Summary: There was delay by the Council in the way it reviewed an Education, Health and Care plan and a failure to provide alternative education when Y’s college placement failed. This caused loss of education, inconvenience, and distress. The Council will apologise, pay a financial remedy, and carry out service improvements to prevent a recurrence of the fault.

The complaint

1. Ms X complains on her own behalf and on behalf of her daughter, whom I shall refer to as Y. Y has special educational needs (SEN). Ms X complains the Council:
• Failed to complete the annual review of Y’s Education, Health and Care (EHC) Plan in November 2020
• Failed to meet the statutory timescale for naming a post-16 placement of 31 March 2021
• Failed to secure provision in Y’s EHC plan at the school / college
• Failed to obtain an educational psychology report to advise about post-16 placement
• Failed to put in place alternative education, or provide the special educational provision in the EHC plan, when Y was unable to attend school:
1. After March 2021 when Y was signed off school by her general practitioner
2. After September 2021 when Y’s post-16 placement failed.
2. Ms X says because of the above fault:
• Y has missed out on education and failed to gain qualifications
• Y’s transition to post-16 education was rushed and the placement failed
• Ms X has been unable to work as Y has not been in fulltime education
• The family has been caused distress.
3. Ms X has also raised historical issues about the Council’s handling of Y’s annual review and education in 2019.

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What I have investigated

4. I have investigated the matters set out in paragraphs one and two above covering the period from November 2020 to date. I have not investigated events in 2019 (paragraph 3), these are too long ago for the Ombudsman to consider; we would have expected Ms X to have raised these concerns at the time.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. 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)
9. 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.
10. We cannot investigate complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
11. 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

12. I have considered information provided by Ms X and the Council including Y’s EHC plans, annual review, and complaint documents.
13. I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014 and associated Regulations and Code of Practice
• Coronavirus Act 2020, Amendment Regulations and guidance
• Statutory guidance: Alternative Education; Ensuring a good education for children who cannot attend school because of health needs.
• Statutory guidance: Participation of young people in education, employment or training.
• The Ombudsman’s Focus Report: Out of School…out of mind. How Councils can do more to give children out of school a good education.
14. I have considered the Council’s policy on education for children with health needs.
15. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
16. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Education, health and care plans

17. A child with special educational needs (SEN) 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.
18. Section 42 of the Children and Families Act 2014 says where a local authority maintains an EHC plan for a child or young person the local authority must secure the specified special educational provision for the child or young person. 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)
19. The Ombudsman expects councils to have systems in place to check that provision in an EHC plan has been secured.
20. Under section 61 of the Children and Families Act 2014, councils may arrange for special educational provision to be made otherwise than in a school if it is satisfied it would be inappropriate for the provision to be made in a school. Before doing so it must consult the parent or young person.
21. Councils must also 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) After the meeting a report must be produced by the school. On receipt of the report the Council must make one of three decisions:
• To amend the plan
• To keep the plan the same
• To cease the plan.
22. All three decisions provide a right of appeal to the SEND Tribunal, however when the decision is to amend, the appeal right does not start until the final amended plan is issued.

Phase transfers

23. An EHC plan 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 for and, where necessary, commissioning of support and provision at the new institution.
24. For young people moving from secondary school to a post-16 institution or apprenticeship, the review meeting and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by 31 March in the calendar year of the transfer. 

Alternative education

25. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
26. 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))
27. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
28. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should ‘consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child’.
29. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

School Attendance

30. Parents are responsible for ensuring their children get a full-time education that meets their needs, either by ensuring they attend school or home educating them. This applies from the school term after their 5th birthday until the last Friday in June in the school year they turn 16.
31. Schools and Councils have legal powers to enforce attendance.

Chronology of relevant events

32. Y has had an EHC plan since Summer 2018. This was updated in May 2019, following an emergency review meeting in January 2019, which noted Y was ‘currently refusing to attend’ her current school. The amended EHC plan named a new school for Y.
33. The next annual review was not held until November 2020.
34. The notes of the November 2020 review meeting show:
• Y had moved schools in March 2019, but her attendance had been erratic and was affecting her progress.
• Social care and the careers advisory service needed to become involved to consider a post-16 placement as Y was at risk of becoming NEET (not in education or training).
• The EHC plan needed to be updated. Y needed 1:1 adult support and support separate from school from a psychologist to help her plan her future.
35. Y was due to move to post-16 education in September 2021.
36. The Council has admitted the annual review paperwork was ‘not processed’ so it did not issue a decision with appeal rights after the meeting in November 2020.
37. Y was signed off as unfit to attend education in March 2021 by her General Practitioner (GP). The medical advice did not state that Y could not receive any education, for example tuition at home.
38. A further review meeting was held in May 2021. Y had applied for and been offered a place at college to start in September 2021. The college needed evidence of Y’s ability level and Y’s school arranged for staff to visit her at home in June 2021 to do some practice papers in English and maths.
39. Outcomes of the May 2021 meeting were:
• The school would fund an educational psychology assessment
• Occupational therapy assessment would be arranged
• Ms X would like the EHC plan amended
• The school would collect evidence required for the college to offer a place.
40. Ms X was noted to say she would ‘ultimately like tutoring arranged for Y, though not at the moment due to Y’s medical concerns…do assessments first, tutoring can wait’.
41. The School asked the Council how tutoring could be arranged as it did not have the capacity to do regular outreach. Ms X agreed the notes of the meeting save that Y would need Education Otherwise than at School (EOTAS) if for any reason she did not get a place at the college for September.
42. Ms X made a formal complaint about delay in June 2021. The Council acknowledged it had failed to:
• Issue an amended final EHC plan by the statutory deadline of 31 March 2021 for post-16 transfers
• Process the November 2020 review.

It apologised for these failings.

43. The Council told me it first became aware Y was not attending school when it received the annual review paperwork from the school in June 2021. Ms X however told me she emailed the Council in mid-May.
44. The Council’s complaint response denied it had failed to provide Y with suitable education. It said it had contacted the School which said Y felt unable to attend and the School did not offer home tutors. The Council said the School’s view was that it could meet the requirements of Y’s EHC plan and therefore the Council could not uphold it had failed to provide Y with education ‘because Y has been medically signed off from school until the end of the academic year’.
45. The Council told me the reason in the GP note for Y’s non-attendance was not a condition it considers prevents a pupil attending school. It says Y’s EHC plan recognised these needs and made provision for them in school. The Council says it received no medical advice to justify Y’s absence from school.
46. The Council told me EOTAS was not considered appropriate as Y had a place at college for September and the Council was not in agreement there were medical reasons preventing Y’s attendance at her current school.
47. The Council issued a draft amended EHC plan in June 2021 and a final amended EHC plan naming the college in July 2021. The Council says there was no delay in completing the 2021 annual review and issuing a final plan.
48. Y started college in September 2021, but her attendance was low. She did not complete assignments, so the college withdrew the place. Y became NEET.
49. In November 2021 Ms X asked for her previous complaint to go to stage two and raised new issues that:
• The Council had failed to obtain an educational psychology assessment when Y had started her new school in 2019 or subsequently, and
• Delay in completing the post-16 review had led to Y not getting the right support at college and being taken off her course.
50. The Council provided a complaint response in November 2021 upholding the stage one decision. It said the new issues were not ones for the Council, as they were actions for the school / college. It said there was no obligation on schools to get educational psychology advice and the Council was not responsible for the college taking Y off her course.
51. The Council told me it was informed by Ms X in November 2021 that Y had stopped attending her course. Ms X told me she notified the Council in mid-October. The Council says it contacted the college and queried why a review meeting had not been called. A meeting was then scheduled. The Council told me it had worked with the college to ensure in future emergency EHC reviews were held before places were withdrawn.
52. The review meeting was held in January 2022. It was recommended the EHC plan continue. Ms X and Y felt the college had not implemented the support in the EHC plan. Y refused to return to the college. The notes of the meeting indicate Ms X and Y were exploring an alternative college, which the Council consulted in February. The college offered a place in March 2022 which was available from September 2022. The Council put four hours per week tuition in place in April 2022 until the end of the academic year.
53. The Council amended the final EHC plan to name the new college in March 2022. Ms X has not appealed the final plan.

Analysis

November 2020 annual review

54. The Council failed to issue a decision (to amend, not amend or cease) the EHC plan after the review meeting. This was fault and denied the family a right of appeal if they disagreed with the provision in the plan.
55. The outcome of the review meeting were recommendations the EHC plan be amended to increase the amount of 1:1 adult support Y received in school, which in turn would support her attendance and engagement in learning, as well as support from social care, a psychologist, and a careers adviser. As the review paperwork was not processed the Council did not consider the request for additional support. This was fault.
56. The Council is not obliged to accept recommendations for changes to an EHC plan, but if it decides not to amend a plan in line with recommendations, it must provide a written decision to this effect with a right of appeal to the SEND Tribunal. It failed to do so; this was fault.
57. It is speculative whether the Council would have agreed to amend the plan and provide extra support in school in 2020, or whether this support would have altered the outcome for Y post-16. Extra provision was added to the EHC plan when it was amended in mid-2021. Ms X lost the right to challenge any decision not to increase support in 2020, which is an injustice.

Failed to name a post-16 placement by 31 March 2021

58. The Council has admitted the deadline to name a post-16 placement was missed and this was fault. It should have ensured review meetings were held and processed in good time to name a new placement by 31 March 2021.
59. The evidence indicates Y had a conditional college place by May 2021 and this was confirmed in June. I am not persuaded there is evidence the two-month delay left inadequate time for transition planning. There is also no evidence the EHC provision was not in place when Y started college, although I acknowledge this was not investigated because Y had already left college before the Council was informed of the situation.
60. While there was fault in missing the post-16 deadline, I am not persuaded there is evidence to support this caused a significant injustice.

Failure to carry out educational psychology assessment

61. Ms X requested an educational psychology (EP) assessment at the May 2021 review meeting. The School agreed to obtain and fund this. It was not fault the Council did not arrange an EP assessment, the School had agreed to do this. The Council was not present at this meeting and did not participate in this discussion.
62. The Council considered it had enough information to amend the EHC plan in June 2021 without EP evidence. Ms X had a right of appeal against the final EHC plan issued in July 2021 if she considered Y’s needs were not adequately described or provided for. We would have expected Ms X to use her right of appeal if she was unhappy with the content of the Plan.

Failed to secure provision in Y’s EHC plan (when Y was attending school / college)

63. There is not enough evidence to show the School or college did not put in place the special educational provision in the EHC plan. Ms X did not raise this complaint until after the college had withdrawn the place in Autumn 2021, by which time it was too late for the Council to have acted.

Failed to secure alternative education and special educational provision in an EHC plan when Y was unable to attend school / college

64. The evidence indicates Y attended her school sporadically until Spring 2021 when she was signed off by her GP and stopped attending.
65. The Council told me that Y had a suitable placement, and the GP letter did not provide medical grounds for non-attendance. The Courts have found that it is a judgment for the council to make whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]) The Council was therefore not obliged to accept the GP evidence. However, there is no evidence to show the Council reached this view at the time. It did not write to Ms X explaining its view on the GP letter or take any action to secure Y’s attendance. It seems likely this is a view the Council has reached in response to the complaint and my investigation and it did not consider providing tuition at the time.
66. While it is fault to have failed to consider the matter of attendance or the provision of alternative education at the time, I am not persuaded this has caused significant injustice. The records show Ms X’s view in mid-2021 was that she did not wish Y to receive alternative education until further assessments had been completed. By the time the Council received the paperwork and became aware of Y’s absence it was also only a few weeks until the end of the school year.
67. The Council says it became aware that Y had lost her college place in November 2021, but Ms X says she told the Council in mid-October. By this time Y above statutory school age but was still entitled to the special educational provision in her EHC plan. The law requires young people to participate in education, employment, or training until their 18th birthday. Councils have legal duties to make available support to young people with EHC plans to encourage or assist them to participate in education or training.
68. The Council did not put alternative education via home tuition in place until April 2022. This is fault. The Council put provision in place only once we had started our investigation.
69. Ms X told me that the Council has provided four hours per week tuition, but Y is unable to do any homework or independent learning. Y is entitled to all the provision in her EHC Plan as far as is possible while she is unable to attend a setting.

Injustice

70. I have found fault in failing to process the November 2020 annual review. This meant the EHC plan was not updated between 2019 and July 2021. Additional provision recommended in November 2020 was not added to the EHC plan until July 2021. The family was denied a right of appeal; however, I note that when an appeal right was provided, it was not used.
71. Ms X attributes Y’s lack of qualifications and dropping out of college to delays by the Council in updating the EHC plan and a lack of provision. This is speculative. Y has had several failed placements and long periods of low attendance. I cannot say that, but for the Council’s fault, Y would have had a different outcome educationally. I do acknowledge Ms X and Y have uncertainty as to whether if extra provision had been available prior to Y’s transition to post-16 education whether this may have been more successful.
72. I have found there was delay in providing suitable alternative education, including provision for Y’s special educational needs, between November 2021 and April 2022. Y received no education during this period.
73. Ms X says Y’s absence from education has affected her work. Our Guidance on Remedies explains that when we find fault, we can recommend a remedy, but only when there is a causal link between the fault and the injustice. There is not enough evidence to say Y’s absence from school up to July 2021 was due to fault by the Council. I cannot therefore ask the Council to provide a remedy to Ms X for this period. Y stopped attending college in November 2021, again there is no evidence this was due to fault by the Council. The Council provided home tuition but delayed in doing so. Ms X must be at home to support home tuition. This has had an impact on Ms X’s work, but it is speculative to say that, but for the fault by the Council, Y would have been in a setting. Ms X’s work may have been affected in any event. The Council consulted another college, but Y cannot start her new course until September 2022.

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Agreed action

74. Within four weeks of my final decision, the Council will apologise to Ms X and Y for the fault I have identified.
75. Within four weeks of my final decision, the Council will:
• Pay Y £2500 to acknowledge loss of education between November 2021 and April 2022 and the uncertainty of whether, had the November 2020 annual review been processed promptly, additional provision would have been provided earlier.
• Pay Ms X £500 to acknowledge the impact of the fault on her and her time and trouble pursuing the complaint.
• Review the home tuition package being provided to see if it can be increased from four hours per week and to check whether all special educational provision in the EHC plan that can be put in place outside a setting is in place.
• Consider holding a meeting with Ms X (and Y if appropriate), the new college and other relevant professionals to ensure there is a robust plan in place to support Y’s transition from home tuition to her new college course in September.
76. Within eight weeks of my final decision, the Council will review its processes to ensure:
• It has a system to diary phase transfers for pupils with EHC plans to ensure reviews are held in time to meet statutory deadlines to name the next placement.
• It has a system to ensure all annual reviews are completed by a written decision, or final EHC plan with appeal rights provided.
• When it becomes aware a pupil is not attending school, it considers whether alternative education is required. If it decides it is not, because the pupil is well enough to attend, it should provide a written decision giving reasons why it does not accept medical evidence and setting out its expectations of parents about attendance. When it decides alternative education is required, it should put this in place promptly. The Council should ensure it keeps records of its decisions.

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Final decision

77. I have completed my investigation. There was delay by the Council in the way it reviewed an EHC plan and a failure to provide alternative education when Y’s college placement failed. This caused loss of education, inconvenience, and distress. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman