Summary: There was fault and delay in amending an Education, Health and Care plan to name a new school and in providing a right of appeal. There was also a failure to provide alternative education when, without the Council’s intervention, a child would not receive suitable fulltime education. Recommendations for an apology and financial remedy are made.

The complaint

1. Ms X complains that her son was without suitable fulltime education for a period of eighteen months. Ms X complains the Council:
• left her son on roll of a mainstream primary school that had stated it could not meet her son’s needs
• delayed in naming a suitable special school despite agreeing such a school was necessary in November 2020
• did not take action until she threatened legal action in January 2021
• delayed responding to a special school that said it could meet needs
• did not attend the annual review in 2021
• delayed providing her with a right of appeal.
2. Ms X said the delay caused a lot of distress to the whole family; her son missed out on education as he was unable to attend his primary school and no tuition was put in place.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If we are satisfied with an organisation’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)

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How I considered this complaint

7. I have considered information provided by Ms X and the Council including:
• Complaint documents
• Panel decisions
• Consultations with schools
• Education, Health and Care (EHC) plans and annual review documents.
8. I have also spoken to Ms X by telephone.
9. I have considered relevant law and guidance including:
• Children and Families Act 2014, associated Regulations and Code of Practice
• Education Act 1996
• Coronavirus Act 2020
10. I have considered guidance issued by the Ombudsman including:
• Guidance on Remedies
• Focus Report: Special Educational Needs: preparing for the future, 2014
• Focus Report: Learning from complaints during COVID-19, 2022
11. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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.

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What I found

Relevant law and guidance

Special educational needs

13. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and the arrangements which 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 Special Educational Needs and Disability (SEND) tribunal can do this.
14. Councils must review EHC plans at least every 12 months. Where a child or young person attends school, councils can require the school to carry out the review meeting on its behalf. (Children and Families Act 2014, section 44; The Special Educational Needs and Disability Regulations 2014, regulation 20)
15. Within two weeks of the review meeting a council must decide whether to amend the plan, keep the plan the same or cease the plan (SEND Regulation 20(10 and 11). It must provide a decision in writing and explain appeal rights.
16. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176) It must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the draft EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. The Council is responsible for making sure arrangements specified in the EHC plan are put in place. (Children and Families Act 2014, section 42)
18. Between 1 May and 31 July 2020, the Government made changes to councils’ duties to arrange the provision in EHC plans. Between those dates, councils instead had to make ‘reasonable endeavours’ to arrange the provision specified in EHC plans. The law was not changed during the second lockdown of January to March 2021, but the Ombudsman acknowledges councils will have faced similar practical difficulties during this period.
19. Guidance on the duty to make 'reasonable endeavours' at the time said that councils and schools should weigh up the risks to children with EHC plans of continuing to attend school against missing some of the provision set out in their EHC plan.
20. Where councils could not arrange the provision set out in an EHC plan, the guidance said it should consider:
• what provision the EHC plan describes is needed;
• the availability of those who usually deliver the provision;
• what could be done to deliver any provision differently; and
• different types of provision, locations or providers.

Attendance and alternative education

21. Parents are responsible for ensuring a child of compulsory school age either attends school regularly or receives suitable home education.
22. Councils have legal powers to enforce attendance.
23. The Education Act 1996 (Section 19) states that councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, would not otherwise receive suitable education. The provision must be suitable for the child's age, ability and aptitude, including any special needs.
24. A suitable education means a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests. There should be medical evidence to support this.
25. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

School Closures during COVID-19

26. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and ‘vulnerable’ children. These included children with EHC plans.
27. From 5 January to 8 March 2021 schools were again closed to most pupils.

Factual background

28. Ms X’s son attended a mainstream primary school. He has special educational needs (SEN) and an EHC plan.
29. In 2019 his hours of support were increased to 32 per week due to his levels of anxiety.
30. In March 2020 all schools closed due to COVID-19 and the School provided remote learning.
31. Ms X’s son’s annual review was held in May 2020 by phone. Prior to lockdown he had been performing well against his targets. In May 2020 it was noted his mental health difficulties were increasing and an appointment with mental health services was awaited. No concerns about his education are recorded at that review. However, a later version of his EHC plan stated Ms X’s son ‘struggled to access learning online with the schoolteacher and could not keep up with the speed of teaching and pressure of a strict schedule of learning, school also tried engaging via telephone, this was also unsuccessful’.
32. In August 2020 the Children and Adolescent Mental Health Services (CAMHS) advised Ms X’s son’s mental health had deteriorated and he had anxiety about returning to school. CAMHS advised specialist schooling should be considered as Ms X’s son was refusing to attend.
33. In September 2020 the School put in place a part-time timetable. At that time the School felt they could meet needs with a gradual transition.
34. In October the School said Ms X’s son had not managed more than a few hours in school. An emergency review meeting was held which led to a recommendation the Council consider a move to a specialist school. Council officers attended this meeting. Attendance was 1.7% at that point and Ms X’s son had not managed even one hour in the classroom since March 2020.
35. CAMHS provided a letter after the meeting stating that Ms X’s son that despite attempts to transition back to school, Ms X’s son had been unable to manage this. CAMHS advised Ms X’s son ‘would be better able to cope in a specialist provision’.
36. In November the Council’s panel agreed to consult specialist schools but decided Ms X’s son should remain on roll at the primary school and a robust plan put in place to try and re-engage him in education there. The Council did not therefore at this stage concede a specialist placement was required. The panel wanted more information about what was in place at the current school. I have seen no evidence a more robust plan was put in place.
37. The School chased the Council for an update on consultations with other schools in December but got no reply.
38. Between January and March 2021, schools again closed due to COVID-19. The Council told the School that an in-year transfer was unlikely to be found during ‘lockdown’ as specialist schools liked to assess new pupils in person. The SEN caseworker said the Council would investigate alternative provision.
39. Between January and March 2021, the School offered a daily 1:1 session over the phone and virtually but Ms X’s son was said to find it ‘hard to engage’.
40. In February 2021 the School received a medical letter that Ms X’s son would be shielding (from COVID-19) until 31 March 2021, presumably to support non-attendance.
41. The School reopened in early March 2021 and offered daily sessions in school but says Ms X’s son ‘resisted’ all offers. Some lessons were completed on a virtual platform. Ms X informed the School the Council had consulted three schools but done nothing about tuition.
42. School X was consulted and replied in mid-March. It had places available but needed to do an assessment and asked the Council if it wished to proceed. The Council did reply.
43. In late April the Council told the School it had consulted two schools, but School X would only be consulted with agreement from senior officers. School X was an independent special school.
44. In late April the Council, Ms X and School held a meeting. It was agreed the EHC plan would be updated. The School submitted referral paperwork for alternative provision. The Council said it would consult a further five schools.
45. In May, as amendments were required to the EHC plan, the School suggested the next meeting be held as an annual review. Minutes of this meeting show that it was a co-production meeting to update the EHC plan but no one from the Council attended.
46. The Council consulted School X again in late May after Ms X contacted the school directly and found out the Council had not proceeded with the consultation. School X confirmed in late June it could offer a place for September, but the Council continued to consult more schools.
47. The Council’s panel considered the case in mid-July. The decision is unclear, it states officers should do ‘due diligence’ and notes costs for School X were not provided to the panel. It appears the absence of this information meant the decision was deferred.
48. The Council issued a final EHC plan in August naming School X.
49. Ms X says when her son started his new school in September transport was not in place. This was because she could not apply until the school had been named and there was then a delay while the transport application was considered. Ms X says this meant she had to transport her son herself for two months.

My findings

Scope of investigation

50. Ms X’s complaint is about loss of education over an eighteen-month period, from March 2020 to September 2021 and other injustice caused. This includes two lockdowns due to COVID-19 when education was generally affected.

Period 1: March to July 2020

Fault

51. Where pupils with EHC plans were not engaging with home learning, the Government expected them to be prioritised for a place in school. Councils had to make reasonable endeavours to arrange the provision specified in EHC plans.
52. On the limited evidence I have seen for this period, Ms X’s son stopped engaging with the remote learning provided. The Council should have reviewed the risk assessment and considered what other provision it could put in place. There is no evidence it did so; this is fault.

Injustice

53. It is uncertain what education options would have been available instead of online learning. A later doctors note stated Ms X’s son was shielding which suggests his parents may not have wanted him to physically attend school in any event. It is unlikely face to face services other than school attendance would have been available until June 2020. After June, services began to reopen, it may have been possible to put some alternative education in place. The uncertainty whether Ms X’s son might have been able to access provision is itself an injustice.

Period 2: September 2020 to October 2020

Fault:

54. Ms X’s son returned to school but struggled to attend and when he was in school he was unable to access normal classes. The School put in place a reintegration programme. While part-time timetables are not usually permitted, they are allowed to facilitate a gradual reintegration into school. I am not critical of the education provided during this period. It was reasonable to see if Ms X’s son would manage to reintegrate with support.
55. The Council correctly held an emergency review meeting but did not issue a decision with appeal rights after this review. This was fault. If the Council’s decision was to amend the Plan, it should have started this process immediately. The Council did not start to update the EHC plan until May, and then delegated this role to the School. This was fault. While councils do not have to attend review meetings, it was the role of the Council, not the school, to amend the plan and any co-production meeting should have been held between a council officer and Ms X.

Injustice:

56. Ms X was denied a right of appeal after the October 2020 review and there was delay in updating the plan to name a new school.

Period 3: November 2020 to August 2021

Fault:

57. The Council now had medical advice recommending a specialist placement and advice from the School that Ms X’s son had not attended since March 2020 and was not engaging with the support in place. The Council’s panel decided in early November to consult special schools but wanted a robust plan to re-engage Ms X’s son at his current school. There is no evidence of what was put in place to support the school and any efforts to get Ms X’s son to return failed. While it was reasonable to persevere with reintegration for a short period, the Council should have considered whether it needed to supplement and / or replace the school education with alternative education under s.19 Education Act. It also needed to consider how to secure special educational provision in the EHC plan when Ms X’s son was not attending school. There is no evidence it did so. This was fault.
58. While the School enquired about alternative education in Autumn 2020 it was not asked to complete paperwork for a referral until April 2021 and then this did not result in any tuition.
59. There was a delay in consulting schools. There was a three month delay between November 2020 and Spring 2021 when no action was taken. The Ombudsman expects councils to consult schools promptly and concurrently to avoid delay.
60. The Council could have proceeded with the assessment at School X much earlier. It consulted in June 2021 only after Ms X intervened. While councils will usually wish to exhaust local maintained schools before considering independent specialist provision, the process took too long. There was no reason not to consult School X at the same time as other schools. If consults had started in Autumn 2020 the responses would have been available before schools closed in January 2021.
61. There was a further delay in July 2021 when the case went to panel without the correct paperwork about costs.

Injustice

62. Ms X’s son lost out on education during this period. The Ombudsman’s Guidance on Remedies recommends a payment of £200 to £600 per month for lost education depending on how much education was delivered, whether the pupil had special educational needs and if they were at a key stage in their education.
63. I consider the following recommended payments are appropriate for loss of education:
• £200 for uncertainty whether more education could have been provided between March and July 2020
• £500 for December 2020 when little education was in place
• £300 per month for January to February 2021 when COVID-19 would have restricted education in any event (total £600)
• £500 for March to July 2021 when no education was provided (total £2500).

These sums take account of the education provided and the impact of COVID-19.

Period 4: September to November 2021

Fault:

64. Ms X says a knock-on effect of the delay in naming a school for September 2021 was that she could not apply for transport until just before the new term. Ms X says this meant that although her son was eligible for transport none was provided until November. Ms X had to spend time transporting her son to and from school herself.
65. I agree if school consults had been done in a timely way, then on the balance of probabilities Ms X would have secured transport in time for the new term.

Injustice

66. Ms X incurred inconvenience and expense transporting her son to school between 7 September and 3 November 2021.

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Agreed action

67. Within four weeks of my final decision, the Council will:
• Apologise to Ms X and her son for the fault and injustice caused.
• Pay Ms X’s son £3,800 for the impact of the fault on his education. This money should be held in a savings account in the child’s name but with parental oversight and used for his educational or social benefit.
• Pay Ms X:
1. £250 for her time and the inconvenience transporting her son to school until the transport was in place
2. A mileage allowance for journeys incurred between 7 September and 3 November 2021
3. £150 for her time and trouble in relation to the complaint process.

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Final decision

68. I have completed my investigation. There was fault and delay in amending the EHC plan to name a new school and in providing a right of appeal. There was also a failure to provide alternative education when, without the Council’s intervention, a child would not receive suitable fulltime education. I am satisfied the agreed actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman