Summary: Miss B complained that the Council, in respect of her daughter C, failed to provide special educational support in accordance with her EHC plan, failed to carry out Annual Reviews, failed to provide alternative education when she was unable to attend school and failed to communicate properly with Miss B. We have found fault with the Council, which caused significant injustice to Miss B and C. The Council has agreed to apologise, pay £500 to Miss B, £4,000 to C and improve its service for the future.

The complaint

1. Miss B complained that Kent County Council (the Council), in connection with her daughter, C’s special educational needs, failed to :
• ensure the provision specified in her C’s Education, Health and Care (EHC) plan was put in place;
• carry out regular Annual Reviews including a transition review;
• seek parental input or provide an explanation for the named school in the EHC plan issued in February 2021;
• provide alternative education when she was unable to attend school between March 2020 and November 2021; and
• communicate properly with Miss B or provide an adequate response to her complaint.
2. These failures adversely affected C’s educational progress, confidence and social skills and prevented Miss B being able to get a job as she was looking after her daughter. They also caused the family distress, frustration and time and trouble.

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What I have investigated

3. The Ombudsman cannot investigate all of Miss B’s complaint because parts of it are about the content of C’s EHC plan, specifically sections B, F and I. The content of an EHCP is a matter which can be appealed to the Tribunal and where a person has appealed to the tribunal we cannot investigate during the period of the appeal.
4. So, I have investigated the periods from:
• June 2019 (when Miss B first raised concerns about C’s EHC plan provision) until her right of appeal to the Tribunal arose in September 2019 (when the Council decided not to amend the EHC plan);
• June 2020 (when the first appeal was decided) until her right to appeal to the Tribunal arose in February 2021 (when the Council issued the amended EHC plan naming School Z); and
• the end of September 2021 (when the second appeal was decided) onwards.

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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 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.
7. 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)
8. 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

9. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
10. 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

Special education needs

11. A child with special educational needs may have an 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 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. 
12. 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 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.
14. 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.
15. The statutory guidance on special educational needs highlights the importance of annual reviews ‘to actively monitor children and young people’s progress towards their outcomes and longer term aspirations’ and to ‘review the special educational provision made for the child…to ensure it is being effective in ensuring access to teaching nad learning and good progress’

Appeal rights

16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
17. 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) [2014] EWCA Civ 1407).

Alternative education

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). We refer to this as section 19 or alternative education provision.
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. 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.
21. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states “LA’s 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”.
22. We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for Local Authorities, including they:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
23. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

24. Miss B’s daughter C has special educational needs. She started at School Z in January 2019 following a decision by the SEND tribunal.
25. In June 2019 an Annual Review of C’s EHC plan took place. Miss B said School Z was not making provision for C in accordance with her EHC plan. The Council said it had spoken to the school and resources were being put in place. Miss B said she wanted C to stay at School Z.
26. In August 2019 Miss B again said that School Z was not putting in support in accordance with the EHC plan. On 3 September 2019 the Council decided not to amend the EHC Plan. It also contacted School Z and asked it to ensure the specified provision for C was put in place.
27. In October 2019 Miss B appealed against sections B and F of the EHC plan.
28. The Council contacted School Z again in November 2019 about the lack of provision. School Z said it was providing support to a level that C would accept.
29. In February 2020 Miss B said C was not happy at School Z due to the lack of provision and requested that she move classes. In March 2020 C stopped attending school just before the COVID-19 lockdown.
30. In June 2020 the Tribunal issued its decision and ordered some amendments to the content of the EHC plan. The Council issued an amended final EHCP in June 2020 and corrected an error in August 2020. Miss B said that C’s EHC plan had not been reviewed that year and it should have been a transition review to discuss her move to secondary school.
31. In September 2020 C would not return to School Z. Miss B informed the Council that C had not been in school for nine days. The Council suggested a placement review. Miss B requested a change of school due to the difficulties. In October 2020 Miss B expressed a preference for School Y.
32. The Council consulted with a number of schools including Schools Y and Z. School Z said it could meet C’s needs, but School Y said it could not offer a place because C would not fit in with the current cohort. In December 2020 Miss B told the Council that C had not been in school since March 2020.
33. In February 2021 the Council issued an amended EHC plan naming School Z. Miss B made a complaint and sent the Council a letter from C’s GP confirming she could not attend School Z due to severe anxiety. Miss B also appealed to the Tribunal against sections B, F and I.
34. The Council responded to the complaint at stage one of its complaints procedure. It apologised for not arranging an Annual Review in 2020. It said School Z could meet C’s needs and it was making sure an Annual Review was held now.
35. The Tribunal issued its decision in September 2021 and ordered the Council to amend the EHC plan naming School Y. The Council issued the amended EHC plan at the end of September 2021. Miss B escalated her complaint to stage two of the Council’s procedure.
36. C started at School Y on a part-time timetable in November 2021, increasing to full-time in January 2022. The Council responded to the stage two complaint saying that C had now settled in well at School Y an annual review was being arranged for February 2022 in addition to an Educational Psychology report.
37. Miss B complained to us. She said C had not received any education or special educational provision between March 2020 and January 2022. This had significantly affected her educational progress and social interactions. Miss B was also significantly impacted by having C at home for such a long period of time with little support.
38. In response to my enquiries, the Council said:
• it could not explain why the annual reviews did not take place.
• C’s next annual review should have been held in February 2022 but had been rescheduled to April and now July.
• School Z was responsible for the provision in C’s EHC plan, and it was unable to provide evidence to show how the provision was made.
• C had a place at School Z from March 2020 until November 2021, but Miss B did not send her to school. The Council did not make any alternative educational provision because it did not receive any medical evidence to explain why C could not attend School Z and it expected the school in the first instance to make alternative provision.
• It accepted it delayed extensively in responding to Miss B’s complaints and offered to apologise for this.

Analysis

failed to ensure the provision specified in her C’s EHC plan was put in place

39. The Council has a statutory duty to ensure that the provision in an EHC plan is delivered. The Council was aware in June 2019 that Miss B had concerns whether School Z was delivering the provision in C’s EHC plan. The Council asked School Z about this on several occasions over the next six months, but it did not ask for evidence to support the School’s response that resources were being put in place or that C was not able to accept all the provision. Neither did it check back with Miss B or discuss her concerns further. This is fault. There is no evidence of what School Z provided and so there is no way of measuring if it was in accordance with the EHC plan.

Failed to carry out regular Annual Reviews including a transition review

40. The Council has a statutory duty to ensure EHC plans are reviewed on an annual basis. It did not do so in respect of C’s EHC plan in 2020 or 2021. This meant the Council had no idea whether the provision was in place and if so whether it was meeting C’s needs. It also meant that none of the relevant professionals or School Z were asked to provide up-to-date reports on C’s progress. This caused Miss B uncertainty and frustration that C’s needs were not being met.
41. I also note that from the end of January 2020 C was unhappy at school and from March 2020 stopped attending entirely. An annual review in 2020 could have explored these problems and suggested amendments to the EHC plan or addressed deficiencies in the provision before the situation deteriorated. It is inexplicable why the Council suggested a placement review but did not carry out an annual or emergency review in September 2020
42. The injustice to C and Miss B is exacerbated by the fact that one of the annual reviews should have been a transition review to discuss C’s important move to secondary school.
43. I am also concerned that even after two missed annual reviews, the review for 2022 has been postponed on two occasions and is due to be held this month.

failed to seek parental input or provide an explanation for the named school in the EHCP issued in February 2021

44. The Council asked Miss B to provide her preferred of alternative school and it showed her School Y’s initial refusal reasons. I have not found fault here.

failed to provide alternative education when she was unable to attend school between March 2020 and November 2021

45. The Council had a statutory duty to provide a suitable education to C. It knew in September 2020 that she had not attended school since March 2020 and that she had not returned at the start of the new term. It took no action to find out the reasons for C’s absence and did not ask for any medical evidence. Neither did it contact School Z to find out whether it was providing any education to C.
46. Even when Miss B provided a GP’s letter in March 2021 stating that C could not attend School Z due to severe anxiety it took no action to provide any alternative education.
47. It was not School Z’s responsibility to provide education in these circumstances: after 15 days of absence it was the Council’s duty to provide suitable alternative education, regardless of whether C was still on the roll of School Z. Even taking into account the lockdown period, the Council asked no questions about the reason why C could not attend school in September 2020 and made no attempt to obtain medical evidence from Miss B or a third party.
48. Concentrating on the periods I am investigating, C was without education from June 2020 to February 2021 and again from the end of September 2021 until November 2021 when she returned to education part-time. She did not return to full-time education until January 2022.

failed to communicate properly with Miss B or provide an adequate response to her complaint.

49. The Council has accepted its communication with Miss B was poor and it delayed in responding to her complaints, excessively so at stage two. I agree this was fault, exacerbated by the poor quality of the responses which failed to recognise the extent of the fault or provide a resolution.

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Agreed action

50. In recognition of the injustice to Miss B and C, I recommended the Council within one month of the date of the final decision:
• apologises to Miss B for the fault identified in this case and pays her £500; and
• pays C £4,000 (eight months of missed education @£500 a month) for her educational benefit. The money should be paid into an account in C’s name but managed by Miss B.
51. In respect of service improvements, I note we have made recommendations in terms of carrying out annual reviews on time in several other cases over the previous 12 months. I further note that the Council is in the process of fully reviewing the Annual Review process and has implemented some improvements already. Training for staff is arranged for August 2022. I look forward to these improvements taking effect very soon.
52. In respect of providing alternative education, we have asked the Council on three occasions in the past 12 months to remind staff of the Council’s statutory duty to do so. In order to ensure these reminders will lead to an improvement, I recommended the Council, within three months of the date of the final decision:
• undertakes a detailed review of the Council’s policy and procedure for responding to situations where a child is out of school and not receiving education, identifies the reasons why the Council repeatedly says the responsibility for education in these circumstances is down to the school and suggests improvements which can be made to improve staff understanding and implementation of this key duty.
53. The Council has agreed to my recommendations.

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Final decision

54. I consider this is a proportionate way of putting right the injustice caused to Miss B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman