Summary: Mr X complained about the Council’s repeated delays in its Education, Health and Care plan review process and failings to provide educational provision for his son, B. Mr X said the Council failed to communicate with him and B’s mother, Ms Y. We find fault by the Council. This has caused significant stress to Mr X and Ms Y and B did not receive a suitable education. The Council has agreed to our recommendations to address this injustice.

The complaint

1. The complainants, Mr X and Ms Y, complain about repeated delays in the Council’s Education, Health and Care (EHC) plan reviewing process, from June 2019 to December 2021. They said their sons 1:1 provision was not being delivered. Mr X and Ms Y also complain about the lack of communication and support from the Council and its special educational needs and disabilities (SEND) officer. Mr X said because of this, B has become reclusive and has not attended the school where he was on roll since September 2021. Mr X has had to leave his job. This has caused stress and uncertainty to him and Ms Y.

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What I have investigated

2. I have investigated whether there was any fault in the Council’s actions from March 2020 to May 2022. I have not investigated the Council’s actions from June 2019 to February 2020 for the reasons outlined in the final paragraph of this statement.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. 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.
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 spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

What should have happened?

Education, Health and Care plans

13. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
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).
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 Special Educational Needs and Disability (SEND) Code of Practice is the statutory guidance which states:
• councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement.
• within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay.
• the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
17. 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.

Alternative provision

18. 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.
19. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
20. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils 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 including that councils:

• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• Choose (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.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

Absences from school

21. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission to the absence, or the child is being educated off-site. Schools have to regularly inform the council of any pupils who are regularly absent from school, have irregular attendance, or have missed 10 school days or more without the school’s permission.
22. When a child refuses to attend school, or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. Where 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.

Impact of the COVID-19 pandemic

23. During the initial Covid-19 outbreak, the Secretary of State for Education issued a notice which temporarily changed the absolute duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice came into effect on 1 May 2020 and expired on 31 July 2020.
24. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and those who were vulnerable. The government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC plan, should stay at home or go into school.
25. When the government issued this guidance councils still had a duty to ensure the provision in an EHC plan was in place. But the guidance noted it may be difficult to do so, for example where the school was shut or could not open safely, or where parents had chosen to keep the child at home and agreed temporarily that the child would not be accessing education at school.

The Council’s Education Support for Medical Absence (ESMA)

26. ESMA provides teaching, mainly in the three core subjects of Maths, English and Science, to support reintegration back into school. Pupils remain on the role of their school and ESMA teachers work in partnership with the school to ensure continuity and progression for the pupil, taking account of medical advice.

The Council’s guidance on the use of reduces timetables for pupils of compulsory age

27. A reduced timetable must not be treated as a long-term solution, The arrangement should always specify an end-date by when it is expected that the child or young person will return to full-time education (or when an alternative will be provided) and be reviewed regularly in the light of any changes to the child or young persons circumstances.

What did happen?

28. This section sets out the key events in this case and is not intended to be a detailed chronology.
29. Mr X and Ms Y’s son, B, has an EHC plan. B has a diagnosis of Autism and Global Developmental Delay. The Council issued B’s first EHC plan in June 2018. The plan named a mainstream school and said B would receive 1:1 support for five hours per day.
30. In June 2019, the school carried out an annual review of B’s EHC plan. The Council received the EHC plan review reports in November 2019.
31. The Council told Mr X in December 2019 it would amend B’s EHC plan. It sent him and Ms Y the proposed amended plan in January 2020.
32. Ms Y sent the Council their comments on the EHC plan in January 2020. She said the 1:1 support detailed in Section F of the plan confirmed B would be receiving 1:1 support for five hours a day. However, Ms Y said at most B was receiving two-three hours per day. Ms Y said the school made these changes to B’s 1:1 provision in September 2019 because of a lack of funding. Ms Y asked the Council to investigate and said B needs 1:1 support throughout the day.
33. Ms Y asked the Council for an update in March 2020. She said B was refusing to go to school. The Council agreed to check the provision with B’s school.
34. The Council sent B’s finalised EHC plan to Ms Y and Mr X in March 2020. The plan said B would receive 1:1 support for three hours per day. The Council said it would hold a further review within one year.
35. The school contacted Ms Y and the Council on 27 November 2020 to arrange B’s annual review, which it said was overdue. The school held an annual review the following month.
36. In April 2021, a speech and language therapy (SALT) assessment was carried out to contribute to B’s existing EHC plan.
37. Ms Y told the Council in September 2021 she had not received B’s latest EHC plan from the December 2020 review. She asked when the review for the June plan would take place. The Council said the annual review was not late. It said the next review would be in December 2021. It sent Ms Y the March 2020 EHC plan.
38. On 13 September 2021, Ms Y asked the Council for B’s latest EHC plan so B’s teachers could use this to help with his needs. She said B was refusing to go to school.
39. The speech language communication and autism (SLCA) team visited B at school in September 2021. It said B was on a part time timetable to build up his time in school.
40. Mr X complained to the Council the following month.
41. The Council asked Ms Y and the school in October 2021 to arrange an early review of B’s EHC plan. It said it would address the issues of school refusal.
42. The following day, Ms Y told the Council B’s needs have dramatically changed since 2018. She asked for educational psychologist (EP) input. She asked why the Council had sent her the March 2020 EHC plan. She said the school had sent recommendations for the December 2020 annual review. Ms Y said B’s EHC plan was not up to date and his 1:1 provision was removed by the school over two years ago.
43. The Council said it had no record of the December 2020 annual review documentation. It apologised and asked the school to provide it. It said it would process the documents as a priority case and contact the EP service. It said with an early review, it could look at applying for funding for B’s 1:1 provision.
44. On 28 October 2021, the Council considered Mr X’s complaint. It apologised and said its SEND service had experienced a significant increase in demand at a time of staff absence. It said it was never the Council’s intention to deprive B of the support he needs. The Council said the December 2020 review was not forwarded to it by the school. It agreed to arrange an early review with the school. Mr X asked for his complaint to be escalated to the final stage of the complaints process. He said B was still not attending school and he wanted to look into specialist placements.
45. In the following month, the Council told B’s school it had checked what funding B was receiving. It said B was currently at level two funding. It asked the school to complete a new banding form.
46. On 26 November 2021, B’s school asked the Council for an update on when B’s latest EHC plan would be provided. The Council said it had been sent and confirmed the school did send the December 2020 annual review paperwork on time.
47. The Council sent Ms Y and Mr X B’s proposed amended EHC plan on 29 November 2021.
48. The annual review was due to take place on 7 December 2021. The SEND officer said she was ill and asked to rearrange.
49. In the Councils final stage of its complaints process on 21 December 2021, it agreed to identify a new SEND officer. It confirmed it would look into Mr X’s request for a specialist placement.
50. The Council sent Bs finalised EHC plan to Ms Y and Mr X on 29 December 2021. It said B would receive small groups and 1:1 sessions. It named B’s current school.
51. The Council consulted a new school in February 2022. A final revised EHC plan naming the specialist placement was issued in May 2022
52. In May 2022 the Council confirmed the new school can meet B’s needs but is currently full. It said Ms Y had indicated home tutoring would be more appropriate for B at this stage until a space becomes available at the new school. It said as B is registered at, the school, it was responsible for arranging home tutoring. It discussed funding for B. But the school said it did not receive the funding the Council suggested.
53. The Council have confirmed a specialist placement has now been secured for September 2022.

