Summary: There was fault by the Council. There were administrative errors and delays sending a final Education, Health and Care plan after mediation. There were also delays referring child Y for home tuition, which meant she spent 7 months with no formal education. Finalising the Education, Health and Care plan, reviewing procedures and making a payment to Y and Mrs X remedies the injustice.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council has not provided her daughter, Y, with education since it was told she was no longer attending the alternative provision on 30 November 2022.
2. Mrs X also complains the Council delayed sending a final Education, Health and Care (EHC) plan after mediation in March 2021. She says the Council has sent the wrong documents on a number of occasions which has resulted in confusion and delays.
3. Mrs X says the Council has not sent details of which specialist provisions it consulted, their replies and which version of the EHC plan they were consulted on so the family can make an informed decision on their daughter’s education.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I read the papers put in by Mrs X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Mrs X and the organisation 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

EHC plan

9. 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 in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements named in the EHC plan are 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.
11. 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 is issued.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

13. 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)
14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must tell 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)
15. 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)
16. 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)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. 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 Council issues the final amended plan.
19. 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).
20. The Ombudsman’s view, based on case law, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Key facts

21. The Council issued a final EHC plan for Y on 21 December 2020. Mrs X appealed to the SEND tribunal against the content and school named in the plan.
22. The Council and Mrs X attended mediation on 23 March 2021. The agreement at mediation was that school should formally review the EHC plan to ensure that section B (needs) and section F (provision) were accurate. The agreement said ‘once the review is complete, the matter will be subject to statutory review process and timescales. Review notes should be issued to the Council by 30 April 2021. Mrs X should receive the result of the Council panels consideration of the review notes within 2 weeks of receiving them, by 14 May 2021’.
23. The mediation agreement said ‘possible outcomes are the EHC Plan may remain un-amended, be amended (partially or fully) or cease to be maintained. The letter of notification will provide parents with new rights of appeal’.
24. The school held the annual review on 30 April and the Council received the review notes on 27 May 2021. The Council sent the notification letter to Mrs X on 3 June 2021 to say it would amend the EHC plan.
25. The Council says it sent the proposed amended EHC plan to Mrs X on 2 July 2021. Mrs X says she told the Council on 9 July, when she received the document, it had not enclosed the proposed changes. The Council sent the proposed changes on 23 July after Mrs X contacted the Council again. Mrs X said she emailed the Council again as 2 documents were missing and not included in the draft plan.
26. Mrs X sent her comments on the draft plan to the Council on 28 July 2021. The Council says it received the comments on 12 August 2021 and they were not followed up until 10 September 2021 due to staff holidays. On 10 September 2021 Mrs X says the Council told her on the telephone the EHC plan would name a specialist provision so she agreed for the Council to finalise the plan.
27. The Council said there was an administrative error and the EHC plan sent to Mrs X on 18 September 2021 was the wrong plan.
28. There was an annual review in April 2022. The Council said Mrs X sought Education Other Than At School (EOTAS).

My analysis

29. Mrs X complains the Council delayed sending a final EHC plan after mediation in March 2021. She says the Council has sent the wrong documents on several occasions which has resulted in confusion and delays.
30. There was a delay after mediation. The school took 4 weeks longer than the time specified to send the notes to the Council. This was not fault by the Council, although I have seen no evidence the Council chased this up. The Council sent the notification letter quickly so this did minimise the delay at this point.
31. There was then fault by the Council which caused delays. The Council sent the wrong documents to Mrs X on 2 July. The Council then told Mrs X on the telephone that the EHC plan would name a specialist provision and issued the wrong final EHC plan on 10 September 2021 rather than proposed amendments. The Council has said Mrs X could have used her right of appeal to the SEND tribunal at this point. Mrs X says the Council told her as it sent the plan in error, she had no right of appeal.
32. The mediation gave clear direction in March 2021 that the Council should decide whether to revise the plan. There was a clear intention that this should be done without delay. The Council sent Mrs X the wrong plan after 6 months, she was left unsure if she had a right of appeal and as of August 2022 the plan is not finalised. There is clear evidence of fault by the Council during the administration of Y's EHC plan. In order to remedy this fault, I consider the Council should finalise the plan without delay in order to ensure Mrs X is able to use her right of appeal if she does not agree with the provision. I also consider the Council should make a payment of £500 towards Mrs X’s distress at being sent the wrong documents and her time and trouble pursuing the complaint.
33. Mrs X says the Council has not sent details of which specialist provisions were consulted, their replies and which version of the EHC plan they were consulted on
34. The Council has sent me details of the specialist provisions it consulted and the version of the EHC plan used. Two placements said they could not meet Y’s needs and two specialist placements did not have available spaces. As the Council consulted the schools named by Mrs X, I do not find fault on this point.
35. I note Mrs X’s view that she was unclear which version of the EHC plan the Council consulted schools on. However, this has not affected the result of the consultation, as the specialist placements were full so the contents of the plan did not affect whether they offered a place. And, given Y's needs, it seems clear that by September 2021, Y needed a specialist placement.

Education

36. 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.
37. 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)
38. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016) We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
• decide, 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;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they can do so; and

put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Key facts

39. Y was attending school until July 2021. In September 2021 Y was too unwell to attend school. She received tuition from a home and hospital education service from November but Mrs X asked for this to stop at the end of November 2021. Mrs X says the provision was not appropriate.
40. The Council said Y’s school then offered online learning, alternative provision and work sent home but Mrs X declined this as it did not meet Y’s needs.
41. The Council referred Y for face to face tuition in June 2022.

My analysis

42. Mrs X, complains the Council has not provided her daughter, Y, with education since on 30 November 2021.The information I have confirms that Y has not been in education from 30 November 2021 until July 2022. This is not in dispute. It is clear the Council has tried to make arrangements through school, alternative provision and hospital school for Y’s education while she was off school. However, when told these arrangements were unsuitable I cannot see evidence that it considered and organised face to face tuition without delay.
43. Y stopped attending the alternative provision on 30 November 2021. The Council did not refer her for face to face tuition until June 2022 and this had not been started when I made enquiries in August 2022. So, Y has received little formal education for a whole academic year (year 9). This is an injustice that has resulted from delay in providing suitable education for her needs.
44. In order to remedy the injustice, our remedies guidance says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
45. The Council is now finalising an EOTAS package for Y. I consider a financial remedy so that Mrs X can purchase items (musical instruments, laptop etc) to help with the EOTAS package would be a suitable remedy. I propose a remedy of £200 a month from December 2021 to July 2022, minus one month to account for holidays. This is 7 months, so £1400.

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Agreed action

46. The Council should finalise the EHC plan within 1 month of the date of the decision on this complaint.
47. The Council should review its procedures to ensure that administrative errors (such as sending the wrong documents) do not recur within 1 month of the date of the decision on this complaint.
48. The Council should pay £1900 to Mrs X within 1 month of the date of the decision on this complaint.

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Final decision

49. I have completed my investigation of this complaint. This complaint is upheld as there is evidence of fault by the Council which has caused injustice to Mrs X and Y. The remedy outlined above is a satisfactory remedy to the injustice caused.

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Investigator's decision on behalf of the Ombudsman