Investigation

The complaint

1. Mr and Mrs X complained the Council failed to issue an updated education, health and care (EHC) plan for their son, Y, and to provide him with an education. Y has been out of school since March 2020 as he is clinically extremely vulnerable to COVID-19. He has also not received the provision in his EHC plan. Mr and Mrs X say Y’s education is suffering and he has fallen behind. Mr and Mrs X would like a financial remedy to address the lost provision and allow their son to catch up as best he can.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this report.

(Local Government Act 1974, section 26(6)(a), as amended)

5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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

Alternative provision

7. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils have the power to take enforcement action where they consider a child’s absence to be unauthorised.

8. Where a child cannot attend “because of illness or other reasons”, section 19 of the Education Act places a duty on a council to arrange suitable alternative education. The only exception is when suitable provision is already being made.

9. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN) they may have. It should be full time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.

10. Councils should try to arrange this alternative provision as soon as it is clear the child will be away from school for more than 15 school days, although there is no statutory timeframe.

11. The government has published guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’. This says alternative provision should address a pupil’s individual needs, including social and emotional needs, ensuring that pupils feel fully part of their school community, are able to stay in contact with classmates and have access to the opportunities enjoyed by their peers.

12. The guidance says to understand the needs of the child and choose the most appropriate provision, councils should work closely with medical professionals and the child's family, and consider the medical evidence. It also says:

“…where specific medical evidence, such as that provided by a medical consultant, is not quickly available, [councils] should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child. Once parents have provided evidence from a consultant, [councils] should not unnecessarily demand continuing evidence from the consultant without good reason, even where a child has long-term health problems. Evidence of the continuing additional health issues from the child’s GP should usually be sufficient. In cases where a [council] believes that a consultant’s on- going opinion is absolutely necessary, they should give parents sufficient time to contact the consultant to obtain the evidence.”

13. When deciding whether the council has a duty to provide alternative education, it has to consider whether the education it has already offered is “available and accessible to the child” and whether it is “reasonably practicable” for the child to attend. Councils must consider relevant information, including medical advice, when reaching this decision but are not obliged to follow medical advice.

14. We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This guides councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever

reason, do not attend school full time. The report made six recommendations for councils, including that they:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence 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; and choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education.

15. Our focus report states councils should not assume that schools shoulder the entire responsibility for a child’s education.

Education, health and care plans

16. 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.

17. 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.

18. Councils must make sure special educational needs provision in the EHC plan is 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.

19. 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.

20. 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.

21. 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.

22. Councils must give parents at least 15 calendar days to comment and make representations on the proposed changes, including asking for a particular school to be named in the plan. Councils must issue an amended final plan within eight weeks of issuing an amendment notice.

Mediation and appeals

23. The law gives parents a right of appeal over some parts of the EHC process. 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

24. Before appealing to the SEND tribunal, parents must consider mediation. The Code says:

“If parents or young people want it to, mediation can take place following decisions by a local authority not to carry out an EHC needs assessment, not to draw up an EHC plan, after they receive a final EHC plan or amended plan, following a decision not to amend an EHC plan or a decision to cease to maintain an EHC plan.”

25. When the council sends the parent notice of a decision which can be appealed to the SEND tribunal, it must tell the parent of their right to go to mediation and include the contact details for the mediation service. Parents can also seek mediation about health and social care sections of a plan.

26. Mediation must take place within 30 days of the mediation adviser telling the council the parent wants to go to mediation. The council must attend the mediation. The officer attending should be sufficiently senior and have the authority to make decisions during the mediation session.

27. If the council cannot arrange mediation within 30 days, it must tell the mediator who must issue a certificate within three days. Parents cannot appeal to the SEND tribunal without a mediation certificate. They have one month from receiving the certificate to register an appeal.

Impact of COVID-19 pandemic

28. On 23 March 2020, schools in England closed to most pupils as part of the first national lockdown, apart from the children of key workers and those who were vulnerable including children with EHC plans.

29. In the same month, the government released guidance on ‘shielding’ and protecting people defined as being extremely vulnerable to COVID-19. This outlined which health conditions identified somebody as extremely vulnerable and advised them to stay at home and avoid any face-to-face contact.

30. In May 2020, the Secretary of State for Education issued a notice which temporarily changed the duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice expired on 31 July 2020.

31. In May 2020, the government updated its guidance on shielding to include “other people [who] have also been classed as clinically extremely vulnerable, based on clinical judgement and an assessment of their needs.”

32. In June 2020, the government announced funding to support children to catch up on missed learning caused by COVID-19. Funding was allocated to schools and schools decided how to use it to support pupils’ education.

33. At the end of July 2020, the government paused shielding. It updated the guidance to say clinically extremely vulnerable children should attend school in line with the wider reopening of schools. In guidance issued to schools in August 2020, the government said, “some pupils no longer required to shield but who generally remain under the care of a specialist health professional may need to discuss their care with their health professional before returning to school in September… Where a pupil is unable to attend school because they are complying with clinical and/or public health advice, we expect schools to be able to immediately offer them access to remote education. Schools should monitor engagement with this activity.” This guidance remained in place through the autumn term 2020.

34. The same guidance set out expectations for remote education if some children could not attend school. Schools were expected to provide access to high-quality online and offline resources. They were expected to set ambitious and meaningful work each day in different subjects and regularly check work. Remote education was expected to be of an equivalent length to the teaching pupils would receive in school, ideally including daily contact with teachers. Schools were expected to take account of pupils’ age, stage of development and special educational needs, for example where this would place a significant demand on parents’ help or support.

35. In January 2021, the government announced schools would close again and reintroduced shielding. While it reopened schools in March, it advised children who were extremely vulnerable to COVID-19 should not attend.

36. Shielding ended in April 2021. Updated guidance said clinically extremely vulnerable children “should attend school unless they were one of the very small number of pupils under paediatric or other specialist care and have been advised by their GP or clinician not to attend.” Schools had to provide remote education for pupils who could not attend school because they were complying with government guidance. This guidance remained in place for the rest of the school year and into the next.

37. Children aged five to eleven at higher risk from COVID-19 began receiving COVID-19 vaccinations in early 2022.

Human Rights Act 1998

38. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes Protocol 1, Article 2, “right to education”. The Act requires councils to respect and protect individuals’ rights.

39. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, when considering a complaint.

40. Organisations will often be able to show they have properly taken account of the Human Rights Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Our guidance

41. We publish guidance on effective complaint handling for councils. This reminds councils to investigate the issues, taking into account all the available facts and evidence. It says a good decision letter will set out the statement of complaint, what steps have been taken to investigate the complaint, what the investigating officer has taken account of, their decision and reasons for it, and any actions to be taken next.

How we considered this complaint

42. We produced this report after examining relevant documents provided by Mr and Mrs X and the Council.

43. We gave the complainants and the Council a confidential draft of this report and invited their comments. The comments received were considered before the report was finalised.

44. Mr and Mrs X provided a considerable amount of information. In this report, we have not referred to every element of that information, but we have not ignored its significance.

What we found

What happened

45. Y is nine and attends a special school. He has medical and learning needs including severe neuro-disabilities and speech and language delay.

46. The Council issued Y’s first EHC plan in 2016 and last amended it in November 2018. Special educational provision in his plan includes but is not limited to:

• an individualised programme of communication support delivered by a trained teaching assistant;

• a programme to improve his speech sounds;

• differentiated work;

• access to a system that allows him to communicate using pictures; and continued support by an occupational therapist.

47. The plan also includes speech and language therapy and occupational therapy as health provision, and social care support one day a week for two hours in term time.

2019

48. Y’s school held an annual review for Y in March. The school’s written record of the review said Y’s EHC plan needed to be amended in several areas. The amendments were recorded on a copy of Y’s plan. Mrs X asked for specialist occupational therapy to be added to the plan. The Council did not receive the school’s report from the annual review meeting until mid-May.

49. Between May and July, the Council considered Mrs X’s request for specialist occupational therapy. In August, it told Mrs X it did not agree to include this in the plan. The Council told Mrs X she could appeal to the SEND tribunal about its decision and had the right to request mediation.

50. The Council says it updated Y’s EHC plan after this but due to an administrative error it was not issued. It apologised to Mrs X about this in a complaint response in September 2020.

51. In October 2019, Mrs X asked for mediation. She says the mediator told her there was no time limit on mediation taking place. She says she continued to hold meetings with Y’s school, speech and language and occupational therapist while asking the Council to issue a final amended plan.

2020

52. The Council issued an amended draft plan in January. In February, the Council suggested delaying the final amended plan to allow further discussion to take place at Y’s annual review which was due in the next month. In later correspondence with Mrs X, the Council said it did not receive a written reply from her so assumed she had agreed to delay issuing the plan until after the annual review. Mrs X says she attempted to contact the Council by telephone during the first national lockdown without response. No annual review meeting took place in March.

53. Once schools closed due to COVID-19 in mid-March, Y struggled to engage in remote learning. Mrs X said he could not tolerate the noise and was distressed. His school offered printed resources instead. Mrs X says Y stopped receiving any teaching in April. Records from Y’s school suggest attempts were made to hold online sessions with Y and it provided some home learning materials.

54. Records from Y’s school suggest it invited Mr and Mrs X to attend an annual review meeting in May. It sent further emails as it did not hear back from them about attending. Mrs X later told the school she was waiting for further information from the speech and language therapy service and independent advisory groups. The school decided to postpone the annual review.

55. Y’s school wrote to Mrs X in July. It said his teacher would be teaching full time from September and would not be able to offer any online learning.

56. In early August, Y’s GP provided a letter which supported Mr and Mrs X’s request for alternative provision for Y from September. The GP said Y was in the clinically extremely vulnerable category and a precautionary approach should be taken in relation to COVID-19. Mrs X shared the letter with Y’s school.

57. Mr X exchanged emails with a community paediatrician about Y’s shielding status and a letter the family received in June which said he had been removed from the shielding list. He requested confirmation that Y’s clinical status was recorded correctly in NHS systems. At the end of August, the community paediatrician wrote to Mr and Mrs X confirming Y had been recognised as clinically extremely vulnerable in relation to COVID-19 and apologising for any distress caused by their previous correspondence. The paediatrician said Y’s status was recorded on community paediatrics’ systems.

58. In the same month, Mrs X submitted her first complaint about the Council’s handling of Y’s EHC plan and provision. She said the Council had failed to issue an amendment notice after Y’s annual review and failed to issue an amended plan. She said this had frustrated her right of appeal. The Council responded at stage one of its complaint procedure. It said it would issue an amended final plan once the reports from Y’s latest annual review were available. It did not address all the concerns she had raised.

59. When Y’s school reopened in September, it proposed a date for an annual review meeting. Mr and Mrs X said they agreed Y’s EHC plan needed to be made fit for purpose and for this to happen all parties needed to be involved. Y’s speech and language therapist was on leave and would not be able to participate in the meeting. Mr and Mrs X said the timescale proposed for the meeting was unworkable until all parties could be present. The school sought advice from the Council which said the annual review should go ahead.

60. At the same time, Mrs X asked the Council for alternative provision for Y. She identified a tutor familiar to Y. She also proposed beginning mediation and provided the Council with a working document setting out proposed amendments to Y’s EHC plan. As a result, the Council suspended its complaint investigations, saying investigating Mrs X’s concerns may prejudice the concurrent process of mediation.

61. Two weeks into the new school year, Y’s school contacted Mrs X to ask if there was any home learning support it could provide for him. It reiterated it could not provide online sessions but could provide some resources or ideas.

62. An annual review meeting scheduled for 1 October was postponed. The Council told Mrs X this was because the mediation service had asked on her behalf for it not to go ahead because mediation was a more appropriate way to resolve outstanding concerns about Y’s provision. The Council said a mediation meeting should be arranged by the beginning of November.

63. An internal email between Council officers in October noted the headteacher at Y’s school did not agree that Y was medically unfit to attend school and had sought further medical advice about the GP’s letter. The Council noted the community paediatrician had been in touch with one of Y’s consultants whose view was that Y was not medically exempt. The Council said the community paediatrician was seeking a view from another consultant then “will get in touch with the GP to revise their stance”. The Council noted it did not think Mr and Mrs X were aware of the discussions or actions agreed with the community paediatrician.

64. Y’s GP provided a further letter in October. This said both the GP and community paediatric team supported Y remaining on the clinically extremely vulnerable list while the pandemic continued. The letter restated the GP’s support for Mr and Mrs X’s request for alternative provision. Mrs X shared the letter with Y’s school.

65. An internal email at the end of October indicated the Council believed the annual review meeting had gone ahead that month, though it had not received a written report from the school. An officer noted, “Regarding provision…ultimately it is the [Council’s] responsibility to ensure it is delivered…The [Council] needs to decide if the provision parent has requested will be agreed and whether the school or the [Council] will fund.”

66. Around the same time, the Council contacted the Designated Clinical Officer (DCO) at the local NHS Clinical Commissioning Group. A DCO provides a point of contact for local partners to seek health advice about children who may have special educational needs or disabilities. The Council asked the DCO if they had been able to clarify the ‘appropriateness’ of the GP’s position in relation to Y’s attendance at school. The DCO said they had contacted a paediatrician to help them understand the latest situation.

67. Y’s school emailed the Council to say one consultant had said Y could not attend school due to a lack of knowledge about the impact on his health if he contracted COVID-19.

68. In November, Y’s school contacted Mrs X again. It asked how Y was getting on with the home learning it had provided some weeks earlier. Mrs X said she had to find extra activities to help Y make progress and was waiting on a response from the Council to the request for alternative provision. The school said it would provide some more home learning, but this was difficult because staff had not seen Y for some time and were unsure how much progress he had made or what was working well. It asked Mrs X what she had been doing with Y so it could provide meaningful and useful work for him. Mrs X asked the school whether it could make some of the catch-up funding the government provided available to support Y’s remote learning. The school said it would seek advice about using the funding, but Mrs X says she did not hear anything further.

69. In early November, the same community paediatrician Mr X had contacted in August wrote to the Council and Y’s school. They summarised the latest advice in relation to COVID-19 and the risk to children. They said based on the current guidance and the paediatrician’s understanding, Y did not meet the criteria for being considered as clinically extremely vulnerable. The paediatrician said they had not discussed the issue with Mr and Mrs X in the past six months (despite exchanging emails and a letter with Mr X three months earlier) but pointed out patients could only be removed from the shielding list by their GP or specialist, following consultation with the child and their family and other clinicians where appropriate. The paediatrician said Y’s GP had held discussions with the family and decided he should remain on the clinically extremely vulnerable list.

70. The Council wrote to Mrs X at the beginning of December. It said Y’s school had outlined the level of support provided to Y since March 2020 which it said had been maintained throughout and was in line with the guidance on remote education. It said the school would continue to provide remote education until discussions had taken place about alternative provision. The Council suggested an annual review should be arranged as soon as possible.

2021

71. When schools closed again in January, Y tried to access remote learning delivered by video. However, in an email to his school Mrs X explained the difficulties Y had with this. She said she had found it difficult to find relevant work in the school’s online resources which matched Y’s needs and was having to look for more appropriate resources to support him. In response, Y’s school said the Council would not accept a request for alternative provision without holding an annual review. The school said it would hold Y’s place until he could return to school. The last record of Y engaging in any education provision from his school is on 14 January 2021.

72. The Council wrote to Mrs X in February. It maintained Y’s school was meeting the requirements for remote education. It said the working document had taken time to update because it was lengthy and there were difficulties contacting the therapists involved for input. It said the document would be finalised and then a mediation meeting would be held. It advised once mediation was complete, it would ask Y’s school to set a date for the overdue annual review. In a further letter, on 12 March, the Council said it understood Y remained on the clinically extremely vulnerable list meaning he was unable to return to school.

73. In further correspondence to Mrs X the Council said that its “duty to address appropriate provision for Y is fully achieved by naming the most appropriate education placement, in this case [Y’s school].”

74. Two mediation meetings took place in March but Mrs X became unwell and two further meetings were postponed. Mr X asked the Council to continue developing the working document through mediation in writing rather than in virtual meetings, as a reasonable adjustment taking account of Mrs X’s illness. However, Mr and Mrs X did not receive anything further. Mr and Mrs X complained to us.

75. The school wrote to Mr and Mrs X at the end of March to invite them to an annual review meeting at the end of April, but the Council advised the school to postpone the meeting.

76. Y’s GP provided a third letter in April. This said Y remained clinically extremely vulnerable regardless of the withdrawal of shielding advice and would remain so until vaccination became possible. Mr X shared the letter with Y’s school.

77. In April, Y’s school wrote to Mr and Mrs X. It said the Department for Education’s guidance said pupils should have returned to school after they reopened on

8 March. It said it would not be able to authorise long-term absence from this point forward.

78. Y‘s school contacted the community paediatrician to ask for updated health information for a risk assessment for Y. The paediatrician said they had not seen Y since June 2019. They said hospital specialists’ opinions were that there were no clear reasons for Y to be kept out of school, but his GP took an alternative view. They suggested the school seek input from Y’s GP.

79. At the same time, the Council contacted the DCO again. It said the GP needed to complete the risk assessment and outline opportunities to mitigate the risk to Y or record the clinical risks that would increase if Y attended school. It highlighted the increased focus on school attendance since schools reopened in March.

80. At the end of April, Mr and Mrs X wrote to the Council and the school through the mediation service. They said they had not been consulted about the request for further input from health and had not consented to this. They said they did not consent to their data, including the family’s health data, being processed. They asked the Council what its proposed solution was to Y not being in school.

81. The Council contacted the DCO again for a view. The DCO said there was a difference of clinical opinion between the GP and specialist paediatricians, and they had requested support from them to liaise. They said Mr and Mrs X were clearly extremely scared of the impact COVID-19 could have on Y and the family, and their GP supported this view. The DCO suggested rebuilding trust and support so Mr and Mrs X could begin to feel more confident about their son’s safety at school.

82. In May, the Council sent a final letter to Mr and Mrs X though they did not receive it until September as it was sent to an email address at the mediation service which was not routinely monitored. On Y’s remote learning, it said it had “tried to find solutions in partnership with the school”. It remained of the view it had met its statutory duty to provide adequate education by naming and funding a place at a special school. It said it could not complete mediation without input from Mr and Mrs X. It said mediation needed to be completed to facilitate an annual review. The Council told Mr and Mrs X that if Y’s school supported their proposal for alternative provision, it could use some of the funding in place for Y to pay for this. It told Mr and Mrs X to speak to the school about this and about catch-up funding.

83. In September and December, Y’s school asked his parents to provide examples of work Y had completed every couple of weeks “so that we have an up-to-date picture of where Y is with his learning and that when he returns to school the minimum of time is wasted in baselining and getting to know Y again.”

2022

84. In late February, after we issued our draft report to the Council, Y’s school contacted Mr and Mrs X. It said it had spoken with the Council and could now offer some of the school’s funds to deliver alternative provision for Y that meets the needs outlined in his current EHC plan. It said this would include Mr and Mrs X’s preferred provider, who they had first suggested in September 2020.

Impact on Mr and Mrs X and Y

85. Mr and Mrs X told us they feel their family has been ignored by the Council. They feel misled by the Council about Y’s right to special educational provision. They say Y’s education is suffering, he is falling behind and nobody from the Council has contacted them to ask about Y’s wellbeing, their wellbeing or Y’s provision. Mr and Mrs X say the Council’s handling of the situation has caused them significant distress since March 2020, continues to cause significant distress to their family and they have spent many hours pursuing their complaint.

Conclusions

86. There were faults in the Council’s handling of Y’s education, health and care plan and education provision.

87. In relation to Y’s annual review in March 2019, the Council delayed seeking a report from Y’s school following the meeting. The Council did not issue a decision following the review or send Mr and Mrs X an amendment notice. This was fault. In its response to our draft report, the Council accepted it should have followed up the report and cited pressures due to COVID-19. However, this annual review took place a considerable period before the pandemic.

88. The Council failed to hold an annual review for Y in 2020 or 2021. While some disruption was to be expected in 2020 due to the COVID-19 pandemic, the Council has a duty to ensure the plan was reviewed annually and it has not done so. This is fault and means the needs, outcomes and provision in Y’s plan have not been reviewed.

89. The Council says Mr and Mrs X refused to engage in the annual review process. The correspondence we have seen suggests Mr and Mrs X gave cogent reasons for wanting to delay the annual review meetings. In any case, the duty was on the Council to review Y’s plan each year and, if necessary, issue an amended plan. It could have proceeded with annual review meetings without Mr and Mrs X attending and issued a decision about maintaining or amending Y’s plan, allowing Mr and Mrs X a right of appeal if they disagreed with the Council. Similarly, the Council said Mr and Mrs X would not ‘allow’ a final amended plan to be issued; the Council is the body responsible for issuing the amended plan and it should have done so within the statutory timescales.

90. There was no legal basis for the Council to signpost Mr and Mrs X to mediation or appeal following its decision about occupational therapy in July 2019. The Council had not issued a decision notice saying it was not going to amend Y’s plan, and it had not issued an amended final plan. The Council told Mr and Mrs X it updated Y’s plan in 2019 but failed to issue it. On balance we are satisfied the Council did intend to amend Y’s plan following the annual review and it should have told Mr and Mrs X this. Mr and Mrs X’s mediation and appeal rights were not engaged. The Council misled Mr and Mrs X and engaged them unnecessarily in a prolonged mediation process.

91. Despite issuing a draft amended plan in January 2020, the Council has still not issued a final amended plan for Y. Had the annual review process been completed correctly, it is our view a final plan should have been issued by September 2019, if not sooner. Instead, the Council has delayed for more than two years and frustrated Mr and Mrs X’s right of appeal.

92. The Council repeatedly failed to engage with or respond to Mr and Mrs X’s specific complaints about the handling of Y’s case, especially his annual review. Instead, it said issues would be addressed at future annual reviews or mediation. The purpose of the annual reviews and mediation was to consider Y’s progress and the future content of his EHC plan, not to respond to complaints. The Council’s failure to respond frustrated Mr and Mrs X and meant they were left without answers to their questions about Y’s plan and provision.

93. The Council’s insistence on an annual review being the only route to secure alternative provision for Y is fault. Mr and Mrs X were not seeking a permanent change to Y’s EHC plan but a temporary measure to secure suitable education for the period in which Y is unable to attend school. The Council has overlooked its duties under the Education Act 1996 to secure this, and this is fault. It means Y has been without alternative provision while he has been unable to attend school.

94. The Council did not inform Mr and Mrs X about discussions between the school, the Council and health professionals about Y’s clinical status in autumn 2020. It should have made them aware and involved them in these discussions. The Council’s failure to involve them caused them distress once they became aware.

95. In its correspondence with Mr and Mrs X, the Council accepted Y was clinically extremely vulnerable and could not return to school. It was not fault for the Council to want to seek an updated medical view once schools reopened in March 2021 as there was a renewed focus on children who remained out of school. However, if the Council did not accept Y’s GP’s view and required a consultant’s opinion, it should have communicated this to Mr and Mrs X and allowed sufficient time for them to contact the relevant consultants to obtain the evidence required. It did not do so, and this was fault.

96. The evidence provided by the Council shows there was no consensus about whether Y could safely return to school. Both the community paediatrician and the DCO acknowledged the GP’s view and that further discussion was needed about the difference in medical opinion. There is no evidence of follow up by the Council about this after April 2021. This is fault.

97. If the Council’s view was that Y needed to be in school and his parents were not complying with their duty to ensure he was receiving a full-time education, then it could have taken enforcement action to secure Y’s attendance. It did not. In failing to do so, we conclude the Council accepted Y was unable to attend school for reasons of illness or otherwise and it had a duty to arrange education for him.

98. There is evidence Y’s school provided some printed resources and online learning in September and November 2020 and January 2021, though Y had difficulties accessing these. The Council has been unable to tell us how the provision from the school satisfied the requirements for remote learning set out in paragraph 34 of this report. It also has not been able to tell us how it satisfied itself Y has received a full-time education suitable for his age, ability and aptitude since September 2020, or that the education offered was accessible to him given it was not practicable for him to attend. The Council failed to have due regard for Y’s human rights under Protocol 1, Article 2, the right to an education. As a result, at the time of writing Y has missed 14 months of education (excluding school holidays) and remains without the provision he is entitled to.

99. The Council has also been unable to demonstrate how it secured the provision in Y’s EHC plan in this period. In response to our enquiries, it said it had provided funding to Y’s school and expected it to deliver the provision. But the Council was aware Y has not been attending and it is ultimately responsible for securing the provision in the plan. It failed to do so. As a result, Y has not received the support he was entitled to.

100. The Council was not at fault for directing Mr and Mrs X to Y’s school to answer questions about catch-up funding. The Council was not responsible for administering this.

101. The Council’s response to our investigation has been disappointing. Despite us making written enquiries to the Council in September 2021 and following up with further requests, it failed to provide several documents until March 2022, after we issued our draft report for comments. In many parts of this report, we have had to rely on documents the family shared with us following a subject access request they made to the Council because documents were not forthcoming from the Council itself. The Council has a legal obligation to cooperate with our investigations, and we are concerned at the lack of diligence it has shown in response to our enquiries.

102. In its response to the draft report, the Council continued to disregard its statutory duties to arrange suitable education for Y and to secure the special educational provision in his EHC plan. It demonstrated an ongoing misunderstanding of the circumstances in which a right of appeal and mediation arises. The Council sought to blame Mr and Mrs X for the faults in this case, saying “all delays” in the annual review process were due to their “refusal to engage”. In seeking to place blame with Mr and Mrs X, the Council continues to overlook Y and its duties to meet his needs.

Recommendations

103. In making recommendations, we aim to put the person who has suffered an injustice back in the position they would have been in, but for the fault. Where that is not possible, we suggest a financial sum instead to recognise the injustice. This is not compensation. Compensation is a matter for a court and the sums awarded are on a different basis.

104. To remedy the injustice caused, we recommend the Council should:

• apologise to Mr and Mrs X, and Y, for the faults identified in this report;

• arrange alternative provision for Y which is suitable for his age, ability and aptitude until he can return to school. It should be full time unless the Council can show this would not be in Y’s best interests. If the Council decides to offer Y part-time education it must explain its decision and keep this under review;

• issue an amended final EHC plan for Y, in line with the agreed amendments in the latest version of the working document, and advise Mr and Mrs X of their right of appeal to the SEND tribunal;

• secure the provision in this amended final EHC plan and explain to Mr and Mrs X in writing how the provision will be delivered as part of or alongside Y’s alternative provision;

• set a date for an annual review following the issue of this amended final EHC plan;

• pay the family £7,000 to recognise the lack of education and special educational needs provision for Y from September 2020 to February 2022. This is based on our guidance on remedies which recommends a payment of between £200 and £600 a month for fault resulting in a loss of educational provision. We consider £500 a month to be suitable remedy, taking account of the provision in Y’s plan and his stage of education, the severity of his special educational needs, the limited evidence of provision being delivered and that additional provision is unlikely to remedy the loss. Mr and Mrs X can use this money to ensure Y catches up, as much as possible, on provision he has missed;

• pay a further £1,000 to recognise the stress, frustration and time and trouble caused to the family by the faults identified in this investigation; and consider appointing an officer with no previous involvement to oversee the next steps in this case. If the Council decides not to do so, it should provide reasons for its decision.

105. To improve services for others, we recommend the Council should:

• remind officers of the limited circumstances in which families have a right of mediation or appeal and the timescales for each process;

• remind officers of the need to involve children and their parents in discussions about alternative provision when they cannot attend due to health reasons, and the circumstances in which parents can be asked to seek further medical evidence;

• remind officers investigating complaints of our guide ‘Effective Complaint Handling for local authorities’ which gives advice to councils on defining and investigating complaints and communicating decisions; and

• review how its SEND service engages with the statutory duty to cooperate with our investigations and to ensure a full response is provided to our enquiries in a timely way.

106. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

Decision

107. We have completed our investigation with a finding of fault for the reasons set out in this report. Mr and Mrs X and Y have been caused an injustice by the actions of the Council and we have recommended it take action to remedy that injustice.

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