My findings

54. For the reasons outlined in the final paragraph of this statement, I will not investigate what happened between June 2019 and February 2020. I will only consider whether there was any fault on the Council’s part, in its actions from March 2020 to December 2021. I have exercised discretion to investigate the period from March 2020 when B’s EHC plan was issued, and provision not being delivered. This is because there was significant injustice to B caused by loss of educational provision and I am satisfied the Council was aware in March 2020.
55. We asked the Council to explain, with supporting evidence, what reasonable endeavours it made to supply the education provision specified in B’s EHC plan from March 2020 during the Covid-19 lockdown period. It said it spoke to the school who said B remained at home during this period. But the school visited B at home every fortnight to provide work. The Council told us the school recorded a concern as B was not accessing online work. The Council and the school had a duty to complete a risk assessment to see whether B could attend school and if not, assess how the provision would be made, or what reasonable endeavours could be made to provide it. The Council have failed to provide evidence to suggest it did so. This is fault. I cannot say what provision B may have received if there had been no fault. This is because during this period, B could not have attended school. But this would have caused uncertainty to Mr X and Ms Y as to whether more provision could have been provided.
56. The Council initially denied receiving the December 2020 review paperwork and then failed to act on the information. The Council should have issued a decision to maintain or amend the plan. This delay meant B’s EHC plan did not reflect his needs. From September 2020, there was a duty on Council’s to make the SEN provision. In this case, the Council failed to do so. It did not attempt to address the issues of school refusal until October 2021. If the Council had acted appropriately, it is likely it would have consulted with alternative schools sooner. This delay caused uncertainty to Ms Y and Mr X and Mr X gave up work as B was not attending school.
57. The Council failed to act on B’s December 2020 review and issue Ms Y with the final plan in line with the SEN code. Had this fault not occurred, Ms Y could have had the opportunity to exercise her appeal rights. It would have been open to Ms Y to challenge the suitability of B’s school placement and educational provision. But she and Mr X spent time and trouble chasing the Council for B’s latest EHC plan. Mr X told us he and Ms Y also spent time and trouble calling the Council throughout this time. But said they had no response.
58. There is a duty on the school where a child is on roll to provide education. In this case, the school placed B on a part time timetable in September 2021. I cannot consider the actions of the school so I cannot comment on whether the actions taken were sufficient. The Councils SLCA team did provide support to the school. But Mr X told us B would attend approximately one Wednesday a month and B’s attendance record shows 12.2% attendance. Any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall. The Council has provided no evidence showing how it satisfied itself the part-time provision was suitable and sufficient. This is fault.
59. There is further evidence of fault. In the Council’s response to our enquiries, it said because the school did not refer B to its ESMA team, it took no action. But the Council was aware in 2020 that B was not attending school. It relied on the school to make decisions about B’s education. However, the Council was ultimately responsible. This resulted in B missing out on his education.
60. The Ombudsman’s guidance on remedies recommends a payment in acknowledgement of missed provision of £200-£600 per school month. I consider an appropriate figure in this case to be £300 per month between September 2020 and May 2022 when the Council secured a placement at a specialist school. In determining this, I have taken into account that it is likely B could have only attended school on a part time timetable.

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Agreed action

61. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:

• Apologise to Ms Y and Mr X.
• Pay Ms Y and Mr X £150 each for their time and trouble in pursuing this complaint.
• Pay Ms Y and Mr X £4350 for the educational benefit of B, to recognise the impact of its failings on B’s education.

62. Within two months, issue written reminders to relevant staff to ensure they are aware of:

• The Council’s duty to decide on whether to keep, cease or amend the EHC plan within four weeks of the review meeting, and notify parents in writing.
• The Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• Ensure the Council retains oversight and responsibility for its duties to children unable to attend school.

63. The Council should also provide evidence that it has followed the recommendations.

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Final decision

64. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

65. I have not investigated what happened between June 2019 and February 2020. This is because we would not usually investigate events that occurred more than 12 months before a person complains to us. Mr X complained to us in March 2022. I cannot see any reason why Mr X did not complain to us sooner.

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Investigator's decision on behalf of the Ombudsman