Summary: Mrs X complained on behalf of her sister, Mrs Y. Mrs X complained the Council has not reviewed Mrs Y’s son, Z’s, Education, Health and Care Plan (EHCP) since it was issued in 2019 and Z had no school place. Mrs X also complained about the poor communication from the Council and dealing with this has caused Z and his family significant anxiety and distress. The Council was at fault. The Council did not review the EHCP and did not ensure Z received a suitable education. The communication with the Council has been difficult and Mrs Y has been put to time and trouble to complain. The Council has agreed to our recommendations to remedy the injustice these faults have caused.

The complaint

1. Mrs X complained on behalf of her sister, Mrs Y. Mrs X complained the Council has not reviewed Mrs Y’s son, Z’s, Education, Health and Care Plan (EHCP) since it was issued in 2019 and Z had no school place. Mrs X also complained about the poor communication from the Council and dealing with this has caused Z and his family significant anxiety and distress.

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What I have investigated

2. I have investigated:
• Mrs X’s complaint about how the Council has not reviewed the EHCP since it was issued in October 2019.
• Mrs X’s complaint about Z not receiving an education since October 2020, when he was taken off roll from school.
• Mrs X’s concerns about communication with the Council.

The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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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How I considered this complaint

7. I read Mrs X’s complaint and spoke with her about it on the phone.
8. I considered information provided by Mrs X and the Council.
9. Mrs X 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

Background information

10. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. The Council has a duty to secure the specified special educational provision in an EHCP 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)
13. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance. A Council must review an EHCP as a minimum every 12 months.
14. Within four weeks of a review meeting, a Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHCP – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
16. The Ombudsman’s view, based on caselaw, 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 on the part of 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)
17. 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.
18. 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)
19. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
20. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
21. The Ombudsman has issued a focus report on alternative provision. Out of school, out of sight? Focus Reports - Local Government and Social Care Ombudsman

What happened

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case. I am including some information to provide relevant context even though I am not investigating those events.
23. Mrs Y applied for an EHCP for Z in May 2019. The Council acknowledged the request in May. It wrote to professionals requesting information to inform the needs assessment in July 2019. The Council issued Z’s final EHCP in October 2019.
24. The school Z was on roll with a tuition package provided by a tuition company of three hours a week at the start of October 2020. Tuition continued at this level until an annual review in February 2022. The Council was informed of this tuition by the school when the arrangements were initially made. Mrs Y and the school confirmed Z would not be able to cope with more than three hours a week to start with. The school confirmed Z had been out of school for three years. He was taken off roll by the school in late October 2020. The Council was aware of this.
25. In January 2021 Mrs X requested an annual review of Z’s EHCP as the placement specified was the school he was previously on roll at. Mrs X stated Z’s circumstances had changed and requested the Council update the plan to reflect this.
26. In April 2021 the Council split from one authority into two separate Councils. The Council acknowledged this may have added to delays in Z’s case.
27. Mrs X contacted the Council again in May 2021. She requested the Council consider educational placements for Z and questioned if the delay in the arranging the EHCP review has had an impact on provision for Z. The Council response confirmed the annual review was overdue. The Council explained it would send out consultation paperwork to three education placements but could not consult with the company providing tuition. All placements consulted responded saying they were unable to offer Z a place.
28. Another education placement was approached in July 2021 but was unable to offer a place.
29. In August Mrs X contacted the Council again to request contact about the annual review. In September, Mrs Y emailed the Council as it had not responded to previous attempts to discuss the annual review. The Council responded to this email in October.
30. The Council provided evidence it tried to arrange an annual review. The review did not proceed due to concerns about other events with the family. The Council was asked to provide clarification personal information in the EHCP would not be shared.
31. Mrs X complained to the Council in January 2022. She said Z’s EHCP had not been reviewed since it was issued in 2019. The Council discussed the complaint on the phone and agreed to arrange an annual review and confirmed information would be kept confidential.
32. The Council responded to Mrs X’s complaint later in January. It agreed to hold a review and apologised for not holding any annual reviews since the plan was issued. The Council confirmed it was responsible for organising the annual reviews. The Council also explained the lack of communication was down to several vacancies in the SEND team. The Council apologised but offered no remedy. Mrs X requested the complaint was escalated to stage two.
33. The EHCP review was held in February 2022. The review confirmed three hours per week tuition was not enough and the package of tuition should be increased. The tuition company proposed the tuition was increased to 12 hours per week.
34. The Council agreed to increase the tuition to ten hours per week. The tuition was increased in March 2022.
35. The Council issued an amended final EHCP in July 2022 and named an education placement to start in September 2022. The Ombudsman expects the Council to ensure the provision is put in place.
36. The Council also provided its final complaint response in July. The response agreed no annual review had taken place between October 2019 and February 2022 and apologised. The Council also apologised for the poor communication and stated it had staffing issues. The Council acknowledged the delay in the complaints process. The Council offered a remedy for Z missing out on 21 months of education, a time and trouble payment and an apology.
37. Mrs X is not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and provide a greater financial remedy for Z.

My findings

Review of EHCP

38. It is clear from the documentation, and the Council has acknowledged, it did not review Z’s EHCP from when it was issued in October 2019 until February 2022. The Council should have reviewed the EHCP by October 2020 and again in October 2021. When Z was taken off the school roll in October 2020, this was a further opportunity to recognise the need for an emergency review of Z’s provision. The EHCP was no longer accurate, and no consideration had been given to the possibility Z’s needs may have changed since the plan was issued. Mrs X asked for a review in January 2021 for this reason and the Council again failed to act on this request. The repeated failures to review the EHCP is fault. This has caused Z an injustice as the Council did not consider whether it was necessary to update his EHCP to ensure it was still appropriate and could meet his needs.
39. The Councils failure to review Z’s EHCP also meant appeal rights were not engaged. The family lost the opportunity to challenge any decision about maintaining or amending the plan. The Council should have considered a review (which was overdue already) when it knew Z was going to be taken off roll from his previous school as this placement was no longer available.
40. The Ombudsman takes the view that Councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.

Alternative education

41. The Councils response to my enquiries stated the decision to initially offer three hours per week tuition was appropriate when considering how long Z had been out of education. However, it did not review this provision until the annual review in February 2022. The Councils response to my enquiries sets out reasons for Z needing alternative provision but does not explain why the three hours per week was not reviewed sooner. This is fault and has caused Z an injustice. In the absence of any review it is uncertain if Z could have coped with increased hours..
42. Z has additional needs specified in his EHCP which were not being met. Section 42 of the Children and Families Act 2014 sets out the Councils duty to secure special educational provision. There is no evidence to indicate how the Council considered its duty to secure the provision within the plan and this has contributed further to Z’s injustice.
43. This was a critical point in Z’s education. Although it was unlikely Z would be in a position to sit exams or secure an apprenticeship, a key stage of his education was drawing to a close. There is no evidence to show the transition to post 16 provision was being planned and prepared in accordance with the code of practice. This was further fault and caused additional uncertainty about future plans and provision for Z.
44. The Council did not review the education package appropriately and did not review any of the provision set out in Z’s EHCP. The Council has acknowledged this fault and offered £100 a month, for 21 months from October 2020 until July 2022. We calculate months that Z should have received an education, not including school holidays. This is fault and has meant Z has not received an appropriate education, suitable to his needs for 17 school months.
45. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
46. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
47. When a young person has missed education because of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
48. The Council did not review the EHCP during a critical period in Z’s education. Section eight of the SEND Code of Practice stated for children and young people with EHCPs, discussions about post-16 options will be part of the preparing for adulthood focus of the annual review, which must be included from age 13-14. The Council did not complete the annual reviews, so these discussions did not happen. The Council has failed to have any regard for its duties set out in the SEND Code of Practice. Mrs Y and the Council have acknowledged Z was not able to complete exams or engage in full time education. However, the family will be left with the uncertainty that, if the Council had reviewed the EHCP, updated it and ensured Z had appropriate education, his outcomes may be different. The Council seems to have lost sight of Z’s best interests and not complied with its duties set out in legislation and the Code of Practice.
49. As Z has had some educational provision and it is questionable how much more he could have coped with, I consider any payment should be at the lower end of the scale set out in our guidance on remedies.
50. The Council has acknowledged the difficulties Mrs X and Mrs Y have experienced in communicating with the Council and has apologised for this and offered a remedy of £300 time and trouble payment. This is in line with our guidance on remedies and I cannot add to this response.

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Agreed action

51. To remedy the outstanding injustice caused to Mrs Y and Z by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs Y and Z for not reviewing the EHCP, ensuring Z had appropriate levels of tuition and for the difficulties with communication.
• Pay Mrs Y £300 it has offered as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay £4250 for not ensuring Z had a suitable education from October 2020 until July 2022 and failing to review his EHCP for 28 months. This money should be used for Z’s benefit.
52. The Council should take the following action within three months of my final decision:
• Review its procedures and provide guidance to its staff to ensure EHCP annual reviews are completed within 12 months of the date the EHCP was issued and then within 12 months of any previous review.
53. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

54. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs Y and Z. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

55. I have not investigated any part of the complaint before October 2020. The previous school set up tuition and Z was removed from the school roll in October 2020. Mrs Y was aware of issues prior to this date, and it is reasonable for her to have complained about the issues sooner.

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Investigator's decision on behalf of the Ombudsman