Summary: Ms X complained the Council failed to put in place education, health and care provision for Y, as set out in his plan. She also complained the Council failed to provide suitable education for Y was he was not attending school. This meant Y missed out on educational provision. We found fault with the Council. The Council agreed actions to remedy the injustice to Y.

The complaint

1. Ms X complained the Council failed to put in place education, health and care provision for her nephew, Y.
2. Ms X said the Council:

• Failed to put in place education when Y was out of school from 2019 to September 2021.
• Failed to put in place the provision set out in Y’s education, health and care plan.
• Failed to review the education, health and care plan.

3. Ms X said Y missed out on education and provision that negatively affected his development and progress. It also placed significant stress on the family because Y did not attend school for over two years.

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The Ombudsman’s role and powers

4. 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)
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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
8. 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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How I considered this complaint

9. I spoke to Ms X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Education, health and care plans (ECHP)

11. The special education needs and disability code of practice 2015 (The Code) provides statutory guidance on the duties Councils have in relation to part three of the Children and Families Act 2014. It relates to children and young people with special education needs (SEN) and disabled children and young people.
12. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

16. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19)
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
23. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – 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;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they can do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

24. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
25. Y lives with his mother, Ms Z. Y’s Aunty, Ms X advocates for and supports Y and Ms Z.
26. Y has special educational needs. He first had an EHCP in August 2019. He was on role at School A but stopped attending in March 2019. The Council decided Y needed a specialist educational placement to meet his needs.
27. School A provided Y with some one-to-one tutoring when he was not attending school. This was in person but moved online because of COVID-19.
28. In December 2020 the school held Y’s annual EHCP review. The Council did not attend. The School referred Y to the Council’s inclusion team because he was not attending school.
29. The inclusion team contacted Ms Z in January and February 2021 to gather information. There was a meeting arranged in early March but Ms Z cancelled. A member of the team visited Y in March to gather his views and speak to Ms Z.
30. In April 2021 the inclusion team held a team around the school (TAS) meeting. The meeting notes recorded several actions and a review date of 1 June 2021.
31. In May 2021 Ms X called the SEN team. She asked to speak to someone about Y’s placement because he was out of education.
32. In June 2021 Ms X complained to the Council. The Council replied but Ms X was not satisfied with the response and asked the Council to review its response at stage two of its complaint process.
33. The Council gave its stage two response. It told Ms X it had been unable to allocate Y an appropriate school place because there was none available at schools that could meet his needs. It had found a place at a suitable special school from September 2021. It apologised for the delays.
34. Ms X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

35. I have set out my findings under the complaint headings.

Failed to put in place education when Y was out of school from 2019 to September 2021

36. I intend to find fault with the Council. This caused Y a significant injustice.
37. The Council says it first became aware that Y’s attendance was an issue in April 2019. In December 2020 the EHCP review recorded Y had not attended school since March 2019. It failed to do anything until the inclusion team contacted the family in January 2021 and held a TAS meeting in April 2021.
38. The TAS meeting recorded several actions and a review date of 1 June 2021. There was no record of the review meeting or update on whether the actions were completed. The managers analysis section of the meeting form was left blank. In response to my enquiries the Council said it had carried out some of the actions.
39. It also said Ms Z’s actions caused some of the issues with Y not being able to access tutoring. This may be the case but the Council should have kept the situation under review and taken appropriate action if it felt Ms Z’s actions or inaction was an issue.
40. The Council was aware Y was not attending school. It was also aware the one-to-one tuition was not suitable and was not meeting his needs. The EHCP review minutes said Y was “becoming increasingly disengaged” with the tutor and had not adapted to remote learning. By April 2021 the TAS meeting minutes said:

• Y was not engaging in any education.
• The tutor was no longer working.
• Y had an EHCP and SEN needs but was not attending education.
• School were worried Y had been out of education for a long period of time.

41. The case was allowed to drift with no meaningful action and no evidence of what action the Council took to ensure Y had suitable education while he was not attending school.
42. It was disappointing to read in the information that Y was not “able to access tuition successfully”. The Council also told me Y had a place available at school throughout lockdown but did not access it. Y was already not attending school before COVID-19. The wording places the responsibility onto Y and that is unfair.
43. The Council failed to properly consider the suitability of Y’s alternative provision while he was not attending school and it failed to keep it under review. This caused Y a significant injustice. He missed out on a long period of education.

Failed to put in place the provision set out in Y’s education, health and care plan

44. I found fault with the Council. This caused Y a significant injustice.
45. When the Council issued Y’s EHCP in August 2019 it had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act).
46. The Council said school A was responsible for the EHCP provision and it provided the funding for this. But the duty remained with the Council. It failed to monitor and review Y’s case effectively.
47. There was also fault with the EHCP review process. The Council does not have to attend the review, but it failed to act on the information it was sent following the meeting.
48. The Council said there was a delay securing a suitable specialist education place for Y because of availability. It had a duty to ensure Y had the provision in his EHCP while he was waiting for a suitable place. It failed to do this and that was fault.
49. Y suffered a significant injustice because he did not have the provision set out in his EHCP.

Remedy

50. We welcomed the Council’s offer to pay Y £200 per month for the period he did not receive the provision set out in his EHCP. The agreed amount is higher. Y did not receive the EHCP provision or suitable alternative provision when he was not attending school.
51. We also welcomed the Council’s offer of £300 in recognition of Ms X’s time and trouble. This is a suitable remedy.
52. The Council said it has already made significant changes and there is greater oversight of case recording.

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Agreed action

53. Within one month of my final decision the Council agrees to:

• Pay Y £400 per month in recognition of the lost education and lack of EHC provision from September 2019 to September 2021. The Council should deduct the school holidays when it calculates the total amount. This financial remedy should be used to benefit Y’s education and development.
• Pay Ms X £300 in recognition of the time and trouble she experienced.
• The Council should consider an early annual EHC review to ensure it is satisfied the current EHCP is an accurate reflection of Y’s needs and the provision is in place. If it decides not to it should be able to fully explain its decision.

54. Within three months of my final decision the Council agrees to:

• Review its practice for SEN officer attendance at annual reviews. If an SEN officer is unable to attend the review meeting it should be able to evidence how it will ensure it does not repeat the faults in this case.
• Provide the Ombudsman with evidence of the improvements the Council has made to its case recording system. Explain how this will reduce the likelihood of a repetition of the faults in this case.
• Review how the Council’s monitors EHC provision is in place when the Council is funding the provision through the education setting.
• Review how the Council puts EHC provision in place for children not attending school.

55. The Council should provide the Ombudsman with evidence it has completed the agreed actions.

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Final decision

56. I found fault causing injustice. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman