Summary: The complainant alleged that the Council delayed in amending his son’s Education, Health and Care (EHC) Plan and it failed to provide alternative education when he had no school place. The Council accepted fault. It has agreed the remedy for the injustice caused. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, who I refer to as Mr X, complained to the Council that it:

1. failed to provide education to the complainant’s son (Child C) between September 2021 to April 2022;
2. failed to keep the complainant properly informed when the Council was considering Child C’s Post 16 education;
3. failed to ensure that Child C’s Education, Health and Care (EHC) Plan was amended by 31 March 2021, as required by the legislation for pupils making a significant transition to post 16 education.

2. Mr X says that, because of the lack of education, Child C’s behaviour deteriorated, and his mental health suffered. The family was also caused avoidable distress and time and trouble.

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What I have and have not investigated

3. The Council has considered Mr X’s complaint under its three stage complaints procedures and upheld his complaints. Mr X considered the Council had not fully recognised the injustice caused to Child C and to the family. I have therefore investigated the consequences of the Council’s accepted faults.

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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. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
6. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
8. If we are satisfied with a council’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)
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.

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How I considered this complaint

10. I made enquiries of the Council and considered its comments. I have spoken to Mr X on the telephone, and he has commented on the Council’s response to his complaint. I issued a draft decision statement to the Council and Mr X and have taken account of their further comments before reaching a final decision.
11. I have looked at events since December 2020. As the Council accepted fault, I have provided a brief chronology and have focused on the impact of the faults.

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What I found

Legal and administrative arrangements

12. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the January 2015 Code of Practice (the Code) provide guidance to councils about how to do this.
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 needs provision and Section I names the suitable placement.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put 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. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
15. Parents can express a preference for a school, including an independent school approved by the Secretary of State. Section 41 of the Act states that the Secretary of State may approve an institution for the purposes of it enabling the institution to be the subject of the request to be named in an EHC Plan. In certain cases, councils can direct a school to take a pupil where it is considered its reasons for refusing admission are not reasonable.
16. There is a right of appeal to the Special Educational Needs and Disability (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 has been issued.

Annual reviews

17. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
18. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
19. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan, it should send an amendment notice to the parents and finalise the EHC Plan “without delay”. In a recent legal case, the Court determined that it should take a council twelve weeks from the date of annual review to issue the amended final EHC Plan.
20. The Regulations require that, when moving a child from secondary school to a post 16 institution, the EHC Plan must be reviewed and amended by 31 March in the year of the transfer.

Children out of school because of medical needs

21. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
22. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
23. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
24. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

Key facts

25. Child C was adopted by Mr X and his partner in 2014, having been placed in care due to neglect by his birth parents. As a result of his traumatic early years, Child C has social, emotional and mental health difficulties which has adversely affected his learning abilities. Child C has had an EHC Plan since 2016. He attended an independent secondary school (School B). In 2020, Child C was in his last year at School B (Year 11 when pupils take their GCSEs). School B does not have a sixth form, ie post 16 education.
26. In December 2020, there was an annual review. Mr X expressed an interest in Child C redoing Year 11 because he had missed some education during the Covid-19 lockdown. The Council’s special educational needs (SEN) officer attended the review meeting. Mr X says that the SEN officer said that, although it was an unusual request, if Mr X explained the reasons for the request, the Council would consider funding the extra year at School B. Mr X says that all the professionals agreed it was in Child C’s interests to redo a year.
27. Between December 2020 and April 2021, Mr X says that there were several meetings with the Head of School B who said that it could support Child C, but he would be placed in a construction training programme which Child C did not want. In April 2021, the Council issued a draft amended EHC Plan (some five months after the review meeting). Mr X responded and asked for a meeting to discuss options. Between April and June 2021, Mr X says that there was no response from the Council to his many telephone requests to meet the SEN officer. Mr X started looking at alternative schools because School B was offering a course which did not interest Child C.
28. In May 2021, the Council consulted School B about Child C remaining there. In June, the Council says that Mr X formally requested a placement at School D, another independent school, for September 2021. Mr X says that, if the Council had responded to his requests for a meeting in April 2021, it would have been aware of his wish to consider another school given School B was offering a course which Child C did not want to pursue.
29. Between June and August 2021, Mr X constantly asked for a response. The SEN officer responded in August and sent a request to School D for a placement for Child C from September 2021. There were further requests from Mr X’s partner for a call back from the SEN officer. At the end of October 2021, the SEN officer called Mr X to arrange a meeting, but the date was not convenient. Mr X complained to the Council.
30. There was no school placement for Child C, starting in September 2021, and no offer of alternative educational provision. The Council says that it did try to extend his placement at School B unsuccessfully. In October 2021, the Council sent a stage two complaint response. The Council accepted Child C did not have a school place from September 2021, that there was no offer of alternative education and communication with Mr X had been poor.
31. In December 2021, the Council received confirmation from School D that it could meet Child C’s needs. In January 2022, Child C started there under a part-time transition plan. He started full-time education in early March 2022.
32. In June 2022, the Council sent its final complaint response, confirming that the complaints were upheld and that there had been training for SEN officers about when alternative education should be offered, and that the team had been reorganised. Mr X is doubtful that the service has been improved because he is having the same difficulties with the Council concerning his younger son.

Findings

33. The Council has accepted fault on all three complaints and has apologised. That is to the Council’s credit. I also consider that the Council should have issued a final amended EHC Plan by 31 March 2021 in accordance with the statutory requirements. So, my view is that too is fault.
34. There was an unremedied injustice which I needed to consider. Child C has been without education between September 2021 to January 2022 (four school months). I accept he did not receive full-time education at School D until the beginning of March. But it is often the case that there will be a transition plan when a pupil, with special needs, starts a new school. So, I consider he was appropriately placed in education from January 2022.
35. The Ombudsman’s guidance on remedies makes the following points:
• where there has been a loss of education, we normally recommend between £200 to £600 per school month;
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different.

36. Mr X and his partner are caring for two special needs children who have suffered trauma during their early childhoods. The Council has accepted that its delays, failure to provide education and its communication with Mr X fell below acceptable standards, and this would have added to his caring responsibilities.

Agreed actions

37. To remedy the injustice, the Council has agreed to, within one month of the final statement:
1. pay £2,400 for the four months of missed education for Child C to be used by Mr X in a way he and School D consider will benefit Child C’s educational prospects;
2. pay a symbolic sum of £600 for the avoidable frustration and distress caused by its faults; and
3. we have made recommendations previously about how the Council can improve its SEN services. The Council should provide a brief overview of how it considers its improvements are working in practice in respect of preventing delays in issuing EHC Plans after annual reviews.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. My view is that there is fault causing an injustice. The Council has agreed the remedy for this. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman