Summary: Mr and Mrs D complained the Council failed to provide their son with the education and specialist provision set out in his Education, Health and Care plan. They also say the Council failed to provide adequate alternative education when their son was no longer able to attend school. We find the Council was at fault for failing to provide full-time education for Mr and Mrs D’s son when he was out of school or record the reasons part-time provision was suitable for him. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr and Mrs D complained the Council failed to provide their son, G, with the education and specialist provision set out in his Education, Health and Care (EHC) plan. They also say the Council failed to provide adequate alternative education when G was no longer able to attend school. As a result, he has missed out on years of education and social opportunities.
2. Mr and Mrs D say the Council’s actions have caused immeasurable distress and upset to the entire family. They also say G’s childhood has largely been ruined due to the Council’s failures.

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What I have investigated

3. I have investigated Mr and Mrs D’s complaint from September 2020 onwards. I have not investigated their complaint before this date for the reasons explained at the end of this statement.
4. I have also not investigated what specialist provision and education the Council provided G with from 11 February 2021 to 6 October 2021 for the reasons explained at the end of this statement.

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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. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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

11. I considered information from Mr and Mrs D. I made written enquiries of the Council and considered information it sent in response.
12. Mr and Mrs D 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

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 what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
14. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.

Alternative provision

15. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
16. 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. Evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Annual reviews

17. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says:

• Councils should arrange for EHC plans to be reviewed at least every 12 months;
• If a child attends a school, a council can ask the school to carry out the review;
• Within two weeks of the review meeting, the organisation arranging the review must prepare and send out a report setting out any amendments to the EHC plan it is recommending;
• Within four weeks of the review meeting, a council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision;
• If the plan needs to be amended, a council should start the process of amendment without delay; and
• A council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.

18. When changes are suggested to the draft EHC plan and agreed by the council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the council sent the proposed amendments to the parents.

What happened

19. This chronology outlines key events in this case and does not detail everything that happened.
20. Mr and Mrs D’s son, G, has special educational needs and an EHC plan.
21. G started experiencing difficulties at school in 2018. He stopped attending altogether in 2019.
22. The Council received evidence which said G would not benefit from returning to school due to his mental health.
23. The Council arranged a home tuition package for G which started in January 2020. He received tuition in English and maths twice a week for 60 to 90 minutes.
24. The Council emailed Mr D in August and said it was proposing G remained on roll at the school. It said it would work to slowly build up his re-integration towards school-based education.
25. G started attending school again on a part-time timetable in September for his final year at primary school. His tutor attended with him.
26. G stopped attending school in November. He started receiving limited tuition again twice a week.
27. The Council spoke to Mr D about the ongoing issues. He said he wanted G to receive home tuition until he found a new placement. He said two hours a week was not enough education for G.
28. The Council spoke to Mr and Mrs D a few days later. It suggested that G could access some online learning. Mr D said they would need a tutor from school to support G with online learning.
29. The Council contacted the school asked if it could provide the tutor for online learning. The school said there was a multi-agency meeting arranged in February 2021 to discuss the issues.
30. The Council wrote to Mr and Mrs D on 21 January 2021 and said it was planning to amend G’s EHC plan and name a secondary school (School Y) setting for September.
31. Mr D contacted the Council a few days later and said G could not return to school as he was too anxious. He asked for G to have more with sessions his tutor.
32. Mr D contacted the Council again and said he did not agree with School Y. He suggested another school (School Z).
33. The Council issued G’s final EHC plan on 11 February. It named School Y as the setting for G to attend from September. It said G would remain at his current school until July. The Council told Mr and Mrs D about their appeal rights to the SEND Tribunal if they remained dissatisfied.
34. Mr and Mrs D emailed the Council on 28 March. They said they were unhappy the Council had not chosen School Z. They also said it had only provided G with two hours a week of education.
35. Mr and Mrs D appealed to the SEND Tribunal in April about the placement listed in G’s EHC plan.
36. Mr and Mrs D contacted the Council again. They said School Y had not agreed to take G, and instead said there were many complex issues it wanted further discussions on before it was confident it could meet his needs.
37. The Council agreed to name School Z. G started attending taster sessions at School Z.
38. The Council responded to Mr and Mrs D complaint on 24 June. It said it provided home tuition for G. It also said it offered online learning for G, but they declined it. It said they could refer their complaint to stage two of its complaints procedure if they remained dissatisfied.
39. Mr and Mrs D emailed the Council and said they had previously asked it to escalate their complaint to stage two in 2020. Therefore, they said they had a right to escalate their complaint to the Ombudsman.
40. The Council responded to Mr and Mrs D’s email and said it had responded to their complaint from March 2021. It said if they remained dissatisfied, they would need to explain why.
41. The SEND Tribunal issued its consent order on 6 October. This said a hearing was no longer necessary as the Council and Mr and Mrs D had reached an agreement on the matters in dispute. It directed the Council to amend G’s EHC plan to name School Z.
42. The Council issued G’s amended EHC plan on 10 November.
43. G stopped attending School Z on 10 December.
44. Mr and Mrs D complained to School Z about its failure to provide G with the specialist provision in his EHC plan. The Council was provided with a copy of the complaint. It contacted School Z on 1 February 2022 to arrange a meeting to discuss the complaint. School Z responded and provided its availability. It is not clear whether the meeting took place.
45. School Z held an annual review of G’s EHC plan on 2 March. Mr D said he was unhappy G did not receive direct occupational therapy (OT) and speech and language therapy (SALT). School Z said there was no requirement in G’s EHC plan for the direct involvement of therapists. It said it had secured regular on-site OT and regular on-site SALT was due to be in place shortly.
46. Mr D said G needed an OT and SALT assessment to inform his EHC plan. The minutes of the meeting suggest School Z was going to arrange this. Mr D also made it clear the placement had broken down.
47. Mr and Mrs D emailed the Council on 18 March and said it was breaking the law as it had failed to provide G with any education for three months.
48. The Council spoke to Mr D at the end of March. It said it could provide an Education Otherwise Than at School (EOTAS) package for G.
49. The Council made a referral for G to receive four hours a week of tuition in English, maths, and science. He started receiving this tuition in May. It had a meeting with Mr D and agreed to commission SALT and OT assessments to inform an amended EHC plan. It also said that it could increase the tuition hours when G was comfortable.
50. G started receiving one hour a week of music tuition in June. He also received a SALT assessment.
51. The Council suggested an OT assessment through a local school. Mr and Mrs D said they needed a specialist occupational therapist because of G’s complex needs.
52. Mr and Mrs D and G have now moved of the Council’s area.

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Analysis

53. The Council was aware of G’s struggles with school. It agreed to work with him to re-integrate him back into school-based education. G attended on a part-time basis from September 2020 onwards. There was no fault with this approach, as the long-term aim was for G to be fully re-integrated back into school.
54. When it became clear G could no longer attend school again because of his anxieties, the Council’s duties under section 19 of the Education Act 1996 applied. It did provide G with education, but it was limited to a maximum of two hours a week. This is nothing like full-time provision. He also did not receive any specialist provision as set out in section F of his EHC plan.
55. Mr and Mrs D asked for more than two hours of tuition a week for G in November 2020. The Council suggested online learning. Mr and Mrs D explained they would need a tutor to help them support G with online learning. Although, the Council explored this with the school, nothing materialised. I have read the report from the tutor, and she does not state G could not have coped with more than two hours of education. Instead, she said any changes to G’s routine had to be carefully managed. The Council should have consulted with medical consultants to determine how much education G could have coped with. The Council’s failure to do so is fault. This leaves Mr and Mrs D with uncertainty about whether G could have received more education.
56. The Council failed to arrange an annual review of G’s EHC plan in June 2021 which is fault. The date of an annual review is not affected by an ongoing appeal to the SEND Tribunal.
57. Although I have identified fault, I do not consider this caused Mr and Mrs D or G a significant injustice. The issue Mr and Mrs D had with the EHC plan (the educational setting named) was being addressed through Tribunal proceedings. Even if the Council had completed an annual review in July 2021, is likely the outcome would have still been the same and the issues would have been addressed through the proceedings.
58. The Ombudsman expects councils to do due diligence when a new or substantially amended EHC plan is issued to check the new provision is in place. There is no evidence that the Council did this when it issued G’s amended EHC plan in November 2021. This is fault. If it had done so, it is likely it would have been aware of the issues G was having with School Z much sooner, and it would have been able to make suitable alternative arrangements. The Council only acted in April 2022.
59. The Council should have decided within four weeks from the annual review on 2 March 2022 whether it would amend G’s EHC plan. The Council wrote to Mr and Mrs D on 3 May 2022 and agreed to amend his EHC plan, but it failed to finalise it within statutory timescales, which is fault. This has frustrated Mr and Mrs D’s appeal rights to the SEND Tribunal and has also caused uncertainty about G’s provision. However, Mr and Mrs D and G have now moved, and so another authority is now responsible for G’s education.
60. The Council was providing G with five hours of tuition a week. It has not provided any evidence to determine how it considered this is an appropriate amount of education for him. I note the Council did say the hours could be increased when G was comfortable, so it is clear it was a starting point and it could be reviewed. However, the Council should ensure it is properly recording its decision making on such matters.
61. The Council’s faults have caused Mr and Mrs D upset, frustration, and uncertainty. They have had to constantly raised these issues with the Council, and it has been distressing that G has not received the education and provision he is entitled to. It should make a payment to them and apologise to reflect this injustice.
62. The Council’s faults have also caused G a significant injustice as he has experienced significant disruption to his education. He has not received the education and specialist provision he is entitled to. The Council should make a payment to reflect this. I recommend a payment of £350 per month from November 2020 to February 2021. This takes into consideration G received limited education during this time. The Council should make a further payment of £500 per month from January to end of April 2022 because G received no education or specialist provision.

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Agreed action

63. To address the injustice caused by fault, by 12 December 2022 the Council has agreed to:

• Apologise to Mr and Mrs D and G.
• Pay Mr and Mrs D £2,675 for the loss of educational and specialist provision for G. We recommend Mr and Mrs D use this payment for G’s educational benefit.
• Pay Mr and Mrs D £400 for their upset, frustration, and uncertainty.

64. Within three months:

• Review its approach to arranging alternative education to ensure that it provides full-time provision or clearly records its reasons for deciding that a part-time timetable will provide a suitable education for the child. The record should include an assessment of how much the child can manage where they are too unwell to access a full-time education.

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Final decision

65. There was fault by the Council, which caused Mr and Mrs D and G an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

66. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mr and Mrs D refer to matters from 2018, but they did not refer their complaint to us until March 2022. I have decided to exercise discretion to investigate Mr and Mrs D’s complaint from September 2020 because of the ongoing issues they experienced. However, I am satisfied they had sufficient opportunities to bring any issues before September 2020 to the Ombudsman much sooner and therefore I will not exercise discretion to investigate them.
67. Mr and Mrs D exercised their right to appeal to the SEND Tribunal about the educational setting listed in G’s EHC plan. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Therefore, the Council’s actions regarding G’s education and specialist provision from 11 February 2021 to 6 October 2021 is outside of the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman