Summary: The complainant alleged that the Council had delayed in issuing her son’s Education, Health and Care Plan, had failed to provide alternative education when he was out of school on medical grounds and failed to carry out an annual review properly. We find that the Council has been at fault causing the complainant and her son an injustice. We have recommended ways to remedy this, which the Council has accepted. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, who I refer to as Miss X, complained that:
1. the Council delayed in issuing a final Education, Health and Care (EHC) Plan for her son (Child Y) between December 2019 to February 2021;
2. the Council failed to provide suitable alternative education since October 2020 when Child Y was no longer able to attend school for medical reasons. Child Y also did not receive free school meals as he would have done had he been able to attend school; and
3. the Council did not carry out the annual review of March 2022 properly and there was a delay in issuing a final amended EHC Plan (May 2022). This final EHC Plan is now the subject of a Special Educational Needs and Disability (SEND) Tribunal appeal, due to be heard this month.
2. As a result, Miss X has suffered avoidable distress and frustration, she had to give up work to care for Child Y and he has missed out on receiving fulltime education.

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What I have and have not investigated

3. I am investigating matters from December 2019 to May 2022. I have exercised the Ombudsman’s discretion to look at events since this date, even though Miss X has not made a complaint to us within 12 months of when she first realised something had gone wrong, as required. This is because she has explained why there was a delay and because the delays by the Council will have had an adverse impact on Child Y’s education.
4. I am not investigating matters which are inextricably linked to the current SEND Tribunal appeal. I am also not looking into any complaints about Children’s Services.

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The Ombudsman’s role and powers

5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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.
8. 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)
9. 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

10. I have spoken to Miss X and considered the information she provided in support of her complaint.
11. I have considered the information the Council has provided in response to my enquiries.
12. I issued a draft decision statement to the Council and to Miss X and took into account their further comments before reaching my final decision.
13. 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 the final statement with Ofsted.

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What I found

Relevant guidance

Human Rights 1998-Protocol 1, Article 2 – Right to education

14. This protocol protects the right to an effective education. The courts have ruled that the right to education relates to the education system that already exists. It does not require the provision of any specific type of education.
15. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. We may find fault where a council cannot evidence it had due regard to a person’s human rights.

Special Educational Needs

16. A child with special educational needs may have an Education, Health and Care Plan (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. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
17. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

18. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
19. The professionals consulted have a maximum of six weeks to provide the advice.

Appeal rights

20. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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

21. 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.
22. 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.
23. A council should provide a list of pupils who will require a review that term to all headteachers. Normally, a school/educational establishment should arrange the review and send out invitations and seek advice from those invited. Information should be available two weeks prior to the review.
24. 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 must do that “without delay”. A recent court case stated that it should take twelve weeks to issue a final amended EHC Plan after the review meeting.

Children out of school because of medical needs

25. Section 19 (s19) 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”.
26. 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.
27. 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.
28. 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
29. 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)
30. The courts have considered the circumstances where s19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under s19 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)

The Ombudsman’s Focus Report-Out of school, out of mind?

31. We issued a Focus Report in July 2022, highlighting councils’ responsibilities to children out of school. Councils have a duty to arrange alternative education, not the school a child attends. Councils need a way to identify when their duty to provide alternative education has arisen. Some councils will have arrangements with schools to carry out assessments or arrange alternative education. However, responsibility rests with the council.

Legislative changes due to COVID-19

32. On 1 May 2020, some aspects of the law on EHC needs assessments and plans changed temporarily due to the significant extra pressure put on councils because of COVID-19.
33. To recognise this, the government implemented temporary changes until 25 September 2020 relating to the timescales for EHC needs assessment and plan processes. The change meant that, where a council decided it was necessary to issue an EHC plan, following an EHC needs assessment, but the incidence or transmission of COVID-19 made it impractical to do so within the 20 weeks, they were to discharge the duty as soon as practicable. A council also had to use its ‘best endeavours’ to provide the provision set out in an EHC Plan.

Findings

Complaint (a)-delays in issuing an EHC Plan

34. The school Child Y attended, School D, is a voluntary-aided primary school. When at School D, Child Y was identified as working well below his chronological age and had difficulties in understanding and retaining information. Child Y also had and still has mobility problems, resulting in Child Y requiring significant medical interventions, which causes him stress and severe anxiety.
35. In December 2019, Child Y’s primary school requested the Council carry out an EHC needs assessment. The Council says that the request was uploaded onto its system four weeks later. The Council refused the assessment in late June 2020, (some five months beyond the statutory timescale of six weeks from receipt of the request).
36. The Council reversed that decision in July 2020 and agreed to assess Child Y. The Council received professional advice by the end of August 2020. In October 2020 the Council issued a draft EHC Plan. Miss X commented on the draft within three weeks. There then followed three separate meetings between the Council and Miss X. Miss X says that there were further drafts issued until the final EHC Plan was issued on 22 February 2021.
37. The Council should have issued a final EHC Plan within 20 weeks from the assessment request. My view is that the Council has delayed at each stage of the process. It delayed initially in giving its decision on whether to assess or not. That decision should have been made by the end of January 2020, not in June 2020.
38. The Council quickly reversed its decision in July 2020 and agreed to assess. It should then have taken 14 weeks to issue the final EHC Plan, approximately by mid-November 2020. Instead, the Council issued a final EHC Plan in February 2021, some four months beyond the statutory timescale.
39. I recognise that the Council might have been trying to reach agreement with Miss X, which explains the delay between the draft and final EHC Plan stages. The Council also says that it has been difficult to recruit special educational needs officers. But I consider that, if the Council had acted within the statutory timescales, and had agreed to assess in February 2020, a final EHC Plan should have been issued by around the summer term of 2020 (taking account of the Covid-19 relaxation of the rules). So, I consider that the Council has been at fault because it delayed in issuing the final EHC Plan.
40. The final EHC Plan of February 2021 named a special school, starting in September 2021, which Miss X was led to believe would be suitable for Child Y. Miss X did not consider it was necessary to appeal the EHC Plan because the school sounded appropriate.
41. What injustice has been caused by the Council’s delay in issuing a final EHC Plan? Miss X has experienced avoidable frustration and distress and, had she had a final EHC Plan by the summer of 2020, when Child Y was still at School D, it might have been possible for there to have been greater support provided for Child Y at that school. It is also the case that Child Y did not have a final EHC Plan during the Covid-19 period of 2020. Had he had this, the Council would have had to consider its ‘best endeavours’ to ensure Child Y received the required provision set out in his EHC Plan.

Complaint (b)-failure to provide alternative education when Child Y was medically unfit to attend school since October 2020

42. In 2020/2021, Child Y was in his last year at School D. Miss X says that, following a safeguarding incident in October 2020, School D asked Child Y to leave. It agreed to provide alternative education. But Miss X says this consisted mainly of equine therapy and farm therapy. Miss X says that Child Y received no formal education. Miss X says Child Y’s development was adversely affected and he fell behind academically and became isolated.
43. Miss X says that the Council provided no overview of the alternative education or checked its suitability. Miss X says that the Council was aware that Child Y was out of school because, in November 2020, she complained directly to the Council about the safeguarding incident. The Council says that it now realises that the provision at School D was not right for Child Y given what is now known about his complex needs, particularly his health needs when facing the possibility of major surgery. The Council also accepts that it should have ensured Child Y received the provision set out in his EHC Plan.
44. In September 2021, Child Y started at a specialist school, School C. After two visits to this school by Child Y, Miss X says that the school said that it could not meet his needs and it took him off the school roll. Miss X considers the Council should have provided alternative education at this point. The Council did, however, start to consult other schools.
45. In November 2021, Child Y started at another specialist school, School E, on a part-time basis.
46. I am satisfied that the Council was aware of Child Y not being in school by late November 2021, if not before. In addition, the Council should have a system whereby schools refer pupils, who are out of school, to it. Even if a child is registered on a school roll, but is not attending, the Council still has the responsibility to assess why the pupil is out of school and ensure that, if alternative education should be provided, this is suitable and fulltime (as long as the child’s health needs allow this). If the Council expects a school to provide this alternative education, the Council should assess that it is suitable and, if not, the Council should step in and provide this.
47. My view is that the Council has failed to ensure that Child Y was receiving suitable, fulltime education between November 2020 to July 2021, eight school months and failed to ensure Child Y was receiving the provision set out in his EHC Plan. I have not included the period of September to November 2021 because Child Y started at another school promptly when the placement at School C broke down.
48. What injustice has been caused? Miss X says that Child Y is a bright child, wants to learn and has plans to go to university. Missing out on appropriate, fulltime education will have adversely affected his academic prospects. Miss X has also had to give up work to look after Child Y because he was not in school. Child Y has also missed out on free school meals.

Complaint (c)-The Council did not carry out the annual review of March 2022 properly and there was a delay in issuing an amended EHC Plan

49. When responding to the draft statement, Miss X raised a concern that there was no review in November 2021, as there should have been. I have not investigated this aspect because it did not form part of the original complaint summary. So, I cannot comment.
50. The Council should have ensured that an annual review took place by 21 February 2022. The review was not held until 22 March. Miss X raised a complaint about this review, saying the EHC Plan was out of date, there were no updated reports from a variety of professionals involved with Child Y (for example, orthopaedic, physiotherapy, Occupational Therapy (OT) and Speech and Language Therapy (SALT)). It seems that the Council agreed to ask for updated reports from these professionals and had wanted to arrange a further review once these were obtained. However, Miss X objected to any further delay and asked the Council to issue a final amended EHC Plan.
51. In May 2022 the Council issued a final amended EHC Plan.
52. My view is that the Council should have ensured School E held a review by 21 February 2022 and the fact it did not is fault.
53. It also seems the review of March 2022 did not obtain information from the professionals involved with Child Y. However, this was the responsibility of School E. I also consider the Council issued a final EHC Plan within a reasonable time. So, my view is that the Council has not been at fault.
54. Miss X has now appealed this EHC Plan and is awaiting the SEND Tribunal decision. Any complaints about the inadequacy of the final amended EHC Plan are matters which will be considered by the SEND Tribunal.

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Agreed actions

55. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position which they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
56. In this case, the Council has agreed to do the following within one month of the final statement:
1. Child Y was not receiving suitable education for eight school months between November 2020 to July 2021. I consider that the Council should make a payment of £500 per month to Miss X for her to use to Child Y’s educational benefit (a total of £4,000). I am not recommending the highest amount as I have taken into account that some therapy/activities were provided by School D;
2. the Council should pay Miss X for the cost of the free school meals, which Child Y would have received had he been at School D, during the above period. Miss X has provided proof that he was eligible; and
3. the Council should pay £750 for Miss X’s avoidable distress, frustration and lost opportunity; and
4. send a copy of the final statement to the Director of Education.
57. In terms of service improvements, the Council will within three months of the final statement:
1. evidence how it tells schools/educational establishments that an annual review for a pupil is required that term. If it does not tell schools/educational establishments this, the Council should arrange to do so to ensure that reviews are carried out on time;
2. evidence how it ensures schools/educational establishments refers to it those pupils out of school; and
3. the Council will consider whether it needs to review its policy on alternative education (s19), taking into consideration the key lessons from the Ombudsman’s recent Focus Report. If the Council considers its policy requires amending, this should be completed within three months of the final statement and sent to us.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. There has been fault causing an injustice. The Council has agreed the remedy. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman