Summary: Ms C complained about the Council’s delays in providing her son with education as set out in his Education, Health and Care plan. We find the Council was at fault when it delayed providing Ms C’s son with alternative education when he was out of school. The Council has agreed to our recommendations to address the injustice caused to Ms C and her son.

The complaint

1. Ms C complained about the Council’s delays in providing her son, D, with education as set out in his Education, Health and Care (EHC) plan. She says D was without any education for an academic year.
2. Ms C says she had to give up work for a year to look after D. She says D’s time out of school has been detrimental to his learning and mental health.

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. 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)
5. 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 decision with Ofsted.

Back to top

How I considered this complaint

6. I considered the information Ms C submitted with her complaint. I made written enquiries of the Council and considered the information it provided in response.
7. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and statutory guidance

8. 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. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
9. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
10. When a child or young person with an EHC plan moves into a local authority’s area, the EHC plan will need to be transferred to the new local authority.
11. As soon as the EHC plan has been transferred, the new local authority has the same legal duties as if they had issued the EHC plan themselves. The most important duty is to ensure the child or young person receives all the special educational provision specified in section F of their EHC plan. This is set out in Regulation 15 of the Special Educational Needs and Disability Regulations 2014.
12. The new local authority must review the EHC plan within either 12 months from the EHC plan being made or last reviewed, or three months from the date of the transfer, whichever is the later.
13. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. 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.
14. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.

What happened

15. D has complex needs and a diagnosis of autism. D attended school in a different council’s area and it issued him with an EHC plan.
16. Section F of D’s EHC plan said that he needed full access to the national curriculum, but it needed to be modified to suit his needs.
17. Ms C and D moved to the Council’s area at the end of July 2019. The Council received correspondence about D’s school placement from the previous council where Ms C and D were residents on 23 August. D was due to start his first year at secondary school in September.
18. The Council wrote to Ms C on 9 September and said D’s needs could be appropriately met in a special secondary school from September 2019. It said it was responsible for D’s EHC plan and would shortly issue a draft EHC plan.
19. The Council wrote to four schools on the same day and asked if they would accept D. The Council received a response from one school in October and it said it had no provision above year six. The Council received another response from a different school (School A) which said it could meet D’s needs but had no available places.
20. Ms C called the Council in November and asked for an update. The Council told her there were currently no available school places for D.
21. The Council officer (Officer A) that was dealing with the matter provided an update to another officer (Officer B) in the Council’s special educational needs department. Officer B asked Officer A to check with School A again and two other schools who had not responded.
22. Ms C called the Council in January 2020 and asked for an update on a school place for D. The Council discussed D’s case at a placement panel in the same month. A placement panel helps a council make the best decisions possible about the efficient education for children who have special educational needs. School A said it would take D, but it did not have any year seven spaces. The Council could not find any other schools to take D.
23. Ms C contacted the Council at the beginning of February and asked if it could provide any home tuition for D. The Council said it would chase another school (School B) for a response first as it had not responded to its consultation from September 2019. It did this on 14 February.
24. Ms C emailed the Council on 26 February. She complained D had been out of school for the whole academic year. She said the Council was in breach of its duty to provide D with an education.
25. In March, the COVID-19 pandemic started. Ms C made a formal complaint to the Council on 18 March. She said it was acting unlawfully by not providing D with education.
26. The Council contacted Ms C on 22 April to discuss providing support for D. It agreed to call her the following day.
27. The Council called Ms C the following day. She said she was struggling to educate D as she did not feel she had the skills. The Council agreed to send Ms C resources and it gave her advice on how to best support D.
28. The Council contacted Ms C on 28 April and confirmed School A had agreed to accept D from September.
29. The Council spoke to Ms C on 30 April. She said she was still waiting on the resources. The Council said it could write a set of simple cookery lessons, which would also help with D’s reading and maths skills. A further telephone call took place between Ms C and the Council on 7 May. The Council agreed to plan a structured school style day for D when more resources arrived.
30. The Council spoke to Ms C again on 14 May. She confirmed she had received resources from it to support D. The Council said it would arrange a video call with Ms C and D to start the following week. The purpose of the weekly sessions was to establish a timetable of activities and learning to reintroduce D back into formal learning.
31. Ms C cancelled the sessions, sometimes because D was unwell, or the family had other appointments. She emailed the Council at the beginning of July and said she was due to go on holiday and would not be back until 2 August.
32. Ms D also contacted the Ombudsman in July. This prompted the Council to formally responded to her complaint from March on 12 August. It said D was offered a place in April and so there was nothing more it could add. Ms C responded on the same day and said the Council delayed matters for eight months.
33. The Council issued a further response to Ms C’s complaint on 17 August. It accepted the time taken to find D suitable education took longer than normal and offered its apologies. It explained its teaching service did contact her to provide some teaching support and she did not take advantage of the meetings.
34. Ms C replied to the Council and asked it to provide her with financial help as she could not work while D was at home. She also said the Council should have arranged home tuition.
35. The Council issued a further response on 20 August. It said it could not offer compensation as there was no clear loss to her. Ms C replied and said she was still unhappy with the response. The Council referred her to the Ombudsman.
36. D started at School A in September.
37. The Council reviewed D’s EHC plan on 21 December. It issued Ms C with D’s draft EHC plan on 21 January 2021 and asked for her views.
38. The Council did not receive any comments from Ms C. It issued D’s final EHC plan on 15 April 2021.

Back to top

Analysis

39. The Council accepted it was responsible for D’s EHC plan in September 2019 and therefore it had a legal duty to provide him with the education set out in it. It was also aware he was not attending school. It should have arranged alternative education until it could find a school place for him. It failed to do this. This is fault.
40. I appreciate the Council had difficulties in finding a school place for D. However, it delayed chasing up School B until February 2020. This is fault. It should have been following up matters sooner as it knew D was not at school.
41. The Council says it attempted to provide some educational provision for D from 23 April 2020. I disagree. The sessions that took place from 23 April 2020 to 14 May 2020 were between the Council and Ms C. They did not involve D. The Council provided Ms C with resources and gave her ideas on how best to support D.
42. Section F of D’s EHC plan said he should have access to the full national curriculum, although it would be modified to suit his needs. The Council wrote to Ms C on 14 May 2020 and said it would arrange a weekly video call to establish a timetable of activities and learning for D.
43. A weekly session is not access to the full national curriculum. I appreciate that Ms C cancelled the sessions, but even if D had attended, it still would not have been adequate provision as per his EHC plan. Therefore, I do not accept that the Council met its legal duty.
44. The Council also delayed reviewing D’s EHC plan. It wrote to Ms C on 9 September 2019 and said it would shortly issue a draft amended EHC plan. However, it did review his plan until 21 December 2020. It sent Ms C its proposed draft EHC plan on 21 January 2021 and issued the final plan on 15 April 2021. The guidance makes it clear the EHC plan should have been reviewed by 1 March 2020, which is 12 months from when it was last reviewed.
45. I am satisfied the Council’s faults have caused a significant injustice to D. He was without any education for a significant period. Children have a legal right to an effective education and any time they miss is difficult to replace later.
46. There was also an injustice to Mrs C. The Council caused her avoidable distress by not making suitable alternative arrangements for D’s education. I note she contacted the Council several times for an update. The Council also did not provide a formal written response to Ms C’s complaint from March 2020 until prompted by the Ombudsman.
47. The delay in finalising D’s EHC plan has delayed Ms C’s right of appeal to the SEND Tribunal. However, I cannot conclude with any certainty that the delay has resulted in a loss of provision for D from September 2020 onwards when he started at School A. The provision in section F of D’s old and new EHC plan has not significantly changed. Therefore, even if the Council had issued the EHC plan when it should have done, D would have still been getting the same provision that he is now.
48. It is not for the Ombudsman to say the amount of education that would have been suitable for D. Our recommendations for financial remedy are usually a payment between £200 and £600 per month (£600 to £1800 per term) based on the child’s needs, whether any provision was in place and whether the period affected was a significant time in a child’s schooling.
49. D missed all his first year at secondary school. There is no evidence he had any suitable educational provision from September 2019 to June 2020 and he has complex needs. I therefore recommend a payment of £600 per month from September 2019 to June 2020, a total of £4,950. This calculation takes into consideration the school holidays.
50. I have not recommended a payment for July 2020 as D was abroad and so he would not have received any education anyway.

Agreed action

51. To remedy the injustice caused by fault, by 3 June 2021 the Council has agreed to:

• Pay Ms C £4,950 the loss of alternative education for D from September 2019 to the end of June 2020. We would suggest this payment is used for the educational benefit of D.
• Apologise to Ms C.
• Make a further payment of £250 to Ms C for the distress caused by the faults identified.

52. By 1 July 2021:

• Issue written reminders to its staff to ensure they understand:

1. The Council’s duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons or otherwise.
2. That when a child moves into the Council’s area, they must review the EHC plan within either 12 months from the EHC plan being made or last reviewed, or three months from the date of the transfer, whichever is the later.

Back to top

Final decision

53. I have found fault by the Council, causing an injustice to Ms C and D. The Council has agreed to my recommendations and so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman