Oxfordshire County Council (21 010 769)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 25 Sep 2022

The Ombudsman's final decision:

Summary: There was fault by the Council in failing to provide suitable alternative education prior to October 2021 when Y was unable to attend his school. There was also fault and delay in the annual review process and updating an Education, Health and Care Plan. This caused Y to miss out on education, delayed a right of appeal and caused unnecessary distress and expense. The Council will apologise, make a financial payment and make service improvements.

The complaint

  1. Mrs X complains that her son, whom I shall refer to as Y, has been out of school since April 2021. Mrs X says the Council has delayed in consulting alternative placements or naming a new school on Y’s Education, Health and Care (EHC) plan.
  2. Mrs X says she raised concerns about whether the school her son stopped attending in April 2021 could meet needs before it was named on the EHC plan.
  3. Mrs X says she had at least six special educational needs (SEN) officers in eighteen months.
  4. Mrs X says her son missed out on education and there has been a significant financial impact on her and her husband while Y has been without a school place, including legal costs and lost earnings.

Back to top

What I have investigated

  1. I have investigated the Council’s handling of Y’s SEN since Spring 2021, when his new school placement started to fail. I have not investigated earlier events for the reasons set out below.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. 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)
  6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
  7. We can investigate matters which are separable from an appeal, but not matters which are inextricably linked to the substance of an appeal.
  8. 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.
  9. 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)

Back to top

How I considered this complaint

  1. I have considered relevant law and statutory guidance including:
    • The Children and Families Act 2014.
    • The Special Education and Disability (SEND) Regulations 2014.
    • The SEND code of practice: 0 to 25 years.
  2. I have considered guidance issued by the Ombudsman:
    • Guidance on Remedies
    • Focus Reports on EHC plans and SEND.
  3. 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.
  4. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Alternative provision

  1. 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 that is not in the child’s interests (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. 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)
  2. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
  3. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  

Education, health and care plans

  1. 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 tribunal can do this.
  2. The Council is responsible for making sure that arrangements specified in the EHC plan are 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.
  3. The EHC plan is set out in sections which include:
    • Section B: The child or young person’s special educational needs. 
    • Section F: The special educational provision needed by the child or the young person.  
    • Section I: The name and/or type of school. 
  4. 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)
  5. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance:
    • EHC plans must be reviewed at least every twelve months. The annual review process requires information to be gathered from the family, professionals and the education setting. A meeting must be held and a report produced for the Council.
    • Councils must write to schools at the start of term in which a review meeting is due, Councils can delegate the organising of the meeting to schools
    • 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)
    • Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194
    • The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
    • The Council must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
  6. 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 right of appeal is only engaged when the final amended plan is issued.
  7. The Tribunal has powers under the Children and Families Act to make certain decisions in relation to appeals. The Tribunal can dismiss the appeal or order the Council to carry out an assessment, make or maintain an EHC plan or maintain a plan with amendments.
  8. For ‘extended appeals’ the Tribunal is also able to make non-binding recommendations concerning:
    • Health and social care needs to be specified in EHC plans
    • Health and social care provision related to the child’s SEN
    • Social care provision that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.
  9. Where there is a right of appeal to the Tribunal about a decision, which has been used, the Court has decided the decision, and the consequences of it, are matters which are outside the jurisdiction of the Ombudsman. (R (on the application of ER) v the Commissioner for Local Administration, 2014) This means where a Council issues an Education, Health and Care Plan and fails to name a specific school, and also fails to meet its duty to provide alternative education for the child, the Ombudsman cannot provide a remedy if the parents have appealed. The decision (failing to name a school) and the consequence (failing to provide education) are ‘inextricably linked’.
  10. Further, the lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)

What happened

  1. The Council first issued an EHC plan for Y in February 2020.This said he should attend his mainstream primary school until July 2020 and then move to a specialist school in September 2020.
  2. The EHC plan was amended after mediation with a second final plan issued in May 2020.
  3. Mrs X has complained about delays in the EHC process.
  4. The Plan said a review meeting should take place by December 2020 so all the steps in the review process would be completed within twelve months of the anniversary of the first Plan.
  5. An annual review meeting was held in December 2020 at the new school. The Council says the school did not provide the Report after this meeting but did produce an annotated copy with proposed changes to the plan in mid-January 2021. It says the proposed changes did not represent a request for significant change to the plan and no concerns about the ability of the new school to meet need were raised at that time.
  6. The Council should have issued a decision within four weeks of the meeting in December 2020 whether it intended to amend the plan. It did not make this decision until late March 2021, a delay of two months. It decided to amend and issued a draft plan and amendment notice. The Council should have issued a final plan within eight weeks of the draft.
  7. In April 2021 a further review meeting was held. The School said it could not meet Y’s need for therapeutic intervention and there were safeguarding issues. The School confirmed additional funding would not overcome these problems. The School recommended a more suitable school be found for Y to move to in September 2021.
  8. Y stopped attending school. The School told the Council its relationship with Mrs X had broken down.
  9. Early Help services (social care) became involved in April 2021.
  10. A request for alternative education went to the Council’s panel in May 2021. The panel advised Y should return to his current school and Council officers should challenge the school about its position. I do not know if this happened, but Y did not return to school.
  11. There is email correspondence about sourcing alternative provision in Summer 2021, but there were difficulties finding a location for tuition. As Y’s parents worked, tuition outside the home was required. An organisation was commissioned at the end of June to support Y to provide therapeutic support three to four mornings a week, but academic tuition was not put in place due to the lack of a venue and the cost of venues. As a result, although the Council approved funding for 18 hours per week tuition (6 half days of 3 hours), Y only received 6 hours per week.
  12. At a meeting in August the Council says support to return to the previous school was discussed, however the notes do not show this. There are notes that the organisation providing therapeutic support would aid Y’s transition into a new school when a placement was found. The Educational Psychologist supported a change of school and the previous school confirmed it could not meet need. A further emergency review was arranged for September.
  13. Mrs X complained about poor communication by SEN officers and that Y was without education. The Council replied in August 2021 that it had tried to engage with Y’s school so it could make alternative provision for Y. When this was not successful the Council says it commissioned alternative provision for Y. The Council considered officers had kept in touch with Mrs X including via the meeting in August.
  14. The Council says Mrs X requested amendments to the draft EHC plan issued in March 2021 and it issued a second draft in early August 2021.
  15. The emergency review meeting was held in early September to discuss Y’s provision moving forwards. Y was not attending school but remained on roll of his previous school. He was receiving 1:1 therapeutic input which was due to continue for at least six weeks. Reports recommended 1:1 education not in a conventional classroom, but Mrs X considered Y should be in a school setting.
  16. The case went to a Council panel for complex cases in September. Following this a third draft amended plan issued. Mrs X again asked for changes and a final amended plan was issued in late October 2021 with a letter advising Mrs X she had a right of appeal. The Plan named a type of school (maintained special) in Section I, but the Council had not identified a place at a specific school.
  17. The final plan said social care had considered Y’s case and determined his needs could be met via universal and targeted support services via the local offer, so there was no need for ongoing social care involvement.
  18. Mrs X appealed the October 2021 final EHC plan to the SEND Tribunal. She also asked the Tribunal to consider social care provision.
  19. The Council put in place alternative education of therapeutic and educational support from October 2021 of four sessions per week. The tutor’s report shows Y was doing three thirty minute or two forty-five minute sessions per morning on academics, three times a week.
  20. Mrs X says she asked for consultations of other schools to be made in April 2021, but the Council did not send any out until September 2021 and did not chase these up until February 2022.
  21. Documents provided to me by the Council show it consulted:
    • two schools in June 2021
    • two schools in September 2021
    • eight schools in October / November 2021
    • nine schools in February / March 2022 (some of these were schools which were full when previously consulted)
  22. One school said it could meet need in November 2021, but this was a residential school. A second school, also residential, offered a place in February 2022. This went to the Council’s panel in March 2022, but the panel did not consider residential was required on educational grounds. It deferred a final decision until a social care assessment was completed and more schools were consulted.
  23. In October 2021 social care reviewed Y’s case as he was out of education, but no child in need (CIN) assessment was started until April 2022. This found that Y being out of school was creating pressures on the whole family. The outcome of the assessment was that a school placement needed to be found and Y was referred to the Children with Disabilities (CWD) team to explore respite provision for Y’s parents. However, the referral was declined as CWD did not consider Y met their criteria.
  24. In May 2022 Mrs X told me Y was now getting nine hours tuition per week, but the therapeutic support was no longer required as Y was ready to return to a school once one was found. Mrs X told me the tuition was mainly in english and maths, with no science, music or sport. Mrs X says she has paid privately for music and sport provision. Mrs X says three of the nine hours tuition is therapeutic support.
  25. In July 2022 the SEND Tribunal ordered that Y attend Mrs X’s preferred school from September 2022.

Analysis

EHC process and consulting schools

  1. The Council knew a review meeting was due by Christmas 2020 so while the School was late returning the paperwork, the Council would have been informed of the meeting date and should have chased the paperwork when it did not come in on time. The Council should have issued a decision within four weeks of the meeting and took three months. This is fault and delayed the issue of the draft amended plan.
  2. The Council should have issued the final plan within eight weeks of the draft, it took an additional four to five months to do so, adding further delay.
  3. I find there was at least a six month delay by the Council between the annual review meeting and issuing the final amended EHC plan. This is fault and delayed Mrs X’s right of appeal. While the situation changed in Spring 2021, with the current school stating it could no longer meet need, this did not alter the timescale for the final plan. The Council could have issued the final plan to give a right of appeal even if further changes were required when a new school was found. This would have allowed Mrs X a right of appeal earlier.
  4. In our Focus Report on SEND issued in 2014 we recommended councils consult concurrently not sequentially with several schools when considering suitable placements to avoid unnecessary delay in reaching a decision. The Council consulted two schools in June 2021, two in September and eight in the Autumn. There is then a gap when nothing seems to have happened between October and February 2022. I find there was delay in consulting schools and the Council could have consulted several schools earlier than it did.
  5. The decision as to whether a residential school is suitable and whether Y has a need for social care support are matters which Mrs X appealed to the Tribunal so are not matters the Ombudsman can now consider. Ms X has used an alternative remedy to the Tribunal and cannot use a second remedy to the Ombudsman about the same matters.
  6. Mrs X has informed me the Tribunal has recently awarded all the provision she asked for including her choice of school. I acknowledge Mrs X and Y will always have uncertainty as to whether, but for the delays in providing a right of appeal and consulting schools, this outcome may have been achieved sooner. This uncertainty is itself an injustice.

Alternative provision

  1. I can only consider the period of alternative provision from Spring 2021 until October 2021. The Courts have said the Ombudsman cannot consider any decision which is subject to an appeal, or the consequence of a decision which is the substance of an appeal. In October 2021 the Council issued a final EHC plan that did not name a specific school. The law permits the Council to name a type of school or no school in an EHC plan. Such a decision carries a right of appeal which Mrs X exercised. The consequence of not naming a school is that Y missed out on education. The Courts have said we cannot investigate the education the Council provided during this period, even though the appeal did not provide a financial remedy. The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)
  2. The alternative provision between Spring 2021 and October 2021 did not include academic tuition and was not full-time. This is fault. I have seen no medical evidence that suggests Y could not manage provision equivalent to fulltime. The Council intended to provide eighteen hours per week tuition but failed to do so. Provision appears to have been restricted based on the cost of hiring venues. This is fault. Mrs X paid privately for sport and music provision to supplement the education the Council was providing.

Injustice

  1. I have identified there was a period of six months delay by the Council which delayed the appeal and its successful outcome. Following the annual review meeting in December 2020, the Council should have issued the final amended EHC plan giving a right of appeal by Spring 2021 but did not do so until October 2021.
  2. This delay meant Y could not start his new school until September 2022, when his appeal could have been heard at least six months earlier.
  3. Y missed out on suitable full-time education from April to October 2021. During this period Y did not receive any academic tuition, although he received some therapeutic provision in Summer 2021. I cannot consider a remedy for the period after October 2021 when the appeal was proceeding.

Back to top

Agreed action

  1. Within four weeks of my final decision:
    • The Council will apologise to Mrs X and Y for the fault and injustice identified in this investigation.
    • The Council will reimburse Mrs X for private tuition costs incurred between April and October 2021 (when the EHC plan was issued).
    • The Council will pay Y £2400 to acknowledge that he did not receive suitable fulltime education including academic tuition between Spring and October 2021.
    • The Council will pay Y £500 for the uncertainty and distress of whether, but for the fault, he could have started at his new placement sooner.
    • The Council will pay Mrs X £500 for the uncertainty, distress and time and trouble caused.
  2. Within eight weeks of my final decision, the Council will review its processes to ensure:
    • It consults schools concurrently and at the earliest opportunity
    • It holds annual reviews in a timely way and processes any amendments without delay
    • Where children are out of school it provides a right of appeal at the earliest opportunity
    • Alternative education provided is fulltime, suitable and on par with what a child would receive within school (unless there are medical reasons why that would not be in the child’s best interests) and put in place without delay.

Back to top

Final decision

  1. I have completed my investigation. There was fault by the Council in failing to provide suitable alternative education prior to October 2021 when Y was unable to attend his school. There was also fault and delay in the annual review process. This caused Y to miss out on education, delayed a right of appeal and caused unnecessary distress and expense.

Back to top

Parts of the complaint that I did not investigate

  1. I have not investigated Mrs X’s complaints about the education, health and care needs assessment carried out before February 2020. This is too long ago; we would have expected Mrs X to raise her concerns at the time. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. For reasons given above, I have not investigated the adequacy of the alternative education provided during the period October 2021 and July 2022 when Mrs X was waiting for her SEND appeal to be heard. I have also not investigated social care provision (or lack of provision) as Mrs X has used an alternative legal remedy to the Tribunal.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings