Summary: Mr X complained the Council has not provided education for his daughter, Y, since she has been unable to attend school from January 2022. He also complained Y has not had the full provision set out in her Education, Health and care plan (EHCP) and the Council has not adhered to statutory timescales about the EHCP and annual review documentation. Mr X also says the communication with the Council throughout this matter has been poor. Mr X says Y has missed education, Occupational therapy and Speech and Language Therapy provision and the family have been put under considerable stress. The Council did not provide education until appeal rights to the tribunal were engaged, did not provide documentation after annual reviews within the statutory timescales and communication was difficult. Mr X and Y suffered distress and Mr X has been put to time and trouble to complain. The Council should apologise to Mr X and Y, make a financial payment on top of the amount identified in its complaint response, ensure provision is in place for Y and update its policies.

The complaint

1. Mr X complained the Council has not provided education for his daughter, Y, since she has been unable to attend school from January 2022. He also complained Y has not had the full provision set out in her EHCP and the Council has not adhered to statutory timescales about the EHCP and annual review documentation. Mr X also says the communication with the Council throughout this matter has been poor. Mr X says Y has missed education, Occupational therapy (OT) and Speech and Language Therapy (SALT) provision and the family have been put under considerable stress.

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What I have and have not investigated

2. I have investigated matters in this case from June 2021. The final section of this statement contains my reasons for not investigating the rest of the complaint. I reference events prior to this date for context in this matter.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)
8. I have exercised discretion to consider events in this complaint back to June 2021. I reference events prior to this for context in this matter. The Council did not issue its decision letter after the June 2021 annual review until January 2022. Mr X has pursued matters since this date.

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How I considered this complaint

9. I read Mr X’s complaint and spoke to him about it on the phone.
10. I considered information provided by Mr X and the Council.
11. Mr 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

12. 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.
13. 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.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.
15. The courts have established that if someone has or could have lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
16. 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)
17. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
18. 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)
19. Where a Council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
20. The Special Educational Needs and Disability Code states if a Council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
21. Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
22. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
23. 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.
24. 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)
25. 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)
26. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, Councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
28. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
29. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
30. We have issued guidance on how we expect Councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
31. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.

What happened

32. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
33. Y has special educational needs. She was initially provided with an EHCP in July 2019. Section F set out occupational therapy (OT) support and speech and language (SALT) support.
34. Y left mainstream school in September 2019 and moved to a specialist education provision, school A. Mr X removed Y from this placement in January 2020 due to safeguarding concerns.
35. In May 2020, a Council investigation concluded school A was not meeting Y’s needs.
36. The Council held an annual review in May 2020. This meeting confirmed the Council needed to update Y’s plan.
37. Mr X says the Council did not provide education to Y until she started at her new school, school B, in January 2021.
38. In March 2021, school B announced it would change its name and ownership.
39. The Council wrote to Mr X in April 2021 to inform him it had amended the placement in Y's EHCP after the May 2020 annual review, but it did not amend the plan.
40. School B held Y’s annual review in June 2021. No paperwork from the 2020 annual review or updates recommended had been provided. The review recommended more updates to Y’s plan.
41. In July 2021, school B announced it would be moving premises.
42. Mr X complained to the school in September 2021 about the lack of time out space, equipment, the noise of the new building and there was no transition. He said this impacted Y’s ability to engage with school.
43. In January 2022, Mr X decided not to send Y back to school B. School B held a meeting with Mr X and Y. School B agreed it would provide weekly OT and SALT sessions and send home worksheets for her to complete.
44. Mr X complained to the Council in the middle of January 2022. He complained the Council had not adhered to the EHCP timescales to inform him of the Council’s decisions after the annual reviews in May 2020 and June 2021. Mr X also complained about the poor communication and that school B was not suitable for Y.
45. The Council responded to Mr X’s complaint at the end of January 2022. The Council acknowledged it did not send a decision letter after the May 2020 annual review within the four weeks set out in the regulations. It sent this letter in April 2021. It admitted this frustrated Mr X’s right of appeal to the SEND tribunal. The Council also accepted it had not sent a decision letter to Mr X following the June 2021 annual review within the required four weeks. The Council confirmed communication had been challenging due to high staff turnover but assured Mr X it was recruiting new officers. The Council addressed Mr X’s concerns about school B’s ability to meet Y’s needs by offering him an urgent annual review.
46. The Council wrote to Mr X at the end of January 2022. It informed him it did not need to make any changes to Y’s plan following the June 2021 annual review and did not issue an updated EHCP. The Council set out Mr X’s appeal rights to the SEND tribunal if he disagreed with this decision.
47. School B held an urgent annual review in February 2022 as Mr X wanted a change of placement. The review went through the changes recommended in the last two annual reviews that the Council had not actioned. The meeting considered further changes needed to Y’s plan. The meeting also discussed other schools Mr X wanted to consider as he felt school B could not meet Y’s needs and she needed to move schools. School B stated it could meet need but said it would be difficult as Y’s parents did not feel it was the right setting. Mr X did not agree and requested a placement at school C.
48. The Council issued its decision to amend Y’s plan in March 2022. The Council issued a draft EHCP with some changes and the school placement section, section I, left blank.
49. The Council provided an update to its stage one complaint response at the end of March 2022. The response confirmed Y’s plan would be amended and issued. The Council stated school B was providing work, OT and SALT support. Mr X said this information was untrue and requested the Council escalate his complaint to stage two.
50. The Council sent Mr X several emails with updated final EHCP’s in April 2022 which continued to name school B. The first email the Council sent set out Mr X’s right of appeal to the SEND tribunal. Mr X responded each time and stated the Council had not updated the plan, he did not have the appropriate documentation sent with it setting out his right of appeal or the changes in the plan were wrong. The plan sent in the emails was dated March 2021. The Council confirmed it had consulted with school C.
51. The Council provided Mr X with its stage two response in May 2022. The response provided dates school B sent work for Y. The Council included in its response OT and SALT paperwork provided for the annual review in February 2022. It also included the OT and SALT provision log setting out the dates OT and SALT provision took place up until April 2022.
52. Mr X responded and stated the information the Council had provided was wrong. Mr X complained a worker who dealt with the majority of the case had left and passed the unfinished response to someone who did not understand the issues and had just sent the response out. Mr X repeated he had not received any work for Y, and she was not getting the therapy she needed. Mr X requested the complaint was escalated to stage three. The Council agreed the response was incomplete and said it would arrange a meeting.
53. School B met with Mr X at the end of June 2022. Mr X reported school B had admitted its failures and apologised. I have seen evidence of the meeting and school B sent a letter to Mr X acknowledging there had been issues with a lack of work for Y and concerns her needs were not being met. Mr X says school B verbally apologised in the meeting but I have not seen any evidence of a written apology.
54. Mr X chased the Council about school C in July 2022. He stated Y had a positive trial day and wanted to attend. The Council contacted school C who confirmed it could meet Y’s needs.
55. The OT and SALT service discharged Y in August 2022. Mr X was told the therapists had not been provided with authorisation for sessions for the following academic year. Mr X said he was unaware of this and wanted further information. I have not seen evidence this was responded to.
56. Mr X continued to contact the Council throughout August 2022 to request an update regarding his stage three request, Y’s school and her therapy. The Council responded at the end of August and said any issues about the education or therapy is school B’s responsibility. The Council also stated Mr X did not request his complaint was escalated to stage three.
57. Mr X contacted the Council again in September 2022. He stated Y had been due to start school C, who had offered her a place and she was keen to attend but the Council had delayed taking the request to a panel meeting for approval. Mr X stated Y had only received 90 mins of education per week for seven months and none was with a teacher. He also complained the EHCP was three years out of date. The Council confirmed school C was not an option for Y, as due to a critical Ofsted report a senior Council officer would not place anyone there for now.
58. Mr X contacted the Ombudsman in October 2022 to consider his case. The Ombudsman wrote to the Council for information. The Council then wrote to Mr X to say it would review his case at stage three and would arrange a meeting.
59. The Council met with Mr X in November 2022. The Council set out action points from the meeting which included the need for Mr X to provide medical evidence Y could not access school. The Council confirmed it would request an education other than at school (EOTAS) placement and it would arrange the OT and SALT provision. The Council then confirmed it would only consider EOTAS when Mr X had provided the medical evidence Y was not able to access education. Mr X responded to say she was fit for school but had not been when she left school B. He stated he could not get historic medical evidence.
60. The Council responded to Mr X’s stage three complaint in December 2022. The response confirmed the Council failed to adhere to statutory timescales. The Council offered Mr X £1200 to recognise its failure processing Y’s plan and Mr X’s time and trouble. The response confirmed the Council had experienced significant changes of staffing and it was taking steps to improve the service.
61. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to sort the EHCP and Y’s provision.
62. In response to my enquiries the Council stated it expected students to attend school and Mr X had removed Y from school. It stated school had been responsible for education and EHCP provision. The Council continued as Mr X did not provide medical evidence and requested a different school placement it did not consider EOTAS applied. The Council admitted Mr X had experienced delay throughout this case. The Council confirmed it should have taken attendance enforcement action.

My findings

Delay sending notification letters after annual reviews

63. It is clear from the documentation, and the Council has acknowledged, there have been significant delays in this case. The Council has not written to Mr X following the 2021 and 2022 annual reviews to explain if it would amend Y’s EHCP within the statutory timescales. Mr X received the notification letter following the 2021 review after he complained in 2022. The information in the letter was incorrect as the review had recommended Y’s plan was amended. The seven month wait delayed Mr X’s right of appeal to the tribunal until it sent the decision letter in January 2022. The Council has acknowledged this in its stage three investigation and offered a financial remedy. 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 and has caused Mr X distress and frustration.
64. While the financial remedy for not adhering to the statutory timescales is sufficient for Mr X's injustice, it does not address the issue of why the Council has not met the statutory requirements.
65. The Council issued its decision not to amend the EHCP in January 2022. This decision carried an appeal right for Mr X. We have exercised discretion to consider matters from January 2022 because although an appeal right was engaged, the Council also indicated it would arrange an urgent annual review. Given this, it was reasonable for Mr X to wait for that review rather than appeal at this stage.
66. The Council issued a final EHCP in April 2022. While Mr X claims this plan contains incorrect information, the final plan again engaged Mr X’s appeal rights to the SEND tribunal. The Council continued to name school B in the EHCP and it had confirmed it could meet Y’s needs. Mr X disagreed but the way for him to challenge this was by appealing to the SEND tribunal. The courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the tribunal.

Alternative provision and missed education and therapies

67. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was not attending school in January 2022. It should have ensured Y received education provision from this time or taken steps to secure her attendance. The Council has done neither. Information in this case is contradictory as I have seen correspondence saying no education had been provided or Y received 90 minutes per week. Education is meant to be full time unless this is not accessible to an individual. I have not seen any assessment or documentation explaining why Y received only 90 minutes, if any, per week from January 2022 This is fault and Y has missed education for 13 months. As explained at paragraph 15, once an appeal right is engaged we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education for three months from January 2022 until the Final EHCP was issued in April 2022.
68. The Council’s response to the Ombudsman sets out its expectations that children attend school and says Mr X chose to remove Y from school. The Ombudsman expects Council’s to evidence strategies being used to re-engage children back to school. The Council has not evidenced it has done this so it is reasonable to assume it knew Y would not be attending and accepted the reasons why. The Council’s failure to ensure Y received education provision from January to April 2022 is fault. Y has missed out on education for 13 months. But, as detailed above, we can only remedy missed education for three months.
69. It appears from the complaint correspondence, and in its response to our enquiries, the Council has fundamentally misunderstood its legal duties to arrange suitable education in these circumstances. The Council cannot delegate its duty to arrange suitable education for Y to a school.
70. 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.
71. The Council did not ensure Y was provided with an education suitable to her ability. This is fault and has led to Y missing out on education.
72. I have seen a log of when therapy happened up until April 2022 that school B arranged. I am satisfied Y received the OT and SALT provision she was due to receive from January 2022 until April 2022. We cannot consider therapy provision beyond April 2022 as this is inextricably linked to matters Mr X could have appealed to the SEND tribunal. Mr X could have appealed the placement, where the provision would be delivered, as he disagreed that school was suitable.

Delays

73. It is clear from documentation, and the Council has acknowledged, communication with it has been difficult. Mr X has experienced delays throughout this case. The Council has accepted the delays and offered Mr X a payment in recognition of this.
74. It took for the Ombudsman to write to the Council to confirm its position regarding the complaint and for it to start its stage three investigation. This is fault and Mr X was frustrated by this delay. Our intervention should not have been necessary.
75. 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.
76. 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.
77. 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.
78. The Council did not provide any suitable education from January 2022. Y missed 13 months of education. However due to Mr X’s appear rights being engaged in April 2022, we can only consider this until April 2022. The Council not providing suitable education is fault and Y has missed out on suitable education.

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Agreed action

79. To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed take the following action within 4 weeks of my final decision:
• Apologise to Mr X and Y for not ensuring Y was provided with appropriate education and for the delays in the EHCP and complaints process.
• In addition to the money offered in the stage three complaint response for the EHCP paperwork delays after the annual reviews and time and trouble, pay Mr X £900 for not providing education from January 2022 until April 2022. This money should be used for Y’s benefit.
• Issue a briefing to ensure staff are aware of the Councils statutory obligation and those of the school as detailed in the Education Act 1996 to ensure a child receives a suitable education if they are unable to attend school.
• Remind all relevant staff of the need to ensure all complaints complete the complaint process fully and requests for escalation to the next stage of the process are actioned without delay.
80. 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 decisions made to maintain, amend or cease EHCP’s following reviews are issued within the statutory timescales.
• Review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
81. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

82. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X and Y.

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Parts of the complaint that I did not investigate

I have not investigated any matters in this case prior to June 2021. This is when the annual review was held but Mr X did not receive the paperwork for until January 2022. I will not investigate matter before June 2021 as I have seen no good reason Mr X could not have complained to us sooner.

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Investigator's decision on behalf of the Ombudsman