Summary: Mrs X complained the Council did not review her child’s education, health and care plan when it should have, failed to provide the provision in that plan, and failed to provide alternative education when her child could not attend school. Mrs X said there had been an impact on her child of the missed education and special provision, and a wider impact on the family. We find the Council at fault, and this caused injustice. The Council has agreed to apologise and make a payment to remedy the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complained about the way the Council handled her child’s special educational needs and education. Specifically, she complained that the Council:
1. failed to complete the education, health and care plan annual review process within statutory timeframes, and refused to review the plan when she asked it to;
2. failed to provide all the provision set out in her child’s education, health and care plan; and,
3. failed to provide alternative education when her child was unable to attend school.
2. Mrs X said there had been an impact on her child of the missed education and special provision, and this impacted her child’s mental health. She said there had been a wider impact on the family, and a financial impact because Mrs X had to stop working in order to take care of her child.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

11. Mrs X first brought her complaint to us in July 2022, complaining about events from June 2021 onwards. At that stage, Mrs X’s complaint was premature as the Council had not completed its consideration of her complaint under its own complaints procedure. We re-opened our investigation in August 2023 after the complaints procedure had completed.
12. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. In this case, there were delays in complaint handling which both parties contributed to. For this reason, I find there are good reasons for us to exercise our discretion and look at events from June 2021.
13. Regarding part c of this complaint, Mrs X complains the Council failed to provide alternative education for her child, B, from January 2022.
14. The Council issued an education, health and care (EHC) plan for B in February 2022 which named the school they would attend for the rest of that academic year, and the school they would start in September 2022.
15. B stopped attending school in the early part of the spring term of 2022. B only had two terms left at this school. Given the limited time B had left at this school, I do not consider it reasonable for Mrs X to have exercised her right to appeal the February 2022 EHC plan. This is because an appeal would have been unlikely to provide a timely resolution.
16. For this reason, I have decided there are good reasons for us to exercise our discretion and investigate the Council’s provision of alternative education from the early part of spring term 2022 to the end of the summer term 2022.
17. B did not start at the named school in September 2022. This is part of an ongoing complaint with the Council. For this reason, I have not investigated September 2022 onwards.
18. For these reasons, the scope of this investigation begins in June 2021 and ends in summer 2022.

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How I considered this complaint

19. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
20. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

Education, health and care plans

21. A child or young person with special educational needs may have an education, health and care (EHC) plan. An EHC plan sets out the child’s needs and what arrangements should be made to meet them. The council must provide the provision set out in the EHC plan.
22. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC plan and within 12 months of any later reviews.
23. There is a right of appeal to the SEND Tribunal against the school or placement named in the EHC plan.
24. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
25. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
26. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Alternative education

27. 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 educational provision.
28. 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)

What happened

29. Mrs X’s child, B, has an education, health and care (EHC) plan. The Council issued an amended EHC plan in July 2021 after a SEND Tribunal looked at B’s plan.
30. In November 2021, the Council reviewed B’s EHC plan.
31. In the early part of the spring term 2022, B stopped attending school.
32. In February, the Council issued an EHC plan for B which named the school they would continue to attend for the rest of the academic year, and the school they would start in September 2022.
33. In June, Mrs X complained. The Council upheld Mrs X’s complaint that it did not hold the annual review of B’s EHC plan within the statutory timeframes. It said it did not do this because the Tribunal was reviewing the EHC plan at the same time the review was due.
34. The Council said the Special Educational Needs and Disability Code of Practice does not say a Tribunal can delay an annual review, but also the Code does not specify what should happen in the event a Tribunal appeal is in process, nor how an annual review should be factored in.
35. The Council said it had not been able to establish what level of occupational therapy support was in place at the school for B. It said B had received some speech and language therapy sessions but there was no evidence of progress made.
36. The Council said it was made aware in January 2022 that B’s class size was bigger than the EHC plan said it should be. It said B’s one-to-one teaching assistant had left the school suddenly and the school did its best to replace them. The replacement started at the end of January.
37. The Council said the school put intervention in place for B when they stopped attending school. The Council said lots of support was in place to help B remain at school, and receive education while they were not attending school.
38. The Council did an annual review of B’s EHC plan in December 2022.
39. In March 2023, the Council issued an EHC plan for B naming a different school.

Analysis

Reviewing the education, health and care plan

40. Mrs X complained that the Council failed to complete the education, health and care plan annual review process within statutory timeframes, and refused to review the plan when she asked it to (part a of the complaint).
41. The Council said in its complaint response that it did not do an annual review of B’s EHC plan in June 2021 because the plan was being appealed at the SEND Tribunal at the same time. However, the Council did uphold this part of Mrs X’s complaint.
42. The purpose of an annual review is to consider the child’s progress towards achieving outcomes specified in their EHC plan, and whether these outcomes remain appropriate. Although the SEND Tribunal can suggest amended outcomes (if appropriate), this would not be the main object of the Tribunal’s considerations. Therefore, it is still appropriate to do an annual review as set out in the Code of Practice.
43. I find the Council at fault for failing to do an annual review of B’s EHC plan in June 2021 as it should have. I find this fault caused Mrs X injustice in that it caused uncertainty about B’s progress with the provision set out in the plan.
44. Mrs X said she asked the Council to review B’s EHC plan in September and October 2021, but the Council refused to do so.
45. The Council said an annual review of the plan was scheduled for October 2021. It said Mrs X asked the Council to reschedule the review. It was rescheduled for November but ended up being held in December.
46. I do not find the Council refused Mrs X’s request for a review of B’s EHC plan. I find the Council properly considered her request and decided it was not necessary as there was a review due which took place.
47. For this reason, I do not find the Council at fault.

Special educational provision

48. Mrs X complained that the Council failed to provide all the provision set out in her child’s education, health and care (EHC) plan (part b of the complaint).
49. B attended school for the autumn term 2021. Their EHC plan said the following:
• B’s class would have no more than 10 pupils;
• B would get one-to-one support throughout the day;
• B would get weekly one-to-one sessions with a qualified speech and language therapist; and,
• B would have weekly occupational therapy treatment sessions for the first term, which may reduce to fortnightly depending on their progress.
50. Regarding the class size, the Council said it became aware in January 2022 that B’s class was bigger than 10 pupils. This was because of staffing issues. The Council accepted this in its complaint response and apologised for the shortfall in this provision. It apologised for upset caused to B and the family as a result of this.
51. I find the Council at fault. B’s class size should not have been bigger than 10 pupils, but it was. I find this fault caused B injustice because it caused unnecessary distress. The size of B’s class meant they were left in an environment which was unconducive to their special educational needs. On balance, I find this was a contributing factor to B’s later non-attendance at school.
52. Regarding one-to-one support, the Council said the school did its best to replace B’s one-to-one teaching assistant when they left on short notice. The school found a replacement at the end of January. In the interim, the Council said another member of school staff provided one-to-one support for B.
53. The Council said the school’s attempts to support B after the teaching assistant left were reasonable and sufficient at the time. This is a decision the Council is entitled to make. I cannot find fault here as there is no evidence of a lack of one-to-one support. The school covered the gap in support in the short term (one month) while finding a replacement. For this reason, I do not find the Council at fault.
54. Regarding weekly one-to-one sessions with a qualified speech and language therapist, Mrs X said B did not receive any sessions. The Council said B had some sessions but there was no evidence of progress. It upheld this part of Mrs X’s complaint because B did not get all the speech and language sessions they should have. The Council apologised for this.
55. The Council said the school provided some speech and language therapy sessions when B attended school.
56. The Council accepted that not all of B’s speech and language therapy sessions were provided for the spring term. There is no evidence that the Council provided weekly speech and language therapy sessions for B for the summer term.
57. I find that the Council provided some weekly speech and language therapy sessions in the autumn term when B was in school, but little or none in the following two terms. This is fault. The injustice caused by the fault is the impact on B of the missed provision.
58. Regarding weekly occupational therapy treatment sessions, the Council said it had not been able to establish what level of occupational therapy support was in place at the school. It said the EHC plan said teachers could implement occupational therapy, but it found no evidence that teachers received the strategies required to deliver the treatment. The Council upheld this part of Mrs X’s complaint and apologised.
59. The Council said occupational therapy treatment sessions were provided by the school when B was attending. Mrs X said B did not receive any occupational therapy sessions in the autumn term.
60. It is unclear how many occupational therapy treatment sessions B received in the autumn term (when they were attending school) or spring term, and it appears none were provided in the summer term. This is fault. The injustice caused by this fault is the impact on B of that missed provision.
61. Mrs X complained the school did not provide any mental health support for B. Mrs X accepts that there is no such support set out in B’s EHC plan. But she said there would have been if the Council had reviewed the EHC plan in June 2021 as it should have.
62. This is speculative. I cannot say what provision would or would not have been in B’s EHC plan had the Council reviewed the plan when it should have. For this reason, and because it was not provision set out in B’s EHC plan, I do not find the Council at fault.

Alternative education

63. Mrs X complained that the Council failed to provide alternative education when her child was unable to attend school (part c of the complaint).
64. As I have set out above (see paragraphs 13 to 18), I have investigated the Council’s provision of alternative education from the early part of spring term 2022 to the end of the summer term 2022.
65. The Council said its section 19 duties were triggered at the end of January 2022 when Mrs X told it that B had not been at school for ten consecutive days.
66. In its complaint responses to Mrs X, the Council set out the efforts the school had made during this time to make sure B received an education. This included sending work home and one-to-one support online.
67. The Council told the Ombudsman that it liaised with the school to make sure the school was providing B with home education in line with the school’s home-schooling policy.
68. I find the Council had adequate oversight of what the school was providing B to determine that the education provided by the school to be done at home was suitable and appropriate. This is a decision the Council was entitled to make. For this reason, I do not find the Council at fault. However, I find the Council did not arrange the full special educational provision, as required by section 42 of the Children and Families Act 2014. I have found the Council at fault for this above.

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Agreed action

69. Within four weeks of this decision, the Council has agreed to apologise in writing to Mrs X for the injustice caused by failing to review B’s EHC plan in June 2021.
70. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
71. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £1600. This is made up as follows:
• The Ombudsman’s published guidance on remedies recommends a payment of between £900 and £2400 for missed special educational provision, and a smaller amount for missed speech and language therapy and occupational therapy. I have considered that B’s class size was too big for the one term they attended regularly, and that both the speech and language therapy and occupational therapy were partially provided for two terms and not provided at all for one term.
• I consider £800 per term is an appropriate and proportionate amount for the missed provision. I consider this provision was missed for two full terms (one full term in the summer 2022, and two partial terms before that). £800 per term multiplied by two terms is £1600.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have completed my investigation. I uphold parts a and b of the complaint because I find fault causing injustice. The Council has agreed to apologise and make a payment to Mrs X to remedy the injustice.
74. I do not uphold part c of the complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman