The Ombudsman's final decision:
Summary: Mr and Mrs F complain the Council has failed to provide suitable alternative education to their son (Child X) who could not attend his primary school due to his special educational needs. Further, they say the Council has not reviewed Child X’s Education and Health Care Plan (EHCP) so that he could effectively transition to secondary school. We found the Council failed to provide alternative education for Child X while he was unable to attend primary school. The Council also failed to amend Child X’s EHCP in good time so that he could attend secondary school. The Council’s proposed transition arrangements for Child X were not appropriate for him and it has not provided suitable alternative education to him for this period also. These failings have caused Child X and both Mr and Mrs F serious loss, harm and distress. The Council has agreed to my recommendations to remedy this.
- The complainants, who I refer to as Mr and Mrs F, are making a complaint for their son (Child X) who has special educational needs (SEN). Chid X has an Education and Health Care Plan (EHCP) which identifies that he should attend a mainstream school placement. However, Child X has been out of education since 2018 on account of his SEN and Mr and Mrs F say the Council has failed to provide appropriate support to ensure he receives a suitable education. In summary, Mr and Mrs F allege the following:
a) The Council has failed to provide a suitable education for Child X, including to provide him suitable alternative education while he has been out of school.
b) The Council has failed to provide Child X with a transition to a secondary school with no school and as a result, he is not currently on any school roll.
c) The Council has failed to carry out an annual review of Child X’s EHCP, despite no school place being made available for him.
- The Council has failed to take into account the views of the parents and the school providers suggested.
- Mr and Mrs F say that Child X’s educational welfare and development has been significantly impacted by the Council’s failings. They also explain the issues have resulted in distress, hardship and uncertainty for them as parents. As a desired outcome, Mr and Mrs F want the Council to provide Child X a specialist school which could better meet his needs. They also want to be provided compensation on account of Child X’s loss of education, as well as distress and anxiety.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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).
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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.
- The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407).
How I considered this complaint
- I have read Mr and Mrs F’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation, policy and statutory guidance. I invited both Mr and Mrs F and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made.
Background and legislative framework
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.
Education and health care plan (EHCP)
- An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
- Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
- When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
- Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
- The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.
- The Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration restricts what we can investigate. It found that if someone has made an appeal to the SEND Tribunal, we cannot investigate any matter which is connected to the matters under appeal. This means that if a person disagrees with an EHCP annual review outcome, we cannot seek a remedy for a loss of education or any other consequences after the date the appeal was made.
EHCP annual review
- The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
- The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review”.
- In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.
- The Code states at Paragraph 9.179 than an EHCP: “must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning and, where necessary, commissioning of support and provision at the new institution.”
Chronology of events
- Since 2014, Child X attended a mainstream school. However, due to his SEN, he was moved outside of the classroom in April 2018. Mr and Mrs F say Child X was moved into the school hallway where he received little to no education.
- In November 2019, Child X’s school contacted the Council to request that he be assessed for an EHCP. However, the Council declined to offer him an assessment noting support could be provided through alternative means.
- In January 2020, Child X stopped attending school altogether on account of his SEN and was therefore, out of education. Mr and Mrs F expressed they felt Child X should attend a specialist school which could better meet his SEN needs.
- In February 2020, Child X’s school requested Child X be assessed for an EHCP as a matter of urgency. In May 2020, the Council commenced the assessment process to determine whether an EHCP should be maintained for Child X.
- Since September 2020, the Council has maintained a final EHCP for Child X. This identified that he should attend the mainstream school he was not attending.
- In March 2021, the Council funded 15 hours of tuition for Child X. However, Mr and Mrs F contend approximately only an hour of tuition was provided per week because it was not suitable for Child X who needs a specialist school to attend.
- In early September 2021, the Council sought to transition Child X to a mainstream school setting which had a bespoke unit to support children with SEN. Child X attended four times, following which the secondary school informed Mr and Mrs F it felt the placement was not suitable for him. Child X therefore stopped attending.
- In late September 2021, the Council requested home tuition for Child X while it sought to identify a suitable secondary school placement for him to attend.
- In February 2022, the Council held a meeting to review Child X’s EHCP. The annual review process has not yet concluded.
- As stated above, the provisions of the Local Government Act 1974 outline what I can and cannot investigate. On review of the issues, I consider there are some jurisdictional matters which limit by ability to investigate parts of this complaint.
