Summary: Mrs X complained the Council failed to ensure Y received suitable education while out of school, resulting in missed education and distress to Y and his family. We found the Council at fault. We recommended it provide an apology to Mrs X, pay £300 for distress, pay £7200 for missed education and act to prevent recurrence.

The complaint

1. Mrs X complains the Council failed to provide educational provision and special educational needs support to her son Y, from June 2021 to September 2022. She says Y has missed education and social interaction, negatively impacting his mental health. The family has also been strained due to the impact of having Y at home.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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.
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 spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
7. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Annual Reviews

8. Councils have a duty to ensure a child receives the educational provision set out in their Education Health and Care Plan (“EHCP”).
9. Councils must review an EHCP at least every 12 months.
10. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
11. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
12. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
13. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
14. Where the council does not agree the suggested changes it may still issue the final EHCP.
15. In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Right to education

16. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
17. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.

Principles of good administrative practice

18. The Ombudsman publishes a guidance document setting out the standards we expect from bodies in jurisdiction; “Principles of good administrative practice”. This includes operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld.

Guidance on Remedies

19. The Ombudsman publishes a guidance document setting out our approach to remedying injustice where we find fault. This is guidance for staff that is made available to the public for transparency. Councils may wish to take this into account when deciding on remedies during their internal complaints process.
20. The guidance details our approach to remedying fault which has resulted in a child missing education. It suggests a monthly payment taking into account factors such as the age of the child, their special educational needs and whether they have missed education during an important school year.

What happened

21. Y has Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. The Council issued Y with an EHCP in June 2020. This included teaching strategies, individual adult support and specific teaching of social skills and anxiety management embedded in the school day.
22. Y’s school held an annual review meeting on 6 June 2021. The Council was in attendance.
23. Records from the meeting show the school explained it had marked Y as medically unfit to attend from 28 May due to concerns over safety as school was a trigger for his anxiety and aggressive outbursts. The school and Y’s parents agreed Y needed a change of provision as the school was unable to meet his needs.
24. The Council did not progress the review or amend Y’s EHCP.
25. Mrs X says she contacted the Council seeking it arrange education for Y. She says the Council arranged a tutor in November but the provider cancelled before attending. She says the Council did not arrange any other provision and said it was struggling to find tutors.
26. In April 2022 Mrs X complained to the Council:
• It ignored her communications.
• It had not met Y’s EHCP provision.
• It had not reviewed Y’s EHCP.
• Tuition was set up but then stopped.
• Y had missed education and social interaction.
27. Mrs X asked the Council to arrange education urgently.
28. In May the Council responded, in summary:
• An annual review took place in June 2021.
• Y’s school decided to remove him from roll.
• It should have issued an updated EHCP following the review and apologised for not doing so.
• It would arrange the next EHCP review shortly.
• It continued to work hard to arrange a tutor and noted Y would start a new setting from September 2022.
29. Mrs X asked to go to stage 2.
30. In June the Council explained it would not provide a further response at stage 2 because it upheld the complaint. It had accepted shortcomings and provided explanations and details of how it would rectify the situation. In addition it accepted Y should not have been taken off-roll until it had secured alternative provision. It was now reviewing its processes in relation to children whose placements were not meeting their needs to ensure that alternative provisions are put in place before a child is taken off-roll.
31. The Council has provided records following Y’s June 2022 EHCP review. This shows his educational provision was to remain the same but a new setting was named to start from September 2022.
32. In September 2022 Y started a new setting. When I spoke to Mrs X she said there had been problems since and Y was again out of education. I informed Mrs X she would need to complete the Council’s complaints process regarding any new issues before contacting the Ombudsman.

Findings

33. The Council did not complete the EHCP review process following Y’s June 2021 review meeting. This is fault. I note the Council recognised this and apologised.
34. Following the June 2021 review, the Council should have taken action to identify a new setting for Y and arranged alternative provision in the meantime. While a setting was identified to start from September 2022, the Council did not put in place alternative provision. This is fault. I note the Council faced difficulty sourcing provision however it remains its duty to ensure a child receives education while out of school.
35. Upon Mrs X’s complaint the Council accepted some shortcomings and explained what actions it would take to improve its service. However, it did not consider a remedy for the personal injustice suffered by Mrs X and Y as we would expect. This is fault.
36. Y missed 12 months of education (term time only) during his GCSE year. He has suffered distress due to being out of education and this has been greater due to his special educational needs. Y’s family has also suffered distress due to having to care for Y at home and because they did not receive the support due from the Council. This is injustice.

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Agreed action

37. To remedy the injustice set out above the Council should carry out the following actions:
38. Within one month:
• Provide Mrs X with a further written apology;
• Pay Mrs X £7200 in recognition of Y’s missed educational provision;
• Pay Mrs X £300 in recognition of the distress suffered by her and her family;
39. Within three months:
• Consider what action the Council can take to improve access to alternative provision in its area and inform the Ombudsman of its findings;
• Issue a memorandum to complaint handling staff, drawing their attention to the Ombudsman’s Guidance on Remedies and our expectations as to a suitable remedy.
40. The Council has accepted my recommendations.

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Final decision

41. I find the Council at fault as it did not ensure Y received suitable education while out of school. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman