Summary: Mr and Mrs X complained the Council failed to ensure the provision of full-time education for their son, Y. They also complained the Council failed to secure the provision set out in his education, health and care plan between February and November 2022. The Council failed to issued Y’s amended plan in line with the statutory timescales, and failed to ensure Y had a suitable education and the provision in his plan for two academic terms. The Council agreed to pay Mr and Mrs X £4,000 to recognise the injustice caused to Y.

The complaint

1. Mr and Mrs X complained the Council failed to ensure the provision of full-time education for their son, Y, and failed to secure the provision set out in his education, health and care plan between February and November 2022. Mr and Mrs X said this failure had a negative impact on Y’s education and mental health, and caused them all distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I read the documents Mrs X provided and discussed the complaint with her on the telephone.
6. I considered the documents the Council sent in response to my enquiries.
7. Mr and Mrs 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

Relevant legislation and guidance

Education, health and care plan

8. A child with special educational needs may have an Education, Health and Care (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 tribunal can do this.
9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
10. Where a council proposes to amend an EHC plan, 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
11. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
12. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Provision

13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. 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)
15. 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.

Alternative provision

16. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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)
18. 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))
19. 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)

What happened

20. Y is of secondary school age and has some neuro-differences that means he has special educational needs (SEN). Y has high aspirations and Mrs X describes him as an academically able student.
21. The Council issued a final EHC plan for Y in April 2021. It named school A, a mainstream secondary school, as the school Y should attend. It said that Y needed additional support from trusted adults, alongside a standard curriculum, to understand, articulate and manage his emotions and social relationships. Specifically it said Y needed:
• Structured activities with three or four other children with adult support to form relationships and use appropriate social skills.
• Weekly one-to-one/small group intervention teaching conversational skills and managing conflict.
• Specific work on anger management and emotional regulation.
• Weekly one-to-one/small group intervention teaching self-regulation skills using the Zones of Regulation curriculum.
22. In January 2022 school A contacted the Council as Y was struggling to cope in a mainstream setting due to his SEN. The Council advised the school to hold an emergency annual review.
23. School A held an annual review for Y’s EHC plan on 11 February. It recorded Y had been suspended more than once since September 2021 and was at risk of permanent exclusion. It set out the provision it was offering Y and that Y struggled to manage the school environment because of his SEN. It said it could no longer provide on-site education for Y but would arrange alternative provision while a change in placement was identified. It said Y needed to attend a school that was better able to manage his needs.
24. The records show the Council discussed the interim provision for Y with Mr and Mrs X and school A during the meeting including live streaming lessons, Y attending the after-school provision and an alternative provision. It did not make a decision on that point. Mr and Mrs X said they wanted Y to attend school B which was a special school.
25. The following month, the Council contacted school A for an update on the alternative provision Y was receiving. School A said Y was accessing schoolwork and it was planning to provide a tutor from the following week starting with two hours a week.
26. The Council wrote to Mrs X in May and told her it agreed to seek a specialist education placement for Y. Mrs X asked the Council to consult school B and school C. The Council sent consultations to schools B, C and D.
27. Mrs X said Y received six hours of provision a week from an alternative provider (provider I) in June. Mrs X stated they completed mentoring and engagement work including craft activities, cooking, life skills and managing emotions, and basic maths and English.
28. In August the Council considered Y’s placement at its admissions panel meeting. It recorded schools C and D did not offer a place as they had no places in Y’s academic year. School B had declined as it could not meet Y’s needs. The Council said it would contact school A to explore additional alternative provision with providers J and K. It said it would consult independent schools and schools out of the county area.
29. Mrs X complained to the Council in September. She said the Council had delayed in identifying an appropriate school placement for Y and had not provided a proper alternative provision for him in the interim.
30. The Council sent consultations to further schools, E, G, H and another provider, F, in September. Provider F and school G declined to offer a place. School E offered to assess Y for a placement. Following the assessment school E offered Y a place in October.
31. The Council issued the draft amended EHC plan for Mr and Mrs X’s comments in October.
32. The Council responded to Mrs X’s complaint in November. It agreed it had delayed in securing a school placement for Y and it had now named school E in Y’s draft plan. It said Y had provision in place with provider I, which had been successful. It partially upheld Mrs X’s complaint.
33. The Council issued a final amended EHC plan for Y in November 2022. The provision Y needed was the same as the EHC plan in 2021. It named school E, an independent special school, as the school Y should attend. Y began attending school E.
34. Mrs X asked the Council to consider her complaint at stage two. She said seven hours of alternative provision was not adequate and was not put in place until June. She said they accepted school E as it was the only one offered and the Council had breached the timescales in the legislation for allocating a special school.
35. The Council responded to Mrs X’s complaint. It said there was no timescale in law for allocating a special school and it allocated the first available appropriate placement. It said school A remained responsible for providing Y’s education until a new school was named, and school A could have requested extra funding to increase the hours of tuition Y received. It partially upheld Mrs X’s complaint.
36. In response to my enquiries the Council accepted Y did not receive the full provision set out in his plan. It said this was due to a lack of alternative providers.

Alternative provision

37. Mrs X told me that Y received 39 hours of alternative provision between February and October 2022. It consisted of:
• One hour a week English tuition from 11 May 2022
• Six hours a week engagement mentor from provider I in June and July 2022
• Two hours of maths tuition in July 2022
• Three hours of maths tuition in September 2022

My findings

Education, health and care plan

38. Y had an EHC plan. When concerns were raised about the suitability of the named school, the Council recommended holding an annual review meeting. The school arranged and held the meeting, which the Council attended.
39. The Council should have told Mr and Mrs X of its decision to amend the EHC plan and issued the draft amended plan for their comments within four weeks of the meeting, and issued the final amended plan within eight weeks of the meeting and by 8 April 2022.
40. The Council did not issue the final plan until 10 November 2022. That was an overall delay of 31 weeks and was fault.
41. The Council delayed in issuing the EHC plan because it did not have a setting to name. However, the Council only consulted two or three schools at a time, consulting further settings when the first three declined.
42. The delay caused Y an injustice, as he did not have his EHC plan finalised in time, which caused him and his parents frustration and delayed Mr and Mrs X’s appeal right to the SEND tribunal.
43. Mrs X complained to the Council that she accepted school E as it was the only one offered. I have not investigated this point as Mr and Mrs X have a right of appeal to the SEND Tribunal if they disagree with the named provision in Y’s plan. The tribunal is the appropriate body to consider that point.

Alternative provision

44. Y’s EHC plan set out the support he required alongside a full school curriculum. At the annual review meeting, school A said it could no longer educate Y on site due to his SEN, therefore the education was no longer available to him.
45. The Council had a section 19 duty to ensure Y received a suitable education. School A told the Council in March it intended to provide two hours tutoring the following week. Based on the evidence seen so far, the Council made no further enquiries about the provision Y was receiving and when Mrs X complained, it said the school should have applied for additional funding.
46. In 23 academic weeks, Y received 39 hours of provision. The Council did not consider whether the education provided was suitable for Y’s age, ability, aptitude and SEN. The Council had a duty to ensure this and it was not delegable to school A. The Council did not ensure this and was at fault. This caused Y to miss out on a large proportion of his education for two school terms.

Special education provision

47. The Council has accepted that Y did not receive all the provision in his EHC plan. The Council said this was due to a lack of alternative providers. However, as set out above the Council did not try to identify any alternative providers. In its panel meeting of August 2022 it stated it would explore additional alternative provision, however it did not do so.
48. Although school A was the named school, the Council was aware that Y was not receiving the provision in his plan, and it retained the duty of ensuring that was provided. The failure to ensure the provision was fault and meant that Y’s special educational needs were not fully met for two academic terms.

Communication and complaint response

49. The Council’s communication with Mr and Mrs X was limited. It did not contact them for two months after the annual review meeting, or for three months between May and August 2022. This caused Mr and Mrs X frustration and distress.

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Agreed action

50. Within one month of this decision the Council agreed to:
• write to Mr and Mrs X, and to Y and apologise for the injustice caused to them by the Council’s faults;
• pay Mr and Mrs X £300 to recognise the distress and frustration caused to them by the poor communication and the delayed appeal rights to the SEND tribunal; and
• pay Mr and Mrs X £4,000 to recognise the injustice caused to Y by the delay in issuing the amended EHC plan, and to recognise the lost education and special educational provision to Y over the two terms between February and November 2022. This is calculated at £2,000 per term and is in line with our Guidance on Remedies. Mr and Mrs X should use this for Y’s educational benefit as they see fit.
51. Within three months of this decision the Council agreed to:
• review its procedures when consulting for new education placements for children with EHC plans. In particular, it will ensure its staff are consulting early enough and with sufficient providers to prevent unnecessary delays in children accessing a new education placement;
• remind all its SEN staff that it is the Council’s duty to ensure children receive the provision set out in their EHC plans, and an appropriate education under section 19 of the Education Act, and that those duties cannot be delegated to a school; and
• discuss the findings of this investigation at an appropriate committee or cabinet meeting. This is to ensure the Council's leaders are aware of the delay finalising the Education, Health and Care plan, its poor communication with the family and its failure to provide a child with suitable education. The Council will consider if additional actions are needed to improve its services.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

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Investigator's decision on behalf of the Ombudsman