Summary: Mr F complains his son, B, has been out of education for three years. The Council offered alternative schools in 2021, but appears to have ‘lost control’ of B’s education when it failed to review his Education, Health and Care (EHC) Plan in May 2021. The Council then failed to follow up the plans it made to fund support in the home. B has been without suitable education for four terms as a result.

The complaint

1. Mr F complains his son, B, has been out of education for three years.
2. He complains the Council has not fulfilled the undertakings it made in December 2021 to secure B’s return to school.
3. He is unhappy with the Council’s response to his complaint.

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The Ombudsman’s role and powers

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. Once 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 have considered information provided by Mr F and information provided by the Council.
7. I invited Mr F and the Council to comment on my draft decision.

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What I found

8. Mr F’s son, B, started mainstream primary school in September 2017. He has autism and ADHD and suffers from anxiety. He has received support from an Early Help Plan and Family Support Worker since September 2019.
9. The Council issued B’s first Education, Health and Care (EHC) Plan in May 2020.
10. The Plan notes that B has not attended school full-time since October 2019. The Plan provides support for reintegration to mainstream school with a target of full-time attendance at a suitable setting by July 2021. The Plan says ‘resource provision’ appropriate to B’s needs should be considered if he is not able to resume regular attendance at his current (mainstream) school.
11. A resourced provision is a mainstream school that has specialist resources to support children with special educational needs.

Mr F’s complaint to the Council

12. Mr F complained to the Council on 24 August 2021. He said B had been out of school for two years with no suitable education. He complained the Council had declined his requests for a home tutor. He complained there was no annual review of B's EHC Plan in May 2021. He said he the Council had advised him to choose a resource provision in May 2021. He chose Richmond Hill but was told it was full until September 2023. He complained there were no plans in place for B’s education for September 2021.
13. The Council responded on 15 September 2021 and apologised for the delay in the annual review. With regard to Mr F’s request for home tuition, the Council said, “with the benefit of a rigorous reintegration plan and, more importantly, the genuine, sustained engagement of the 'team around the child' (parents, school and LA) in the delivery of the plan, we would feel confident about achieving a positive outcome for B in terms of enabling his access back into education."
14. Unhappy with the Council’s response, Mr F asked the Council to respond at the second stage of the Council’s complaints process.
15. The Council responded again on 22 October 2021. The Council said it had offered a place at Carr Manor Primary School Resource Provision during the first 'lockdown', but Mr F had declined the offer. The Council explained that Mr F’s preferred school, Richmond Hill Resource Provision was at capacity and cannot offer a place until September 2023. The Council said it was important to plan for an alternative setting. The Council offered a place at Windmill Partnership with the South Special Inclusive Learning Centre, which was available straight away.

Mr F’s complaint to the Ombudsman

16. Mr F complained to the Ombudsman in June 2022. He said B had now been out of education for three years. He complained ‘promises’ had not been kept by the Council, in particular an offer of home-based 1:1 support made at the end of 2021 with a view to supporting B’s transition to a new school. He said changes to B’s EHC Plan were late and unsuitable. He wanted a place at Richmond Hill and an ‘education support worker’ to prepare B for his return to school.

A note on timing

17. Complaints to the Ombudsman must be made within 12 months of the person affected becoming aware of the matter they complain about, although we may accept late complaints if there was a good reason they could not have been made sooner.
18. There are a number of practical reasons complaints must be made promptly. First, the longer an investigation takes place after the events, the more difficult it is to make sound decisions. Second, if our investigation finds that fault by a Council has caused injustice, we may make recommendations. Our primary aim is to put the person back in the position they would have been in if the fault had not occurred. The more time that has passed, the less likely this will be possible.
19. Complaints to us must also be made after the Council has had an opportunity to respond and put things right.
20. The Council invited Mr F to complain to us in October 2021 if he was unhappy with the Council’s final response to his complaint. Mr F did not complain to us until June 2022, eight months later. He complained about what had happened after the Council’s final response to his complaint: he complained the Council had not fulfilled the undertakings it made in December 2021 to secure B’s return to school. Mr F should have complained to the Council about these new matters first and then complained promptly to the Ombudsman if he was unhappy with the Council’s response. We should have advised Mr F to do this when he contacted us in June 2022, but we did not. As the Council has not raised any objections, I will consider the complaint now.

Events before May 2020

21. Mr F complains B has been out of school since October 2019.
22. The Council issued B’s first EHC Plan in May 2020. The Plan aimed to support B’s reintegration to school. I will not consider events before May 2020 as they are too old. B’s EHC Plan was the Council’s response to the situation at the time. If Mr F had disagreed with the Council’s plans, he could have complained at the time or appealed to the SEND Tribunal about B’s EHC Plan.

May 2020 – October 2021

23. Mr F’s complaint to the Council covers the period May 2020 to October 2021.
24. Mr F complained:
• B had been out of school for two years with no suitable education;
• the Council had declined his requests for a home tutor;
• there was no annual review of B's EHC Plan in May 2021;
• the resource provision he had chosen in May 2021, Richmond Hill, was full until September 2023 and there were no plans in place for B’s education for September 2021.

B’s absence from school for two years without suitable education

25. The Council did not address this complaint. Its response focussed on efforts to secure B’s return to school.

Mr F’s request for a home tutor

26. The Council said that home tutoring was for children without a suitable school place. The Council considered B had a suitable school place and that he could be supported to return to school.

The May 2021 annual review of B’s EHC Plan

27. The Council apologised for the delay and explained the steps it was talking to deal with a backlog of annual reviews. However, the Council was unable to say when it would hold an annual review for B’s EHC Plan.

Plans for B’s education for September 2021

28. Mr F wanted B to attend Richmond Hill, but the school was full and could not offer a place until September 2023.
29. The Council offered places at two alternative schools: one a ‘resourced provision’, the other a ‘partnership setting’. Both are located inside mainstream schools but staffed and resourced by highly specialist teachers and support workers, with appropriate levels of integration into mainstream lessons. Both were available immediately.
30. Mr F declined both offers. He was concerned about transport to the resourced provision and wanted to wait for his preferred school. B remained on roll at the mainstream school.

My Findings

31. The Ombudsman is an administrative review. We do not make decisions about B’s education. Our role is to check the Council followed relevant legislation, regulations, government guidance and Council policies. We cannot question the merits of Council decisions made without fault.
32. In B’s case, the Council planned for his reintegration to mainstream primary school. The plan was unsuccessful. The Council then invited Mr F to choose an alternative resource provision. The resource provision chosen by Mr F was full. The Council suggested alternatives, but Mr F declined them. The Council declined Mr F’s request for home tuition because there were school places available for B and the Council was willing to put in place the necessary support for him to attend (through the ‘team around the child’). There is no fault by the Council here.
33. Mr F did not complain to us for eight months after the Council’s final response which suggests that he, too, accepted the Council’s response at the time. If he had been unhappy, he should have complained to us straight away.
34. The Council was, however, at fault for not holding the annual review of B’s EHC Plan in May 2021.
35. Although the Council did not hold an annual review, it did offer alternative schools. Mr F did not want either of the schools offered. The Ombudsman has neither the authority nor the expertise to judge the suitability of the Council’s offers or Mr F’s reasons for refusing them.
36. If the Council had held an annual review and amended B’s EHC Plan to name a school Mr F did not want (or decided not to amend the Plan to name the school he wanted), Mr F would have had a right of appeal to the Tribunal. The Tribunal could have decided which school B should attend.
37. There are too many “unknowns” for me to say what would have happened if there had been no fault and the Council had held an annual review of B’s Plan.
38. So, while it was fault not to hold an annual review in May 2021, I cannot say what the outcome would have been.

October 2021 – June 2022

39. Mr F’s complaint to the Ombudsman covers the period December 2021 to June 2022. He complained the Council had not fulfilled the undertakings it made in December 2021 to secure B’s return to school. I made enquiries to find out what had happened.

What happened

40. B remained on roll at a mainstream primary school, although he did not attend. The Council held an annual review meeting for B’s EHC Plan on 9 December 2021.
41. The annual review meeting noted B’s anxiety and controlling behaviour had become entrenched and he was currently unable to consider anything associated with ‘school’. It concluded a mainstream school was no longer suitable, but Mr F’s preferred special school had no places available until September 2023. All parties at the meeting agreed that ‘small steps’ would need to be put in place in order for B to accept the concept that he can access education outside the home and move towards him being able to access Richmond Hill provision when a place became available.
42. The record of the review says, “It was agreed B would need to be supported in the home initially, learning to interact with an ‘outsider’ who could build a relationship with him and gradually integrate learning into their interactions. [The Council] agreed that funding would be allocated to support this with [B’s school] undertaking the recruitment process.
43. Following the review, the Council issued a draft amended plan on 17 March 2022.
44. On 26 April 2022, the school emailed the Council to ask whether funding had been secured to support B at home as agreed by the Council the December 2021 EHCP review meeting, or whether it would be possible to refer him to the ‘SEN home team’.
45. The Council said the officer dealing with the case was absent at the time and there was a delay following up the school’s email. Internal emails show the Council was still seeking to ‘make sure the school [is] fully resourced to support an educational provision at home’ in July 2022.
46. Meanwhile, CAMHS and the Council’s family support ‘cluster’ were becoming increasingly concerned about the family and made a referral to the Children with Disabilities Team. They were concerned that B’s prolonged absence from education was becoming a safeguarding concern.

My Findings

47. The annual review of B’s EHC Plan started with the meeting on 9 December 2021. This was already six months late. Following the review, the Council should have made a decision: either to continue to maintain B’s EHC Plan without any changes, or to issue an amended Plan. The Council did not make a decision. This is fault. The Council blamed B’s complex problems and objections from Mr F. While I acknowledge the complexity of B’s problems and the Council’s efforts to accommodate Mr F’s wishes, these are compelling reasons to complete the review and make a decision. The decision comes with a right of appeal to the SEND Tribunal should parents and the Council disagree. Only the Tribunal can resolve any difference of opinion.
48. The Council agreed to fund support in the home and a ‘small steps’ approach, with B’s school recruiting someone to work with B. However, it appears the Council did not follow through its plans, so that by July 2022, seven months later, support was still not in place and the school was still ‘chasing’ the Council for funding. Something had clearly gone wrong. The Council was responsible and is at fault.

June 2022 – the present

49. Mr F complained to us in June 2022. I asked the Council what the current situation with B's EHC Plan and his education was. The Council explained that B remained on roll at the mainstream primary school and it had not yet finalised his EHC Plan following the December 2021 review.
50. The Council explained it had held a ‘pre-meeting’ to review B’s EHC Plan on 9 December 2022. The Council described the meeting as ‘positive’.
51. However, the Council said the school had been unable to source a suitable tutor for B and had requested further support from the Council. The Council said it would review the option of tutoring again in the first week of the new year to update his plan and continue the ‘small steps’ approach toward becoming ready for a new school setting in September 2023.
52. The Council undertook to issue a draft amended plan by mid-January 2023 and finalise the Plan four weeks later naming a new school for September 2023.

Findings

53. There was further delay issuing B’s amended EHC Plan. This is fault.
54. The school was unable to source a tutor to work with B at home to deliver the support and ‘small steps’ approach the Council had agreed to fund in December 2021. Twelve months had passed without support. This is fault by the Council.

The Council’s final response

55. In its response to my enquiries, the Council acknowledged B has not been in receipt of full-time education for a number of years. However, the Council said it had made repeated and varied offers of appropriate alternative schools in line with its legislative duties. The Council said these offers were all declined by the family. Consequently, the Council said it had agreed for B to remain out of school but accessing a small steps approach to reintegration in line with his “entrenched” mental health issues.
56. The Council said it did not consider it had been under a duty to make alternative arrangements for B’s education since it had made a suitable school offer and, later on, education was available through the small steps approach, overseen by B’s school.
57. The Council said that full time education is clearly not suitable for B in light of his entrenched anxieties and mental health issues.
58. The Council acknowledged there were times when communication with the family fell short and the May 2021 review of B’s EHCP was delayed by seven months. The apologised and offered a payment of £300.

Conclusions

59. The Council offered two alternative schools in October 2021 which Mr F declined. However, in response to my enquiries, the Council said it was unable to say from its records whether it agreed with Mr F’s decision, or whether it explained to him the consequences of not accepting the alternative places offered at the time.
60. The Council should have made a decision about B’s education and updated his EHC Plan accordingly at the annual review in May 2021. If Mr F disagreed, he could have appealed to the SEND Tribunal.
61. However, the Council failed to review and amend B’s EHC Plan in May 2021, and the review was not progressed until December 2022.
62. The Council said the small steps approach, overseen by B’s school, provided him with suitable education. The Council proposed the approach in December 2021. The Council funded the approach. I consider the Council was ultimately responsible. By December 2022, the school had been unable to source a tutor to work with B. It appears B was without the small steps provision the Council decided he needed for 12 months.
63. The Council said full time education was clearly not suitable for B in light of his entrenched anxieties. The Council referred me to minutes of meetings in which the ‘huge barriers to daily living’ B faced were discussed. B’s difficulties are well documented. However, the Council does not appear to have made a specific decision about his educational needs, or considered evidence about the impact of his mental health on his education, other than deciding a ‘small steps’ approach was needed in December 2021.
64. The Council failed to secure the ‘small steps’ support for B to access education for 12 months between December 2021 and December 2022.
65. In conclusion, the Council appears to have ‘lost control’ of B’s education between May 2021 when it failed to review and amend his ECH Plan and December 2022 when it agreed to consider home tutoring again and review the plans in light of the difficulties his school was having recruiting a tutor.
66. As a result, B has been without suitable education for four terms as a result of fault by the Council.

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Agreed action

67. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result 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. When this is not possible, as in the case of B, we may recommend the Council makes a symbolic payment.
68. B was without suitable education for four terms starting in September 2021 when the Council offered an alternative school but failed to follow up its proposals by amending B’s EHC Plan.
69. There are clearly considerable barriers to B’s participation in education, and I am unable to say what suitable provision would have been. I will, therefore, recommend a symbolic payment to recognise the missed opportunity to try to engage B in learning and address the issues which prevent him from participating and which became ‘entrenched’.
70. I recommended the Council:
1. apologises for the faults I have identified;
2. pays Mr F £7,200 to recognise the impact on the family of the missed opportunity to engage B in learning; and
3. reflects on what went wrong in B’s case and reports back to the Ombudsman and the relevant scrutiny committee at the Council on the actions it proposes to take to address any problems it identifies.
71. I recommended the Council takes actions (a) and (b) within one month of my final decision, and (c) in time for the next scrutiny committee meeting.
72. The Council should provide us with evidence it has completed the above actions.
73. The Council accepted my recommendations.

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Final decision

74. I have completed my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman