Summary: The complainant (Ms X) said the Council failed to provide education to her son (Y) who was permanently excluded from his school in line with his Education Health and Care Plan (EHCP). She said the Council’s communication with her was unsatisfactory and the Council failed to address her request for Y’s needs re-assessment. We found fault with the Council within all the issues raised in this complaint. We also found fault with the Council for its failure to carry out Annual Reviews of Y’s EHCP. These faults caused Ms X injustice. The Council agreed to apologise, make payments for Ms X, carry out a review of Y’s EHCP and provide us with the details of its monitoring system for Annual Reviews of children who are out of school.

The complaint

1. Ms X says the Council failed by:
1. Not providing education to Y in accordance with his EHC plan;
2. Inadequate communication with her;
3. Not addressing Ms X’s request for Y’s EHC needs re-assessment.
2. Ms X says the Council’s failings caused:
• Y - loss of education and deterioration of his mental health;
• Ms X - distress, frustration, negative impact on her work and family finances. She had to stop working to look after Y, lost free school meals which Y used to receive at school and had extra expenses to organise activities for Y.

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What I have and have not investigated

3. Ms X complained to us in October 2022. I decided to investigate what happened till the end of December 2022 as the events she complained about continued until then. The Council knew about Ms X’s continuing concerns and had an opportunity to respond to them. In January 2023 the situation with Y’s education changed and any potential concerns would need to be addressed by the Council first.
4. Although Ms X did not specifically raise the issue of Y’s Annual Reviews in her complaint, when talking to me she mentioned the Council failed to review Y’s EHCP since he was permanently excluded. Looking into the Council’s actions when performing its duties under part three of Children and Families Act 2014 would not, therefore, be complete without looking at this process. Besides when complaining about the Council’s failing to re-assess Y, Ms X made it clear she was unhappy about the content of Y’s EHCP. Annual Reviews can be a way of addressing parental concerns about their children’s EHCP. When looking at Y’s education and how the Council responded to Ms X’s request for a re-assessment of Y’s needs, it was important also to check if Ms X had an opportunity to formally express her concerns and was given appeal rights to challenge the Council’s decisions. In my enquiries I asked the Council to send me information and documents about Annual Reviews of Y’s EHCP. This gave the Council a chance to investigate and reply.

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The Ombudsman’s role and powers

5. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
8. 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

9. I spoke with Ms X and considered the information she provided.
10. I made enquiries with the Council and considered the information it provided.
11. I reviewed the Ombudsman’s ‘Principles of good administrative practice’ issued in December 2018.
12. Ms 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

Legal and administrative background

Provision of education

13. 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.
14. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
15. 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’)

Delivery of special educational provision

16. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
17. 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)
18. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

EHC needs re-assessment

19. Councils must secure re-assessment of the child’s educational, health care and social care needs if requested by their parent unless:
• it has carried out an assessment or re-assessment within the period of six months prior to that request, or
• it is not necessary for the authority to make a further assessment. (Children and Families Act 2014 section 44(2), Special Educational Needs and Disability Regulations 2014 regulation 24)
20. 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.

Annual Reviews

21. The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHCP at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• 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;
• Where a council proposes to amend an EHC plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHCP as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHCP;
• In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)

What happened

Background

22. Y has developmental delay, cognitive impairment, behavioural problems, sleep disturbances and self-harming tendencies.
23. Y has had an EHCP since 2016.
24. The Council carried out Y’s last Annual Review in November 2020. Following this review the Council issued Y’s final EHCP in July 2021, naming a state funded special school for children with severe learning difficulties (the School) for him. Y’s EHCP was informed by an Educational Psychologist’s (EP) report of November 2018.

October 2021 to May 2022

25. In the beginning of October 2021 the School permanently excluded Y. A few days later Ms X told the Council what had happened.
26. Nine days after the permanent exclusion the Council made a referral for Y to a specialist tutoring provider (Provider 1).
27. At this stage Ms X asked the Council to amend Y’s EHCP and provided a list of amendments. Y’s EHC Coordinator told Ms X she would present her request to the panel.
28. Y started tutoring sessions with Provider 1 in the beginning of November. The Council booked for Y 15 hours of tutoring per week. In May 2022 Y received just over 12 hours of tutoring. After the incident between Y and his tutor in the third week of May Provider 1 stopped delivering tutoring sessions to Y.
29. In the beginning of January 2022 Ms X sent the Council a list of schools she wanted to be consulted as potential placements for Y. After getting the Council’s update on school consultations in mid-March, Ms X:
• explained she was not looking for residential placements;
• asked for Y’s EHC needs re-assessment;
• provided an update on tutoring as not working especially well;
• complained about the Council’s communication with her.
30. A month later Ms X asked for an update on Y’s re-assessment and the school consultations. She also asked for the information on the complaints’ process.
31. The Council told Ms X Y’s EHC Coordinator was leaving and due to the service restructuring Y’s case would be passed on to the Provisions Team. Ms X asked for the Provisions Manager’s contact details, explaining Y had been out of school for a long time. There is no record of the Council’s response to this communication.
32. From the beginning of October 2021 till the end of February 2022 the Council sent consultation letters to nine special schools – maintained and independent. In April there were seven further consultations.

June 2022 to December 2022

33. At the end of June Ms X complained to the Council. She said:
• Special educational needs (SEN) service for Y had been unacceptable;
• Y was not receiving any home tutoring;
• The Council failed to communicate about her request for to re-assess Y’s needs;
• Staying at home all the time was affecting Y’s mental health.
34. In June and July Ms X had further communication with the Council about the school consultations. After unsuccessful chasing up the response to her correspondence from the beginning of July, in the beginning of September Ms X lodged her stage two complaint, raising the issues of:
• No responses to her emails despite the Council’s commitment to contact her within 15 to 20 days;
• Multiple changes of SEN officers for Y;
• No educational provision for Y for nearly a year.
35. Three days after Ms X’s second complaint the Council responded to her stage one complaint, upholding it and providing contact details of Y’s EHC Coordinator. The Council said:
• Following his permanent exclusion Y was receiving tutoring from the beginning of November 2021 till May 2022, but not in June and July for which the Council apologised;
• The Council would prioritise making arrangements for alternative educational provision for Y;
• Y’s EHC Coordinator would contact Ms X within seven days to discuss any queries and concerns about Y’s EHCP and school consultations.
36. Two weeks later Ms X asked for her complaint to be passed to the Director as she still was waiting for the response from Y’s EHC Coordinator or her manager. In her email Ms X:
• suggested Y was discriminated against as his behaviour stemmed from his medical condition;
• queried the alternative education provided to Y in November 2021 – May 2022 as she said most days the average time of provision was five to thirty minutes out of three allocated hours. Ms X tried to tell the Council of this situation at the time;
• pointed out the impact of Y’s not attending school on her finances as she had to stop working to look after Y and he missed free school meals.
37. Not satisfied with the Council’s stage two response from mid-October Ms X complained to us.
38. From October till the end of November 2022 the Council sent 24 consultation letters to special schools, including the ones in other local authorities. Some of the letters were reconsultations with the schools contacted previously. No school offered a place for Y.
39. In December the Council communicated with Ms X about another alternative provider of education (Provider 2). Y started receiving some tutoring in January 2023.
40. In its response to my enquiries the Council stated Ms X’s request for Y’s needs re-assessment was considered at the panel meeting in the second week of January 2023. Ms X confirmed the Council decided to carry out the re-assessment as she received two letters from the therapists who declined to take part.

Analysis

Provision of education

41. Based on the available evidence I consider the Council acted properly once it found out about Y’s permanent exclusion. The Council referred Y to Provider 1 without delay and tuition started four weeks after the exclusion. The Council commissioned 15 hours of tutoring per week which was reasonable in the circumstances.
42. During our telephone conversation Ms X questioned suitability of the Provider 1’s tuition for Y. She also raised this issue with the Council in mid-March 2022 when asking for Y’s EHC needs re-assessment and when complaining in September 2022. Although Provider 1’s tutoring reports showed Y’s varied engagement with teaching, some of the sessions were clearly successful. Despite various difficulties the tutoring continued till the end of May 2022. There is not enough evidence to decide the alternative education arranged for Y in the first few months after his permanent exclusion was unsuitable.
43. For the reasons explained above I consider the Council was not at fault when arranging alternative education for Y from November 2021 to the end of May 2022.
44. After Provider 1 stopped delivering tuition for Y in May 2022, the Council failed to make different arrangements for Y’s education when he was out of school. Only in January 2023 the Council commissioned another tutoring provider for Y. Lack of any educational provision for Y from June 2022 to the end of December 2022 is fault.
45. This fault caused injustice to:
• Y – he missed education and learning routine which was bound to have negative impact on his mental health;
• Ms X – negative impact on her work and financial situation, as she had to stop working to look after Y and had extra expenses in trying to keep him busy.

Delivery of special educational provision

46. As explained under paragraphs 16 to 18 of this decision, the Council has a duty to secure SEP identified in the child’s EHCP. All SEP included in Y’s EHCP had to be delivered during provision of education. Therefore absence of SEP for Y was a result of him not receiving education from June to December 2022. This is fault, which is inseparable from the fault described under paragraph 44.

EHC needs re-assessment

47. Ms X asked for a re-assessment of Y’s EHC needs in mid-March 2022. The Council had six weeks to consider this request and decide if:
• it would carry out a re-assessment, or
• it was not necessary to make a further assessment.
48. We cannot criticise the Council for not carrying out Y’s needs re-assessment but its failure to consider Ms X’s request within six weeks is fault.
49. The Council’s failing to consider Ms X’s request caused her injustice as it created uncertainty about the Council’s position. Additionally it deprived Ms X of the possibility to challenge the Council’s decision.

Annual Reviews

50. The Council failed to carry out Y’s Annual Reviews in November 2021 and November 2022. This is fault.
51. Reviews of Y’s EHCP in the autumn of 2021 and 2022 were particularly important for the following reasons:
• Change in Y’s educational arrangements caused by his permanent exclusion in the beginning of October 2021;
• Lack of an EP advice since 2018;
• Y’s difficulties with accessing tutoring;
• The Council’s difficulties in identifying a suitable school placement for Y.
52. The Council’s failure to carry out Annual Reviews of Y’s EHCP caused injustice to him and Ms X:
• Y – lack of monitoring of his progress towards his outcomes, possibly changing the outcomes and updating the plan which would give a more accurate picture of his needs and provisions needed to meet them;
• Ms X – lack of possibility to request amendments to Y’s EHCP, as she considered his plan was outdated. Ms X was deprived of the option to challenge the Council’s position by appealing. This caused her frustration and distress.

Communication with parents

53. When communicating with Ms X the Council failed to follow the rules of good administrative practice by being service user focused, which is fault. This happened when the Council failed to:
• Respond to Ms X’s communications, including complaints;
• Keep its commitments, including the ones undertaken as part of the complaint process.
54. The Council’s fault caused Ms X injustice:
• Frustration and distress;
• Undermined confidence in the Special Educational Needs and Disability (SEND) team;
• Delays in progressing arrangements for Y’s support.

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Agreed action

55. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Ms X and Y for the injustice caused to them by the faults identified;
• pay Ms X £600 a month to recognise the loss of Y’s education and lack of special educational provisions. The total the Council should pay is £3,000 for the period of seven months from June 2022 till the end of December 2022, excluding two months for summer holidays, autumn half-term and the Christmas break;
• pay Ms X £300 to recognise uncertainty caused to her by the Council’s delay in considering her request for Y’s needs re-assessment;
• pay Ms X £1,200 to recognise injustice caused by missed Annual Reviews of Y’s EHCP;
• pay Ms X £500 to recognise distress caused to her by the Council’s failings within its complaint process and to communicate with her effectively.
• carry out review of Y’s EHCP, arranging the review meeting within four weeks from the date of this decision and aiming at completing the whole process within 12 weeks from the date of the review meeting. The Council may choose to combine review of Y’s EHCP within Y’s needs re-assessment, but this should not affect the Council’s timescales for issuing a final EHCP following Y’s needs re-assessment 14 weeks from the date of the Council’s decision about the re-assessment.

The Council will provide the evidence the above has happened.

56. We also recommend the Council within three months of the final decision provide us with the details of the Annual Reviews monitoring system in place for the children who are out of school.

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Final decision

57. I uphold this complaint. I found fault with the Council for Y’s lack of education, non-delivery of special educational provisions, failing to carry out Annual Reviews of Y’s EHCP, failing to consider Ms X’s request to re-assess Y’s needs and failings to communicate effectively with Ms X. The Council has accepted my recommendations so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman