The Ombudsman's final decision:
Summary: Mrs X complains the Council is failing to secure the provision in her son’s Education, Health and Care plan. We found the Council at fault for its continued failure to provide Mrs X’s son with the specialist educational provision which is appropriate for his needs. The Council’s failings have caused Mrs X distress and unnecessary time and trouble. The Council has agreed to our recommendations to remedy the injustice.
- The complainant, Mrs X, complains the Council failed to ensure provision as specified in her son’s Education, Health and Care Plan (EHC plan) was put in place. She also complains the Council failed to act on her request to identify an alternative placement. Mrs X says the Council’s failures have resulted in her son, Y, missing out on provision and the family have been caused uncertainty and distress.
The Ombudsman’s role and powers
- 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)
- 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)
- 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 decision statement.
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- 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.
How I considered this complaint
- I considered Mrs X’s complaint and the information she provided.
- I considered the information I received from the Council in response to my enquiries.
- Mrs X and the Council were given the opportunity to comment on draft of this decision. I considered Mrs X’s and the Council’s comments I received before making this final decision.
What I found
What should have happened
Children with special educational needs
- 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.
- Councils are responsible for making sure that arrangements specified in the EHC plan are put in place (Children and Families Act 2014, section 42). 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.
- Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan.
- The Coronavirus Act 2020 temporarily amended the absolute duty to make the special educational provision in an EHC plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.
Council’s duty to provide alternative education
- The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states “each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”
- The provision should generally be full-time unless it is not in the child’s best interests because of their physical or mental health.
- The guidance also says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
- The courts have ruled that what is ‘suitable education’ is a matter for the Council to decide. Whether an alternative placement is ‘suitable’ is not based on the parent or child’s view but upon objective consideration of whether the education is reasonably possible or reasonably practicable for the child to access.
- In R (R) v Kent County Council  EWHC 2135 (Admin) the Court stated that, “..the question is not whether the parents or [the child] have reasonable objections to attending the school, the focus of the court’s attention is not upon the parental objections or the child’s objections, but upon the objective consideration of whether the education offered is reasonably possible or reasonably practicable to be accessed by the child in question…”.
- Councils should ensure an annual review of the child’s EHC plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational provision and educational placement is still appropriate.
- The annual review is not complete until the council has decided to either: maintain the plan; cease the plan; or amend the plan.
- Within four weeks of a review meeting, a council must notify the child’s parents of its decision to maintain, amend or discontinue the EHC plan. (Special Educational Needs and Disability Regulations 2014, Section 20 (10)).
- When a council decides to amend the EHC plan, the final Plan should be sent as soon as practicable and within eight weeks of the date when the council sent the parents the EHC plan and proposed amendments (Statutory guidance: Special educational needs and disability code of practice: 0 to 25 year (January 2015, as amended), paragraphs 9.196 and 9.197) (the SEND Code of Practice).
- The specific timescales set out in the SEND Code of Practice for completing annual reviews were temporarily removed during COVID-19. They were replaced with the requirement for councils to complete such reviews ‘as soon as reasonably practicable’. This was applicable from 1 May to 25 September 2020.
Education otherwise than at school (EOTAS)
- If school or college is not appropriate for the child or young person with an EHC plan (for either all or part of their education), councils can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school or college. This is often known as ‘education otherwise than at school’ (EOTAS). The Council is responsible for securing and funding this provision. EOTAS will be named in the EHCP in Part F (s61 of the Children & Families Act). There is a right of appeal to the SEND Tribunal about any decision to name (or not name) EOTAS in the EHC plan.
- I have set out a summary of key events. It Is not meant to show everything that happened.
- Mrs X’s son, Y, has a diagnosis of autism and has severe learning disabilities. Y has an EHC plan maintained by the Council.
- Y’s EHC plan was finalised in June 2020 and it supported Y to attend an independent special school, School A. However, Y stopped attending soon after School A reopened after the summer break in September 2020. Mrs X says she did not send Y to school as she felt it was not meeting his needs.
- A Social Worker from the Council was aware of the difficulties Y was having since 19 September 2020. The Special Educational Needs and Disabilities Officer (SENDO) was notified of the difficulties in October 2020 and began working with Y, Mrs X and School A to put together a plan of reintegration.
- On 20 October 2020 a reintegration plan and part time timetable was agreed. The plan was for Y to attend School A on Mondays after the October half term. In the interim, the school was to provide work to Y in core subjects.
- The term resumed on 3 November 2020. Mrs X contacted the Council on 7 November 2020 to say she would not be sending Y to school as she did not feel the arrangements that had been agreed would work.
- Mrs X requested the Council to consider EOTAS and for a named school to deliver this. But the Council felt that as School A had stated it could meet Y’s identified needs, it should continue to develop a bespoke educational package to reintegrate Y.
- On 6 January 2021, Mrs X agreed for a bespoke package with reintegration to be developed.
- In March 2021, School A advised the Council there was a delay in developing the bespoke package due to staff absence.
- The Council held an annual review of Y’s EHC plan on 27 April 2021. It decided School A would commission the National Teaching and Advisory Service (NT&AS) to provide tuition and eventual reintegration. Mrs X expressed a preference for School B which is in a different local authority area. The Council’s SENDO agreed to consult with the relevant Council regarding a place for Y at School B.
- On 12 May 2021, NT&AS began providing Y with 2 hours of home tuition twice a week.
- In June 2021, School B said it was unable to offer a home tuition package because it did not have the staffing capacity. It was also unable to offer a school place as it was at capacity.
- In July 2021, the home tuition Y received was increased to three sessions a week.
- In September 2021, home tuition was increased again to five sessions a week. On 9 September 2021, the Council advised Mrs X that a package of EOTAS had been agreed for Y.
- In December 2021, with the support of an independent charity, Mrs X was able to secure some provision for Y at School C.
- On 3 March 2022, Y began attending School C one afternoon a week.
- The Council updated Y’s EHC Plan in April 2022 and named EOTAS in section I of the plan.
- Although Y is in receipt of home tuition and attends a school one afternoon a week, he is still not in receipt of all the provision as set out in Section F of his EHC plan.
- Councils are not required to provide exactly what parents request, but where a council has been unable to find a suitable school placement within a reasonable timeframe, they have a duty to provide appropriate alternative education. We can also consider whether the Council has failed to make purposeful efforts to identify a school place.
- Y remained on roll at School A but irrespective of Mrs X’s reasons for not sending Y to school, the Council should have either enforced attendance or provided suitable alternative provision. The Council did neither. This is fault. The Council says School A maintained that it was able to meet Y’s needs but at the same time it was aware School A was failing to send work home for Y and he was therefore not in receipt of any provision.
- On the evidence provided, I am satisfied the Council knew Y was not receiving a suitable education and SEN provision from 13 October 2020. It did not start consulting with other schools until after 19 May 2021. Between January 2021 and January 2022, there appears to be very little involvement from the Council in identifying and providing suitable provision to Y. For this reason, I am not satisfied the Council had any specific strategy as to how to move the case forward. The information the Council has provided me with shows Y’s case was allowed to drift when it should have been monitored and regularly reviewed. This is fault.
- While I appreciate the Council secured some home tuition, it did not provide Y with all the provision he should have received as per his EHC plan. The Council remains responsible to ensure Y receives suitable education and appropriate SEN provision. From the information the Council has provided me with, I cannot say the Council has done all it reasonably could to source the appropriate provision and school place. Y is now attending School C one afternoon a week and receives a package of home tuition four days a week but he is still not receiving suitable education in accordance with his EHC plan. This is also fault.
- The Council advised Mrs X in September 2021 that EOTAS had been agreed and Y’s EHC plan would be updated accordingly. However, Y’s updated EHC plan was not received by Mrs X until 25 April 2022. There is no statutory timeframe for how long a Council can take to do the amendments, the Code simply says this should happen ‘without delay’. From the information I have received from the Council, I cannot see any good reason why the amended plan could not have been issued to Mrs X sooner.
- Mrs X says she asked the Council to consult with School C but it failed to do so. I have seen no evidence the Council approached School C. It is not possible for me to say with a sufficient degree of certainty that Y would have secured a school placement any sooner, during the period I have investigated, had the faults I have identified not occurred. For this reason, I cannot recommend the Council should be held accountable for its inability to secure a school place sooner. However, I am satisfied that Mrs X suffered distress and frustration as a result of periods of apparent inactivity and the Council could have done more to secure provision sooner.
- To remedy the injustice caused, the Council has agreed, that within four weeks of this final decision, it will:
- Apologise to Mrs X and Y for the faults identified in this final decision;
- Pay Mrs X £400 for the time and trouble in bringing this complaint and for the distress and frustration caused by the faults identified;
- Pay Mrs X £4600 to be used for the benefit of Y’s education (£2500 for the period of January 2021 to May 2021 where Y received no provision and £2100 for the period of June 2021 to February 2022 where Y received some provision).
- Develop a strategy in the form of an action plan for the outstanding provision in Y’s EHC plan. The Council will provide the Ombudsman and Mrs X evidence of this plan.
- Review how it monitors EHC provision is in place and evidence how it will ensure it does not repeat the faults identified in this case.
- Remind staff through appropriate training of the Council’s non-delegable duty to secure the SEN provision set out in Section F of a child’s EHC plan.
The Council is at fault for failing to provide Y with the provision in his EHC plan. The Council has agreed to the Ombudsman’s recommendations to remedy the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.
Investigator's decision on behalf of the Ombudsman