- By law, I have no jurisdiction to investigate what happens in schools. I recognise that Mr and Mrs F complain Child X received little to no education when he was moved from the classroom to the hallway. However, this took place within the school environment. The restriction I outline at Paragraph 4 applies and I cannot investigate this part of the complaint. This is a matter which should have been properly raised through the school’s formal complaints process. Moreover, the Department for Education can also consider complaints in some circumstances.
- In addition, I recognise that Mr and Mrs F want Child X to attend a specialist school which can better meet his SEN. They disagree with the named placement within Child X’s EHCP, specifically that he attend a mainstream school setting. It is Mr and Mrs F’s position that the named placement is unsuitable which means Child X cannot attend and therefore receive a suitable education. The question of whether Child X has suffered a loss of education is therefore inextricably linked to the named school placement within his EHCP.
- I cannot by law investigate the consequences of any decision by the Council which could reasonably be appealed to the SEND Tribunal. The naming of an EHCP placement carries such a right of appeal. The Court of Appeal has said we cannot investigate or remedy the consequences of any decision which is inextricably linked to the matter which could reasonably be appealed. As identified earlier, whether Child X suffered a loss of education is materially connected to the EHCP placement. This is because if I were to judge whether Child X should be in receipt of alternative education provision under s19 of the Education Act 1996, I would, in effect, be conceding that the named EHCP placement was unsuitable for his needs. I cannot make that determination because whether the EHCP placement is suitable is a matter for the SEND Tribunal on appeal. Importantly, I have seen no evidence it would have been unreasonable for Mr and Mrs F to have exercised their right of appeal in this regard.
- The Council issued Child X’s final EHCP in September 2020. This is therefore the point Mr and Mrs F could have appealed the decision. I cannot therefore a remedy any alleged loss of education beyond this date. However, for the reasons detailed below, I can investigate any loss of education beyond September 2021 up to the point Child X’s EHCP was formally amended.
EHCP annual review
- In accordance with the Code, an EHCP should be reviewed within 12 months of the date when it was issued. However, the move between schools, especially at the key phase transfers from primary to secondary, is an important moment for any child and especially those with SEN. The Code says that advance planning for these moves is essential. The year 5 review should provide a clear recommendation for the type of provision the child will need at secondary school. The Code states at Paragraph 9.179 than an EHCP:
“must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning and, where necessary, commissioning of support and provision at the new institution.”
- In summary, Child X was due to commence education at secondary school from September 2021. To adhere to the Code therefore, the Council was required review and amend Child X’s EHCP in good time before this date. The Council acknowledge it did not hold an annual review meeting for Child X until February 2022. The Council told me it did not hold a formal annual review process as part of the transition process as it considered this should be postponed until Child X completed transition visits at appropriate placement settings. It considered this would enable Child X to have a smooth and bespoke transition which was paramount given the time he was of out of school.
- I do not accept the Council’s reasoning and by not holding an annual review in good time before Child X was meant to transition to secondary school, it has failed to follow the Code. The EHCP annual review process was fundamental to understanding the type of provision Child X required to enable any successful transition to secondary school. In effect, the Council was seeking to transition Child X without understanding what provision or placement he required. I therefore find fault by the Council for failing to undertake an annual review of Child X’s EHCP in good time and to facilitate his transition arrangements. Bearing in mind the school holidays run between 6 July 2021 and 1 September 2021, I consider the Council should have reviewed Child X’s EHCP at the beginning of May 2021. This would have enabled arrangements to be made for Child X to receive a suitable education at a placement in time for the new academic year.
- I do accept the Council sought to make arrangements for Child X to transition to secondary school. This is evidenced through plans and records of meetings. However, the Council did this without properly holding an annual review of Child X’s EHCP, as it was required to do. This would have informed effective transition arrangements. The Council also denied Mr and Mrs F of their legal right of appeal to the proposed secondary school. This was serious fault by the Council. The secondary school Child X attended on four occasions eventually felt it could not meet Child X’s needs. For these reasons, I find the Council was at fault for failing to transition Child X to secondary school because central to this process is an EHCP review which the Council failed to carry out in good time.
- It should also be noted that the secondary school placement advised the Council prior to any transition arrangements that it did not consider it would be able to meet Child X’s needs. Specifically, the secondary school considered Child X would require greater therapeutic provision to support his high anxiety and that he would likely would not cope in the placement given it was already overcrowded.
- Because Child X should have received an annual review and transitioned to secondary school in September 2021, I can investigate a loss of education from this point. This is because the suitability of his primary school placement ceased to be a relevant provision in the EHCP which was, at this point, out of date.
- The Council held a case review meeting with Mr and Mrs F and professionals in January 2022. It subsequently held an annual review of Child X’s EHCP in mid-February 2022. The Code says the Council must notify parents of its decision on whether the amend the EHCP within four weeks of the review meeting. If the EHCP needs to be amended, the local authority should start the process of amendment without delay. Following comments from child’s parents, the Council must issue the amended EHCP as quickly as possible, and within 8 weeks of the original decision to amend it. At present, the Council has not issued an amended EHCP for Child X and which is delaying Mr and Mrs F’s right to appeal to the SEND Tribunal. As previously identified, this should have been issued prior to Child X’s intended transition to secondary school in September 2021. This is serious fault by the Council.
- Importantly, when the Council issues an amended EHCP for Child X, this carries a right of appeal to the SEND Tribunal. Should Mr and Mrs F disagree with the contents of the amended EHCP, they will not be able to complain to the Ombudsman as the SEND Tribunal has jurisdiction to resolve these issues.
Loss of education
- For the reasons outlined above, I can investigate a loss of education for the following periods:
- January 2020 to September 2020 (the date Child X stopped attending school up to point Mr and Mrs F could have appealed the final EHCP) and;
- September 2021 to present day (the date Child X’s EHCP should have been amended with a transitional placement identified up to the point the Council amended the EHCP).
Consulting preferred schools
- I will not investigate any failure by the Council to name Mr and Mrs F’s preferred school within Child X’s initial EHCP. As set out above, the naming of a school placement within an EHCP carries a right of appeal to the SEND Tribunal which I consider Mr and Mrs F could have reasonably exercised in September 2020. With respect to identifying a secondary school placement, I have seen evidence that the Council has consulted with all of Mr and Mrs F’s preferred schools. I have not found fault by the Council in this respect. The fault in this case is exclusively in respect of the annual review process and a failure to provide suitable alternative education in accordance with s19 of the Education Act 1996.
- The Council has failed to provide suitable alternative education to Child X for a period of 11 months. This has seriously impacted on Child X’s educational development, mental wellbeing and deprived him of building social relationships. Further, the Council has failed to conclude Child X’s EHCP in good time in order to facilitate an effective transition to secondary school. It cannot therefore be said that the little provision Child X is receiving is fit for purpose. These serious failings have also resulted in a considerable pressure being placed on Mr and Mrs F who have suffered serious distress and hardship. I am therefore recommending a number of remedies relevant to Child X and both Mr and Mrs F.
- To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 1 June 2022:
- The Council will provide both Child X and Mr and Mrs F a written apology which acknowledges the serious failings and injustice identified.
- The Council will pay Mr and Mrs F £5,800 to be spent on the educational development of Child X due to a loss of education. This amount has been calculated based on £500 per month in respect of the period from January 2020 to September 2020 and £400 per month in respect of the period from September 2021 to April 2022.
- The Council will continue to pay £400 per month to Mr and Mrs F until such a time it issues an amended EHCP for Child X which carries a right of appeal to the SEND Tribunal.
- The Council will pay Mr and Mrs F £1,000 to acknowledge the serious distress and hardship they have been caused due to a failure to provide a suitable education for Child X, as well as fault during the annual review processes.
- At a senior level, the Council will undertake a detailed review of this case. The review exercise will focus on why Child X was not provided suitable alternative education when he was unable to attend his mainstream primary school. Moreover, the Council will review why an EHCP review was not undertaken to inform what provision Child X needed to make a transition to secondary school viable. The purpose of the review is to adopt measures to inform service improvements for each area of fault identified in this statement. The Council will provide evidence of the review and adopted measures to the Ombudsman.
- The Council will complete the annual review of Child X’s EHCP and issue this without further unreasonable delay. The Council will clearly state Mr and Mrs F’s right of appeal to the SEND Tribunal when it issues the amended EHCP.
- The Council will provide training to all staff involved in EHCP arrangements relating to the Code, specifically when an annual review of an EHCP should be commenced and finalised and issued.
- The complaint is largely uphold the complaint. The Council failed to provide alternative education for Child X while he was unable to attend primary school. It also failed to amend Child X’s EHCP in good time so that he could attend secondary school. The Council’s proposed transition arrangements for Child X were not suitable given it did not conduct a review exercise in good time. Further, the proposed secondary school had informed it did not consider it would be able to meet Child X’s SEN. These failings have caused Child X and both Mr and Mrs F serious loss, harm and distress. The Council has agreed to my recommendations to remedy this.
Investigator's decision on behalf of the Ombudsman