after holding the review meeting, so the delay also caused uncertainty for Miss X about when the plan would be amended.

b) The Council failed to finalise her daughter’s EHC plan in time for her to transition to secondary school

49. The Council did finalise an EHC plan for Y by the statutory deadline of 15 February. However, it did not follow the Code.
50. In mid-January, the Council told Miss X Y’s plan would need to be reviewed before it could issue an amended final plan. But it issued a plan before the formal review meeting took place. This was fault.
51. The Council failed to issue an amendment notice showing its proposed changes to Y’s plan for Miss X to comment on. This was also fault.
52. The lack of review and consultation meant the Council failed to have regard to Miss X and Y’s views and allow them to take part as fully as possible in decisions about Y’s EHC plan. These faults meant Miss X felt excluded from the process of identifying a secondary school placement for Y.
53. I do not agree with the Council’s view that issuing a final amended plan without carrying out a review is an appropriate level of service. The Code is clear that plans must be reviewed and amended, allowing time for parents to comment, before being finalised. Decisions about the content of plans should be made openly and collaboratively with children and their parents. The Council’s approach is not in line with the Code and is fault.
54. I am also concerned about the way the Council asks parents to state their preferences for schools for children with EHC plans. The Council only allows parents to state a preference for one special school and insists they also name two mainstream schools. Miss X said this meant she put down the name of two schools which she did not think were suitable for Y, just so she could submit her request.
55. It is likely that for some children, particularly those who have severe learning difficulties or disabilities, no mainstream school would be able to meet their needs. Allowing parents to state a preference for more than one special school would not prevent the Council from naming a mainstream school in the final amended plan. By allowing parents to only name one preferred special school and insisting they name two mainstream schools, the Council is limiting choice. This is not in the spirit of the Code which stresses offering greater choice and control for children and parents over their support.
56. I cannot question the Council’s decision to name a mainstream secondary school for Y. Miss X appealed to the SEND tribunal about this.

c) The Council failed to offer alternative provision when her daughter could not attend school

57. Y stopped attending school on 11 November, the day Miss X asked the Council to arrange an emergency review of her EHC plan. The Council accepts this was because of her high level of anxiety, a health need.
58. When Miss X requested the review meeting, Y had already missed 18 days of school and Miss X could not get her to attend school. The Council should have put provision in place by 18 November, the sixth day of Y’s absence. It did not start offering tuition until the end of January, eight school weeks later. This was fault and meant Y missed educational provision she was entitled to. It also caused inconvenience to Miss X who had to rearrange her working hours to ensure Y was not left at home alone.
59. Once it did arrange provision, the Council did not say how it decided the amount of tuition for Y. As Y was receiving one-to-one tuition, the Council did not need to provide a full timetable of 22 to 25 hours. However, it is unclear how the Council decided four hours a week was suitable for Y to begin with. It may be that Y would not have been able to engage with more hours of education then because of the period she had been out of school. However, the lack of explanation for the Council’s decision creates uncertainty for Miss X about whether the provision was right for Y and whether she may have been able to access more hours of tuition.
60. It is also unclear how the education provided while Y was out of school delivered the provision in her EHC plan. The outreach team did carry out some direct work with Y to better understand her needs. But there was no provision to support Y to engage with her peers while receiving tuition at home. This was a key part of Y’s EHC plan and this lack of provision is fault.
61. I cannot consider the provision the Council offered to Y after it issued a final plan in February 2020. Miss X appealed to the SEND tribunal about the schools named in Section I.

Agreed action

62. Within four weeks of this decision, to remedy the injustice caused, the Council will:
• apologise to Miss X and Y for the faults identified in this investigation.
• pay Y £1,200 to recognise the loss of education and special educational needs provision from 18 November to 13 February. In calculating this remedy, I considered the provision Y received, her special educational needs and her being at a key transition point. Miss X can use this money for Y’s educational benefit to ensure she catches up, as far as possible, on provision she missed.
• pay £300 to Miss X to recognise the uncertainty, frustration and inconvenience caused by the delay in holding a review and arranging tuition for Y, and issuing an amended plan without consultation.
63. Within three months of this decision the Council will review its approach to phase transfers between primary and secondary school and tell us how it will amend its process to ensure it is compliant with the Code. This will include:
• amending its online parental preference form to ensure it is not limiting parental choice;
• allowing time for review meetings to take place; and
• ensuring parents are given 15 days to comment on any proposed amendments.

Back to top

Final decision

64. I uphold this complaint. Miss X and Y have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman