Summary: Ms and Mr X complained the Council failed to ensure their child D received a suitable education or had their special educational needs met. There was fault in how the Council ensured D received the special educational provision set out in their Education, Health, and Care plan, and reviewed the plan. This meant D did not receive suitable education or support for their special educational needs. This also caused avoidable distress for D, Ms X, and Mr X, and avoidable time and trouble for Ms and Mr X. The Council agreed to apologise, ensure suitable education and special educational support is in place for D without delay, and pay a financial remedy. It will also ensure it considers our findings as part of its SEND Improvement Plan.

The complaint

1. Ms and Mr X complain about how the Council dealt with their child D’s Education, Health, and Care (EHC) plan from 2020 to 2022. They say the Council failed to:
• ensure D received the provision set out in their EHC plan, including after the First-tier Tribunal (Special Educational Needs and Disability) made orders about the plan’s content in 2021;
• properly review the EHC plan, seek the necessary assessments for review, or follow statutory review timescales;
• provide suitable alternative education when D could not attend school, or could only attend part-time;
• repay Ms and Mr X in good time for alternative education they arranged for D; and
• communicate with Ms and Mr X properly or consider and respond to their complaint about these issues.
2. Ms and Mrs X say these issues have:
• worsened D’s existing mental health problems and caused them to regress. They are no longer attending school at all and are without suitable alternative education;
• meant Ms X had to reduce her working hours due to D being out of school, which has impacted the family financially;
• caused Ms and Mr X distress, time, and trouble, and impacted their mental health;
• caused distress to D’s two siblings, who also have special educational needs, because of the impact on their parents’ time and resources;
• meant Ms and Mr X had to use their own money to pay for educational tools and outings, and private assessments of D by relevant professionals.
3. Ms and Mr X want the Council to:
• issue a new EHC plan to meet D’s needs and ensure they receive the provision in this plan. They are pursuing this via the SEND Tribunal;
• provide suitable alternative education for D while they continue to be out of full-time education;
• properly communicate with the family about D’s education and SEN provision in future, and respond in good time;
• meet its duties to D in future, within statutory timescales;
• provide compensation to the family for their various financial losses and the injustice caused to them; and
• review its policies and processes to ensure it adheres to statutory timescales, improves SEN record-keeping, and improves how it communicates with SEN families.

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What I have and have not investigated

4. Ms and Mr X complained about the Council’s actions from 2020 to 2022. The Council issued an EHC plan for D in February 2020, and then again in July 2020. Issues with D’s attendance at school began in late 2020.
5. Ms and Mr X appealed to the First-tier Tribunal (Special Educational Needs and Disability) about the content of the July 2020 EHC plan. The SEND Tribunal is an independent expert body whose decisions are binding on the Council. The law says we cannot investigate an issue which has already been the subject of a tribunal appeal.
6. The Tribunal ordered the Council to amend the plan in September 2021, at the same time as D started secondary school. As the Tribunal has already considered the issues raised with the July 2020 plan, I cannot now reconsider this.
7. Furthermore, the law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to do so. Ms and Mr X complained to the Council in April 2022 and brought their complaint to the Ombudsman in January 2023. I have decided there are good reasons to investigate what happened after September 2021, when D started secondary school and the SEND Tribunal issued its outcome. The family was consistently raising concerns after this point and had difficult personal circumstances which meant it took them longer to complain. However, I am satisfied Ms and Mr X could have complained about events before September 2021 earlier and there are no good reasons to investigate those earlier events now.
8. The Council issued a reviewed final EHC plan for D in November 2022. At the time of our decision, the family were appealing the content of that plan to the SEND Tribunal. Therefore, although I accept there are ongoing issues with D’s EHC plan, I cannot consider any issues with the content of the latest November 2022 plan.
9. The Ombudsman also cannot investigate any matters which are closely linked to issues which are the subject of a tribunal appeal. Where a child is out of school because the provision set out in their plan or school named in the plan does not meet their needs, we cannot seek a remedy for any missed education after a final EHC plan was issued and could be appealed. The missed education is closely linked to the issue appealed about, namely the content of the plan, including the school named in the plan. In this case, this means I cannot consider or provide a remedy for education D has missed since the Council issued the latest November 2022 plan.

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The Ombudsman’s role and powers

10. 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)
11. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. There may be circumstances where we decide service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
12. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
13. 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)
14. 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
15. 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.
16. 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

17. I considered:
• information provided by Ms and Mr X and discussed the complaint with Ms X;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
18. Ms X, Mr X, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
19. 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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What I found

Education Health and Care (EHC) plans

20. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
21. 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, reviews, and re-assessments, and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
22. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints where support set out in the EHC plan has not been provided, or where there have been delays in the process.
23. The council has a duty to secure the specified special educational provision in an EHC plan 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)

EHC plan reviews

24. Councils must review EHC Plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186)
25. A council can require a school to convene and hold an annual review meeting on its behalf. (SEND Code paragraphs 6.56 and 9.173)
26. Advice and information should be sought from those invited to the review meeting in advance and shared with all attendees at least two weeks before the meeting. The following should be invited to the meeting:
• the child’s parent(s)/guardian(s);
• a representative from the child’s school;
• a SEN officer from the Council;
• a health service representative;
• a social care representative from the Council; and
• other individuals relevant to the review, such as youth offending teams and job coaches where relevant.

(SEND Code paragraph 9.176)

27. Within four weeks of a review meeting, a council must notify the child’s parent(s)/ guardian(s) of its decision to maintain, amend or discontinue the EHC plan. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
28. Where a council proposes to amend an EHC plan, it should start the process of amendment “without delay”. The law says it must send the child’s parent(s)/guardian(s) 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. (SEND Regulations 2014 Section 22(2), and SEND Code paragraphs 9.176 and 9.194)
29. Following comments from the child’s parent(s)/guardian(s), if a council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parent(s)/guardian(s). (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)

Appeal rights and the SEND Tribunal

30. Parent(s)/guardian(s) 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 amended EHC plan. The right of appeal is only engaged when the Council issues the final amended plan. (SEND Regulations 2014 section 32)
31. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is closely 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).
32. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)

Alternative educational provision for a child out of school

33. 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. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
34. 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)
35. The relevant statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs, January 2013’ says councils should provide education to those out of school as soon as it is clear they will be away from school for 15 days or more, whether consecutive or cumulative. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
36. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
37. The education provided by a 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)
38. 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. (2013 Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The Human Rights Act

39. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
40. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
41. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

42. In October 2020, D had just started year 6 and stopped attending school. Around the same time, Ms and Mr X appealed to the SEND Tribunal about the content of D’s latest EHC plan, issued in July 2020.
43. In May 2021 it was agreed via the SEND Tribunal process that D should start at School A, a special school. It was decided they should have a phased transition into full-time attendance before they went on roll at the school, ahead of the following year 7 school year. The Tribunal decided it would reconsider the appeal about D’s EHC plan after the start of the new school year.
44. In September 2021, D started on roll in year 7 at School A. The SEND Tribunal ordered changes to D’s EHC plan. It recorded that following last term’s transition period, D was close to attending full-time. A month later, the Council issued an amended EHC plan in response to the Tribunal’s order.
45. In February 2022, the Council wrote to all families at School A. It told them that following quality assurance visits to the school, it had decided to carry out work with the school to ensure it was meeting the independent school standards.
46. A month later Ms and Mr X raised concerns with the Council. They said:
• School A was not delivering D’s EHC plan. They said they had been raising these concerns with the school since the start of the school year; and
• because D’s EHC plan was not in place, D had only attended part-time since September and had mostly been unable to enter the classroom. They said D had been out of school altogether for a couple of weeks. They asked the Council to consider its duties to provide alternative education to D.
47. Around this time, School A had arranged an annual EHC plan review for D, but Ms and Mr X asked it to postpone this for a couple of months. They wanted clarity on the wider issues within the school and whether it would stay open and could meet D’s needs.
48. Over the following month, Ms and Mr X:
• repeatedly sought information from School A about whether it could meet D’s needs and deliver the EHC plan. They copied the Council into these communications;
• told the Council D had not been provided with one-to-one support, or IT equipment and software, specified in their EHC plan;
• asked the Council more than once to arrange alternative education for D while they were out of school; and
• asked the Council to reimburse them for maths and science tutoring they had paid for to supplement D’s missed education. The Council said it would do this and asked them to send evidence of the payments, which they did. It also said it would look at options for English tutoring.
49. In late-April 2022, Ms and Mr X complained to the Council. The Council corresponded with them about some of the issues raised but did not provide a complaint response, so they escalated their complaint to Stage 2.
50. At the start of the 2022 summer term, School A arranged one-to-one support for D, which ran until the end of the school year. It also carried out an annual EHC plan review, which the Council attended. A week later the Council asked School A to provide its report of the review.
51. Five weeks after the review, Ms and Mr X wrote to the Council to confirm there had been no progress since the review and their concerns remained the same. They said there was still no alternative education in place for D.
52. A month later, ten weeks after the review, School A sent the review report to the Council. Around the same time, the Council told Ms and Mr X it did not know when it would be able to respond to their Stage 2 complaint due to staff shortages. It apologised for the delay and told them they could bring their complaint to the Ombudsman.
53. In September 2022, D started year 8 and was still not attending school full-time. They were still receiving maths and science tutoring arranged by their parents. Ms and Mr X had continued to chase School A and the Council about their concerns.
54. In late-September 2022, the Council told the family it planned to amend D’s EHC plan following the May review and issued an amended draft. Shortly after this:
• the Council told Ms and Mr X it still did not have anyone available to look at their Stage 2 complaint from April, and apologised for this; and
• over five months after Ms and Mr X provided evidence of their tutoring payments, the Council reimbursed them for this. It apologised for the delay.
55. In November 2022, over six months after the review meeting, the Council issued a final amended EHC plan for D. A month after this, D stopped attending school altogether having been signed off by a medical professional.
56. In January 2023, Ms and Mr X came to the Ombudsman. They also appealed to the SEND Tribunal shortly afterwards about the content of the November 2022 EHC plan. They were of the view School A could not meet D’s needs. At the time of our decision, a Tribunal hearing was scheduled for January 2024.

My findings

Compliance with September 2021 SEND Tribunal order

57. When the SEND Tribunal considered D’s case in September 2021, it was satisfied agreement had been reached between the family and the Council earlier in the Tribunal process about many parts of the original appeal. The Tribunal was satisfied the working EHC plan document it considered in September reflected the agreements already made. I cannot reconsider the Tribunal’s decision about this.
58. There were some parts of the appeal which were outstanding and were discussed at the September 2021 Tribunal hearing. The Tribunal then ordered changes to the education sections of D’s EHC plan. I am satisfied the Council made changes to the plan in line with the Tribunal’s order.
59. The SEND Tribunal also recommended changes to the health and social care sections of the plan. The Council must properly consider Tribunal recommendations about these sections but does not have to comply with them. In this case, the Council decided to accept the recommendations about the health and social care sections. It sought input from relevant NHS and social care professionals and made changes as appropriate.
60. The Council issued an amended plan within five weeks of the Tribunal order, as required by statutory timescales. The Council evidenced it had met the requirements of the Tribunal. I found no fault with this.

Ensuring D received the provision in the post-Tribunal October 2021 EHC plan

61. Ms and Mr X said once the Council issued the amended EHC plan, D did not receive the special educational provision set out in the plan. We cannot investigate complaints about what happens in schools unless it relates to a school’s actions on behalf of a council to secure educational provision set out in an EHC plan. As set out at paragraph 23, the Council retains responsibility for ensuring the special educational provision is in place.
62. The Ombudsman recognises 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. However, the Ombudsman considers councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum they should 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.
63. We would have expected the Council to check the educational provision in D’s post-Tribunal EHC plan was in place in good time, and certainly before Ms and Mr X raised concerns in March 2022. There had been substantial changes to the plan and D was at a new educational placement. There was no evidence the Council took steps to assure itself provision was in place, which was fault. Ms and Mr X told the Council the plan was not being delivered in March 2022. By this point it was already aware of wider issues with EHC plan provision at the school and was taking steps to address this more broadly. However, it did not properly investigate the specific issues in D’s case, despite Ms and Mr X repeatedly raising this. It took no action until it agreed to attend the May 2022 EHC plan review meeting.
64. The Council accepted at the May 2022 review meeting it was clear some provision from D’s plan had not been in place. However, it then took no action to ensure the provision in D’s latest final plan was put in place while the review process was ongoing. This was fault. A reviewed plan was not then issued until November 2022.
65. There are not enough records to be certain about what SEN provision D received from September 2021 to November 2022. The available records indicate the following.
66. The October 2021 EHC plan agreed at Tribunal said D would “require full-time adult support for at least the first term and a half (of Year 7) to be reviewed in January 2022”. The evidence showed that by January 2022 when the arrangements for this one-to-one support should have been reviewed, it was still not in place. In fact, D only received this for the final term of the 2021/2022 school year, after Ms and Mr X chased this many times.
67. The plan specified some of D’s support should be delivered in small group sessions. They did not receive this support because they were not entering the classroom with their peer group.
68. The plan said D would have access to a “laptop and other assistive technology for use at school and at home for homework”. It also said they would receive dedicated support sessions for IT and software, assistive technology, and keyboard skills. By July 2022 this was still not in place and School A told the Council it could not provide this. This was still outstanding when Ms and Mr X came to the Ombudsman in 2023.
69. The Council said from late-November 2021 onwards School A arranged one 30-minute Speech and Language Therapy (SaLT) session for D per week. Records showed D attended around half of these sessions before the May 2022 EHC plan review. Although D received some SaLT, I am not satisfied the full SaLT provision outlined in the EHC plan was put in place.
70. The post-Tribunal plan said once D was settled in their new school, they should be assessed by an Occupational Therapist (OT) with relevant experience, requiring a minimum of 20 hours for the assessment. It said the OT should prepare a report to update the special educational outcomes and provision set out in the EHC plan. The school should then continue to liaise with an OT service for guidance. The Council did not seek a referral for an OT to assess D until July 2022. In internal emails when it sought the referral, the Council said it should have done so when it first finalised the EHC plan in October. At the time of our decision, the OT assessment was still not complete. The Council’s failure to ensure this was progressed in good time, was fault.
71. Records showed D attended 35 sessions for support with reading and phonics across two terms before the May 2022 review. Although D received some support in this area, I am not satisfied the full provision outlined in the EHC plan under ‘cognition and learning’ was put in place.
72. On the balance of probabilities, I am not satisfied D received the special educational provision set out in their October 2021 EHC plan. This is because:
• as I have set out above the evidence showed that even for areas of the plan where some provision was delivered, this was not line with what the plan said. For most parts of the plan there was no evidence available to show D received anything at all;
• as I explain later in this statement, I am not satisfied School A offered suitable education which was “reasonably practicable” for D to access. This meant D’s attendance from September 2021 onwards was sporadic. It is clear they were not in school for enough time each week to access all the support set out in the plan; and
• the Council accepted there were wider issues with School A in relation to the delivery of EHC plan provision. It also accepted that in D’s case specifically, it was clear at the May 2022 review they had not received some of their EHC plan provision.
73. The Council should remedy the injustice caused to D and their parents by its failure to ensure they received the special educational provision set out in their October 2021 EHC plan.
74. Ms and Mr X also said D did not receive the health provision set out in section G of their EHC plan, namely Cognitive Behavioural Therapy (CBT). The September 2021 SEND Tribunal agreed this should remain in the health section of the plan rather than be listed as educational provision. The Council is only responsible for ensuring educational provision in the plan is put in place. It appropriately shared the plan with the NHS body responsible for arranging the CBT. If Ms and Mr X want to complain about delivery of the health provision, they need to complain to the NHS body. They will then be able to complain to the Parliamentary and Health Service Ombudsman (PHSO), the body responsible for handling complaints about the NHS, if they are not satisfied with the response.

EHC plan review process from September 2021 to November 2022

75. Ms and Mr X said the Council did not seek information from professionals involved with D before the May 2022 review meeting, such as their class teacher, school support staff, OT, and SaLT. As described at paragraph 26, information to inform the review need only be sought from those invited to the meeting, including a representative from the school. Many children with special educational needs receive support from an OT or SaLT, but the legislation does not require that information must be sought from them to inform the review. We would usually only expect to see reports from an OT or SaLT where an EHC needs assessment, or re-assessment, is taking place. In this case, the Council was only reviewing D’s EHC plan, it was not re-assessing their needs. Therefore, I found no fault with this.
76. However, there were significant delays in the review process which I found fault with. After the Council issued the October 2021 post-Tribunal EHC plan, the next annual review meeting was in May 2022. Following this it decided to amend D’s EHC plan, so should have issued an amended plan 8 weeks after the meeting, in line with statutory timescales. Instead, it took 28 weeks to do so. This delay was fault.
77. The Council told us this delay was partly caused by D’s school failing to share its report of the review meeting with the Council in good time. However, although the Council can delegate parts of the annual review process to the school, it still retains responsibility for statutory timescales to be met, so it is the Council which is at fault. It also told us staffing issues contributed to the delay because it had limited capacity within its SEN service due to staff members leaving and delays in recruiting replacements. Although this partly explains the delay, this service failure is still fault which caused the family injustice and delayed their right to appeal to the SEND Tribunal. The Council should remedy the injustice caused.

Alternative education from September 2021 to November 2022

78. In September 2021 the SEND Tribunal recorded D’s transition into School A in the final term of the 2020/2021 school year had gone well. It said they were now on roll at the school as of September and were almost attending full time. I am satisfied the Council was not aware D was still only attending part-time until March 2022, when Ms and Mr X brought this to its attention. However, as I have outlined above, I consider the Council should have checked whether there were any issues with D’s new EHC plan and school placement sooner. If it had, it would have considered whether it needed to provide D with suitable alternative education sooner. I consider the Council’s duty to provide alternative education began at the start of the 2021/2022 spring term, i.e. from January 2022, as it should have checked the EHC plan was in place before this.
79. As outlined above, once the Council became aware of the issues, it took no action to ensure D’s agreed special educational provision was in place while it reviewed the EHC plan. There was also not enough evidence it properly considered whether suitable education was in place for D more generally, given they were not attending school full time. This lack of proper consideration was fault.
80. D attended School A throughout the period I considered, but their attendance and engagement were sporadic. D also received a small amount of weekly maths and science tuition outside of school, arranged by Ms and Mr X. When the Council became aware of the tutoring it said it would explore options for English tutoring too. There was no evidence it did this, which was fault.
81. Ms and Mr X said because D did not receive the one-to-one support set out in their EHC plan, their school attendance declined, and they could not access suitable education when they did attend. Although there are not enough records to be certain about what SEN provision D received at School A, it is clear significant special educational provision was missing.
82. On the balance of probabilities, I am not satisfied School A offered suitable education which was “reasonably practicable” for D to access, as described at paragraph 34. I am not satisfied D had suitable education in place. The Council should remedy the injustice caused to the family because D missed education, and the distress associated with this.
83. The Council reimbursed Ms and Mr X for the maths and science tutoring they arranged and paid for from September 2021 to July 2022. Ms and Mr X said it took too long for the Council to do this. The Council took over five months to make the payment to Ms and Mr X after it had agreed to do so. This delay was fault. The Council should apologise to Ms and Mr X to remedy the injustice caused.

Communication and complaint handling

84. Ms and Mr X repeatedly had to chase the Council about their concerns and the Council did not always respond or keep them updated about the EHC plan review. This was fault, which compounded the distress and frustration caused to Ms and Mr X. The Council should remedy the injustice caused.
85. The Council never provided a comprehensive response to Ms and Mr X’s complaint, at any stage of its complaints procedure. Ms and Mr X came to the Ombudsman nine months after they had complained to the Council, without yet having received a Council response. This delay and failure to respond, was fault, which caused Ms and Mr X avoidable time and trouble in pursuing their complaint. The Council should remedy the injustice caused.

The Human Rights Act

86. I am not satisfied the Council had due regard to D’s human rights under The First Protocol, Article 2, which entitles them to an effective education. It did not properly meet its duties to ensure they had an effective education in place. It did not properly consider the impact its decisions would have on them. This was fault.

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Agreed action

87. As set out in our Guidance on Remedies, where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. I considered whether D was provided with suitable education from January to November 2022.
88. In deciding an appropriate financial payment to recognise the impact of D’s missed education, I considered the following.
• During this period, D was in years 7 and 8 of secondary school and so this was a particularly significant period in their school career.
• D received some tutoring outside school in maths and science, but not in other core subjects such as English.
• My view is D would not have been able to engage with full-time education, even if it had been available to them. However, D was not receiving the provision set out in their latest EHC plan, which included one-to-one support, assistive technology, Speech and Language Therapy, and Occupational Therapy. This meant even their part-time timetable was not reasonably practicable for them to access. When they did attend, they did not receive the special educational provision they needed.
89. Based on this, for the relevant period where D did not have suitable education in place, I consider a remedy of £1,500 for each term to be appropriate.
90. Following inspections of its SEND service by Ofsted in 2018 and 2022, the Council put in place the Devon Local Area SEND Improvement Plan to address the issues identified. Implementation of this plan is being monitored by the Department for Education (DfE) and we are satisfied this is the most appropriate route by which the Council should address our findings. We have therefore recommended the Council should make improvements to its services by considering our findings as part of this improvement plan.
91. Within one month of our final decision, the Council will:
1. apologise to D and their family for the faults identified and the impact of those faults;
2. ensure suitable education is in place for D without delay (within School A, or otherwise if they cannot attend school), including all special educational provision outlined in D’s latest November 2022 EHC plan; and
3. pay the family a total of £4,950 comprising of:
1. £3,750 to recognise the 2.5 terms of suitable education D missed, from January to November 2022. This is intended for D’s future educational benefit;
2. £800 to recognise the avoidable distress caused to Ms and Mr X;
3. £300 to recognise the avoidable distress caused to D; and
4. £100 to recognise the avoidable time and trouble Ms and Mr X spent pursuing their complaint because of delays by the Council.
92. Within three months of our final decision, the Council will share a copy of our decision with its SEND Improvement Partnership Board, to ensure the faults we have identified are considered as part of its SEND Improvement Plan. This should include consideration of how the Council will improve its services to ensure it:
• meets statutory timescales for all EHC plan reviews, including where it has delegated parts of the review process to a school or other institution;
• checks with the family and the school that EHC provision is in place in good time, where a child changes placement or their plan changes substantially;
• investigates and resolves issues without delay where concerns are raised that a child’s EHC plan is not being delivered;
• responds to queries within its SEN service in good time and keeps families updated; and
• meets its duties under Section 19 of the Education Act 1996 to secure alternative education when it is aware a child is out of school for any reason.
93. The Council should provide us with evidence it has complied with the above actions.

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Final decision

94. I have completed my investigation. There was fault by the Council which meant D did not have suitable education in place and did not receive support for their special educational needs. It also caused avoidable distress for D, Ms X, and Mr X, and avoidable time and trouble for Ms and Mr X. The Council agreed to our recommendations to remedy this injustice, and ensure our findings are considered as part of its SEND Improvement Plan.

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Investigator's decision on behalf of the Ombudsman