Summary: Ms X complained the Council failed to ensure her child D received a suitable education or had their special educational needs met. Ms X also said the Council failed to make reasonable adjustments for her as someone with a disability, so she could engage fully in its processes. There was fault by the Council which meant D did not receive suitable education or support for their special educational needs. It also caused avoidable distress for D and for Ms X. The Council agreed to apologise, agree reasonable adjustments it will make for Ms X, ensure suitable education and special educational support is in place for D without delay, and pay a financial remedy. It will also review relevant procedures, issue reminders to its staff, and ensure our findings are considered as part of its SEND Improvement Strategy.

The complaint

1. Ms X complains the Council failed to provide her child, D, with suitable education and support for their special educational needs (SEN) from 2020 onwards. Ms X says the Council:
• failed to ensure D received suitable alternative education at times when they were out of school from 2020 onwards;
• failed to provide D with a suitable Education, Health, and Care (EHC) plan. She says it did not review the EHC plan properly, seek her views, or consider her preference about which school it should name in the plan;
• failed to ensure D received the provision set out in their EHC plan, both when they were in school and out of school;
• forced D to attend a school from September 2022 which could not meet their needs. The school suspended D, then said they could not return as it could not meet their needs;
• delayed a re-assessment of D’s EHC needs it agreed to in late 2022, and refused to seek professional advice Ms X had asked it to;
• failed to make reasonable adjustments for Ms X, who has a disability, so she could engage fully in the EHC plan process and review meetings; and
• failed to communicate properly with Ms X about these issues, keep her updated, and respond when she first complained.
2. Because of this Ms X says:
• D has missed education. They have increased anxiety, sleep problems, weight problems, and their behavioural difficulties have worsened. D’s social skills have declined, and they have been unable to maintain friendships;
• she has been caused significant stress, isolation, loss of friendships, and loss of sleep;
• because of her disability she has home care and regular hospital appointments. She has often missed appointments because she needs to be home to care for D. She has also missed care she needs because D needs constant supervision and her carers cannot carry out some of her personal care with D present. She also can no longer visit day services which supported her with her disability and socialising; and
• she has suffered a financial loss because she funded some alternative provision herself, and had to pay for D’s lunches, when they would receive free school meals if attending school.
3. Ms X wants the Council to accept its failings, properly re-assess D’s EHC needs, and provide them with a suitable education in a special school.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
10. 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

11. I considered:
• information provided by Ms X and discussed the complaint with them, with the support of their advocate;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
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.
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 this decision with Ofsted.

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What I found

Education Health and Care (EHC) plans

14. 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.
15. 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.
16. A child with an EHC plan must be educated in a mainstream school unless to do so is incompatible with:
• the wishes of the child’s parent(s)/ guardian(s); or
• the provision of efficient education for others, and there are no “reasonable steps” that could be taken to prevent this.

(Children and Families Act 2014 section 33, SEND Code paragraphs 9.88 to 9.94)

17. When a child’s parent(s)/guardian(s) ask for a particular school or other institution to be named in their EHC plan, the council has a “conditional duty” to do so for most types of school/ institution i.e., all those listed in section 38(3) of the Children and Families Act 2014. This means the council must consult the requested school/ institution, and name it in the plan unless:
• it is unsuitable for the child’s age, ability, aptitude, or special educational needs; or
• the child’s attendance there would be incompatible with the provision of efficient education for others, or the efficient use of resources.

(Children and Families Act 2014 section 39, SEND Code paragraphs 9.78 to 9.80)

18. When a council names a school or other institution in a child’s final EHC plan, the school/ institution has a duty to admit the child. (Children and Families Act 2014 section 43)
19. 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)
20. 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.

EHC plan reviews and re-assessments

21. 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)
22. 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)
23. 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)
24. 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)
25. 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)
26. There may be occasions when not just a review, but a re-assessment of the child’s EHC needs becomes appropriate, particularly when their needs change significantly. Councils must normally arrange a re-assessment if a child’s family or school requests this. A council may also decide to arrange a re-assessment without a request, if it thinks one is necessary. (SEND Code paragraphs 9.186 and 9.187)
27. Once a council has decided to re-assess, the process for re-assessment is the same as the process for a first EHC needs assessment. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. However, the Council must aim to complete the process as soon as practicable. (SEND Code paragraphs 9.191 and 9.192)
28. As part of the re-assessment councils must gather advice from relevant professionals. This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent(s)/guardian(s), where the council considers it reasonable; and
• any other advice and information a council considers appropriate for a satisfactory assessment.

(SEND Regulations 2014 section 6)

Appeal rights and the SEND Tribunal

29. 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)
30. 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).

Alternative educational provision for a child out of school

31. 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)
32. 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)
33. 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.
34. 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))
35. 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)
36. 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’)
37. DfE non-statutory guidance, ‘DfE Summary of responsibilities where a mental health issue is affecting attendance February 2023’, says councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.

The Human Rights Act

38. 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.
39. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
40. 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.

The Equality Act and reasonable adjustments

41. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
42. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
43. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

The Ombudsman’s equal access focus report

44. In May 2022 we published a focus report, “Equal access: Getting it right for people with disabilities". This set out what we expect from bodies we investigate in considering and implementing reasonable adjustments. This said a relevant body should:
• be proactive in asking every person who approaches the service whether they need any changes to be made in the way they are dealt with;
• where it is aware of a person’s disability, anticipate their needs and make any necessary reasonable adjustments in consultation with them or their representative. The service should not wait for the person to tell them what adjustments they require; and
• where a person asks for reasonable adjustments to be made, put these in place unless the request is not considered reasonable.

What happened

45. Ms X has a disability which affects her written and verbal communication. She has support from an advocate to help her with this.
46. Ms X’s child, D, got their first EHC plan in January 2020. They were attending a mainstream primary school, School A.
47. In the 2020/2021 school year, D was in year 1. During this year:
• Ms X and D moved house temporarily due to circumstances outside of their control. This meant they now lived an hour’s drive away from School A;
• D was out of school for significant periods, sometimes due to COVID-19 restrictions; and
• there was an annual review of D’s EHC plan at the end of the school year and it was decided no changes were needed.
48. In September 2021, D started year 2 at School A. Shortly after the start of year 2, there was an incident which meant D could no longer attend school; Ms X had no way of getting them there.
49. Ms X asked the Council to hold an early annual review of D’s EHC plan and this happened in January 2022. The meeting was attended by:
• Ms X and her advocate who helps her with communication;
• Ms X’s representative from the Council’s Special Educational Needs & Disability Information Advice and Support Service (SENDIASS);
• one of D’s social workers from the Council; and
• three members of staff from School A.
50. At the meeting, all present noted D had not attended school since September 2021, and agreed they did not consider D’s needs could be met in a mainstream school. School A shared a report of the meeting with the Council and asked it to consider a special school placement for D.
51. Ten weeks after the meeting, after chasing from School A and SENDIASS, the Council told Ms X it would be amending D’s EHC plan. Shortly afterwards, Ms X complained to the Council via her MP about delays in the EHC plan process and in ensuring suitable education was in place for D. The Council responded at Stage 1 of its complaints procedure in May 2022. Ms X did not escalate the complaint further. However, the issues remained unresolved.
52. The Council issued a draft amended EHC plan in late-April 2022. Ms X asked the Council to carry out a re-assessment of D’s EHC needs, and to consult a special school to be named in the plan, School B. She agreed the Council could also consult a mainstream school it had suggested, School C. The Council said there was no evidence a mainstream school would not be suitable for D. It sent consultations to School B and School C. It also made a referral for a new Educational Psychologist assessment to inform changes to D’s EHC plan, but did not formally respond to Ms X’s request for a full needs re-assessment. Both School B and School C responded to the Council to say they did not think they were suitable to be named in the EHC plan and could not meet D’s needs.
53. The Council issued a final amended plan for D in June 2022, naming the mainstream school, School C, in the plan. This was five months after the review meeting. It told Ms X about her right to appeal about the plan to the SEND Tribunal.
54. In September 2022, D started year 3 at School C. At the end of November 2022, there was an incident which resulted in School C suspending D for two days. When the school lifted the suspension, D could not return to school because they had no way of getting there. School C contacted the Council to raise concerns. It said it could no longer meet D’s needs, thought they needed a specialist placement, and would arrange an early annual EHC plan review. D did not return to school after this.
55. In December 2022 School C held the review meeting. It was attended by:
• Ms X, but not her advocate who helps with communication;
• Ms X’s representative from the SENDIASS;
• a member of the Council’s SEND team;
• two of D’s social workers from the Council; and
• two members of staff from School C.
56. At the meeting, all present agreed D needed:
• a re-assessment of their EHC needs including an Educational Psychologist assessment;
• a specialist school placement, not a mainstream school; and
• interim arrangements to be made for alternative education at home while a suitable school placement was found.
57. A week later, Ms X complained to the Council again. She said she had not contributed properly to the review meeting because adjustments were not made to meet her communication needs. She also said D was still out of school with no alternative education in place.
58. At the end of December 2022, the Council told Ms X it would carry out a re-assessment of D’s EHC needs.
59. In January 2023 the Council responded to Ms X’s December complaint at Stage 1 of its complaints procedure. It said it was exploring options for alternative education for D. It also said once its re-assessment of D’s EHC needs was complete it would issue a draft amended EHC plan and consult School B again. Ms X asked to escalate her complaint to Stage 2.
60. In late-January 2023, the Council provided funding for D to attend an educational setting, Setting Q, for 2 days a week. The same week it responded to Ms X’s request to escalate her complaint to Stage 2. It said it was satisfied with its Stage 1 response and would not be responding at Stage 2.
61. In February 2023 Ms X came to the Ombudsman. In May 2023 the Council completed its re-assessment of D’s EHC needs and issued a draft amended plan. Following comments from Ms X it then issued a further draft in June. Ms X’s SENDIASS representative confirmed Ms X agreed to this draft. Ms X asked the Council to consult School B again, and three other special schools.
62. As of July 2023, when the Council responded to our enquiries:
• D was still out of school. The Council had increased their attendance at Setting Q to 3 days a week;
• three of the four special schools consulted, including School B, had responded to say they did not consider they were suitable placements for D; and
• the Council had not issued a final amended EHC plan following the re-assessment it agreed to in December 2022. It said it was considering the responses from schools consulted and planned to consult more schools. It planned to issue a final plan in the meantime naming D’s current mainstream school, School C.

What I have and have not investigated

63. Ms X complained about the Council’s actions from 2020 onwards. 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 X brought her complaint to the Ombudsman in February 2023. I have decided there are good reasons to investigate what happened after September 2021, when D started year 2 of primary school. This is because:
• Ms X first complained to the Council in April 2022 but following this, issues with D’s EHC plan and alternative education remained unresolved. Ms X therefore complained again in December 2022 and once the Council finished its complaints procedure it told her she could bring her complaint to us. I consider this is good reason why Ms X took longer to complain to us because she had a reasonable expectation that issues would be resolved following the first complaint; and
• Ms X has a disability which affects her written and verbal communication. She needs support from an advocate which means it takes her longer to navigate processes.
64. However, I am satisfied Ms X could have complained to the Council and to us about events before September 2021 earlier, and there are no good reasons to investigate those earlier events now.
65. Ms X had a right of appeal to the SEND Tribunal about the content of D’s final EHC plan issued in June 2022, including the Council’s decision to name School C as D’s placement. The SEND Tribunal is an independent expert body whose decisions are binding on the Council. The law says we cannot normally investigate an issue which someone could have appealed to a tribunal, unless we consider it would have been unreasonable to expect them to appeal. Although Ms X has difficulties with communication, at the time the Council issued the June 2022 plan, it told Ms X about her right to appeal to the Tribunal and the process for this. She was also receiving support from her advocate to assist with communication, and from SENDIASS. I therefore consider it reasonable for Ms X to have appealed if she disagreed with the content of the plan, or the school named in the plan.
66. This means I have not considered the following parts of Ms X’s complaint.
1. Whether the provision set out in D’s EHC plan was suitable before June 2022. This is because Ms X could have appealed to the SEND Tribunal about the content of D’s plan that was in place before this.
2. Whether the provision set out in D’s June 2022 EHC plan was suitable, as this was appealable to the Tribunal. This includes Ms X’s complaint that the Council forced D to attend School C, as she could have appealed about the school named in the plan. I also have not considered the process followed by the Council in drafting the June 2022 plan, such as how it sought Ms X’s views and considered her preferences for which school D should attend. This is because this drafting process led to the June 2022 plan which she could have appealed, so there is no value in considering this now.
3. The Council accepted in December 2022 it should carry out an EHC needs re-assessment for D, and in June 2023 issued a draft amended plan. Once the Council issues a final plan, Ms X will be able to appeal to the SEND Tribunal about the content of the plan, including the named school. Therefore, I have not considered whether the provision in the June draft is suitable, as this is part of the drafting process and will be appealable to Tribunal once finalised. However, I have considered whether there was any fault or delay in the re-assessment process which caused an injustice.
4. The Ombudsman also cannot investigate any matters which are closely linked to issues which are, or could reasonably have been, the subject of a tribunal appeal. Where a child is out of school because the provision or school named in their EHC plan does not meet their needs, we cannot seek a remedy for any missed education after a final 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. This means I cannot consider or provide a remedy for education D missed from September to December 2022. The June 2022 final plan named a place at School C starting in September 2022 which Ms X could have appealed, and the Council did not accept School C was not suitable until December 2022.

My findings

D’s Education, Health, and Care plan

67. In April 2022, Ms X asked the Council to re-assess D’s EHC needs. The Council did not properly consider or respond to this. It sent a referral for a new Educational Psychologist report but did not consider whether a full re-assessment was needed. It then did not follow up on this referral and it was not progressed further. This was fault. I cannot say what the Council would have decided had it considered this request for re-assessment properly. However, I consider there remains uncertainty for Ms X about how this may have changed things for D, and the Council’s failure to properly respond caused her frustration. The Council should remedy the distress caused.
68. Although I have not considered the suitability of the June 2022 EHC plan, I considered whether there were delays in issuing the plan which frustrated Ms X’s right to appeal to the SEND Tribunal. The Council issued the plan over 20 weeks after the January 2022 review meeting, instead of the 12 weeks required by statutory timescales. This was fault. However, I do not consider this delay caused the family an injustice because:
• once the final plan was issued, Ms X did not appeal this to the Tribunal anyway; and
• the delay did not change anything for D. They were out of school anyway and, as I will go on to explain, they were not receiving any SEN provision either before or after the final plan was issued. I will consider the injustice caused by the lack of SEN provision separately.
69. Ms X said the December 2022 EHC annual review meeting was not carried out properly. I consider there was fault, because Ms X’s advocate was not present to support her with communication. The Council told Ms X School C was responsible for the review meeting and it would follow up with the school about the issues she raised about the meeting. The law allows councils to delegate full responsibility for arranging a review to a child’s school. We would only find fault with a council if it was aware there were issues with how a school arranged a review and it failed to act. In this case, the Council attended the review meeting. It was aware Ms X usually used an advocate who was not there, but failed to address this when Ms X experienced issues at the meeting. This was fault. The Council should remedy the distress caused. However, I do not consider this changed anything in terms of D’s EHC plan, because a re-assessment was agreed to at the meeting anyway.
70. Once the Council completed the EHC needs re-assessment it agreed to in December 2022, it issued a draft amended plan. It considered Ms X’s views about this plan in good time and promptly consulted all the schools she asked it to. However, the Council was at fault in how it carried out the re-assessment because:
• the law says the Council should issue a final amended plan within 14 weeks of its decision to re-assess. As of July 2023, the Council had still not issued a plan, over 30 weeks after it agreed to the re-assessment. This was fault. The Council said the delays were partly caused by a national shortage of Educational Psychologists (EPs) which meant it took longer to get an EP assessment for D. Although this explains one of the reasons for the delay, this service failure is still fault which caused the family injustice; and
• when the EP provided their report to the Council in March 2023, they said they felt D must be assessed by an Occupational Therapist (OT). There was no evidence the Council considered whether it should seek advice from an OT to inform the re-assessment.
71. The Council’s failure to carry out the re-assessment properly caused Ms X distress and has frustrated her right to appeal about the plan to the Tribunal if she wishes to. The Council should remedy the injustice caused.

Alternative education while D was out of school

72. A council must arrange suitable alternative education when a child is out of school for 15 days or more, for any reason. D has been out of school since September 2021 and the Council has been aware of this.
73. Based on the evidence available, I consider the Council had a duty to ensure D was provided with suitable alternative education from September 2021 onwards, and failed to do so. I also consider it failed to ensure D received the provision set out in their EHC plan during this period. This was fault.
74. The evidence provided by the Council showed its staff did not understand its duty to ensure suitable education is in place for children who are out of school for any reason.
1. In the 2021/2022 school year when D was attending School A, internal emails showed the Council said an impasse had been reached about the type of alternative provision School A was prepared to offer while it considered D’s absence from school to be unauthorised. This shows the Council did not recognise the duty to ensure D received alternative provision lay with the Council, not the school.
2. In one email from April 2022, the Council told one of Ms X’s representatives it had been told D could not attend school because of the effect on their mental health. However, it said because the family had not provided medical evidence it was “not officially aware that [D was] unable to attend school”. The guidance referred to at paragraph 37 was not published at the time the Council sent this email, so I would not expect the Council to have had regard to it in this case. However, in general the Ombudsman considers a council should not adopt a blanket approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of councils that ‘fetter their discretion’ in this way. The Council’s claim that it was not “officially” aware D was out of school because of a lack of medical evidence, was a fundamental misunderstanding of its duties. It also had powers to require D to attend if it considered they were out of school without valid reason. It did not use these powers which suggests it did not consider D was out of school without good reason.
3. In December 2022, the Council’s SEN team consulted with its ‘Alternative Tuition Service’ about whether it could provide alternative education to D while they were out of school. The service said it could not do this because places were full, so it had to “support statutory referrals first”. Given the Council has a statutory duty to ensure alternative education is in place for children out of school for any reason, I am unclear what it meant by this.
75. As explained at paragraph 66d, I have not considered education D missed from September to December 2022. However, I consider the Council should remedy the education D missed for:
• the entire 2021/2022 school year; and
• the final two terms of the 2022/2023 school year.
76. During the 2021/2022 school year:
• for the first two terms D received no education at all; and
• for the final term D received two four-hour days per week at Setting Q, arranged and paid for by Ms X.
77. During the 2022/2023 school year:
• for the first half of the first term, D continued to receive two days per week at Setting Q, arranged by Ms X. For the remainder of that term, they received no education at all; and
• for the final two terms, D received two days per week at Setting Q, arranged and paid for by the Council.
78. There was no evidence the Council considered whether the provision D received from Setting Q was educational, or that it was suitable for D’s age, ability, aptitude, and SEN. There was no evidence it ensured the provision set out in D’s EHC plan was in place while accessing Setting Q.
79. One of Ms X’s representatives told the Council in April 2022, and again in November 2022, that she was funding Setting Q for D herself. The Council failed to address this or repay Ms X for the money she spent because of its failure to put education in place for D. This was fault. The Council should repay Ms X for the financial loss this caused her.
80. Ms X said she suffered a financial loss while D was out of school because she had to pay for all their meals when they would have been entitled to free school meals if attending. Section 512 of the Education Act 1996 puts a responsibility on the Council to provide free school meals for eligible pupils who are enrolled at a maintained school. For the whole period I considered, D was enrolled at either School A or School C, which are both academy schools, not schools maintained by the Council. Therefore, the Council was not required to provide free school meals while D was out of school.

The Human Rights Act

81. 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.

Communication with Ms X

82. I consider the Council was at fault in how it communicated with Ms X because the evidence showed it did not proactively update her about its actions in amending D’s EHC plan or in securing alternative education. It did not explain revised timescales when there were delays. Ms X and her representatives repeatedly had to chase up the Council about these issues.
83. This fault by the Council caused Ms X frustration and distress, for which the Council should provide a remedy.

The Equality Act and reasonable adjustments

84. We cannot decide if an organisation has discriminated against an individual, or if it has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. I consider the Council failed to properly take account of its duties under the Equality Act in how it communicated with Ms X.
85. As described at paragraph 43, the reasonable adjustments duty in the Equality Act is ‘anticipatory’. The Council said once its children’s services teams are told about the need for reasonable adjustments, these are put in place. It also said Ms X did not make its complaints team aware of any adjustments she needed to use the complaints procedure. As described at paragraph 44, our “Equal access” focus report says councils should be proactive and, when aware of a person’s disability, anticipate their needs and consult them about reasonable adjustments. They should not wait for the person to tell them what adjustments they need. There was no evidence the Council asked Ms X if she wanted to ask for any adjustments to how it should communicate with her, despite it being aware she has a disability which significantly affects her ability to communicate. This was fault.
86. The Council said its SEN team was aware of some of Ms X’s communication needs and adjustments she had asked for. It said the adjustments it made for Ms X were as follows.
• EHC plan documents were printed and sent to Ms X by post.
• Emails to Ms X were copied to her advocate, her SENDIASS representative, and her social workers.
• Phone calls were more difficult unless arranged when Ms X had support available.
87. The Council was aware phone calls were difficult for Ms X without support, but it did not ensure it arranged all phone calls when her advocate was available to support her. The Council was inconsistent in how it communicated with Ms X. This led to a mixture of messages being relayed via her advocate, SENDIASS representative, social workers, and solicitor, all of whom were providing different types of support to Ms X. The role of Ms X’s advocate was solely to support her with communication and the Council did not always include them in communications. My view is the Council did not clearly record or agree with Ms X what adjustments she needed. I consider this evidence the Council did not properly consider how it should communicate with Ms X, including its reasonable adjustment duties to her under the Equality Act, as a person who is disabled. This was fault. Because of this, the Council did not communicate with Ms X in the way she needed it to, which caused her distress and confusion. The Council should remedy the injustice caused.
88. Our “Equal access” focus report says where a person asks for reasonable adjustments to be made, these should be put in place unless the request is not considered reasonable. During the EHC plan re-assessment process, Ms X asked the Council to provide information about local schools in an ‘Easy Read’ format. The Council told her it did not hold this information in an Easy Read format. It directed her to website information and offered her a meeting to discuss the information instead. Ms X did not take up this offer as she said she had lost trust in the Council so wanted the information in a form she could read and understand herself. I cannot be satisfied the Council properly considered Ms X’s request and decided whether it was reasonable before it refused it. This was fault. However, when Ms X complained to the Ombudsman, she again asked for Easy Read documents. We provided this, and she told us she could not read and understand them anyway, so we should communicate directly with her advocate instead. Therefore, I do not consider the Council’s failure to properly consider Ms X’s request for Easy Read documents changed anything for her.

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Agreed action

89. 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. As previously explained, we cannot consider the education D missed during the first term of the 2022/2023 school year. I consider the Council should remedy the education D missed for the entire 2021/2022 school year, and the final two terms of the 2022/2023 school year. This is five terms of education in total. In deciding an appropriate financial payment for this period, I considered the following.
• During this period, D was in years 2 and 3 of primary school. We do not consider this to be a particularly significant period in a child’s school career, as we would say for the first year of primary or secondary school.
• For two of the five terms we consider should be remedied, D had no education in place at all. For the other three terms, D received some provision from Setting Q. However, I cannot be satisfied this provision was educational, or that it was suitable for D’s age, ability, aptitude, and SEN.
• I consider D would have been able to engage with full-time education throughout this period if it had been available to them.
• The Council did not take steps to ensure D received the provision set out in their EHC plan during this period. However, the type of support outlined in the plan was in-class changes to how D’s education should be delivered, rather than any additional specific therapies such as Occupational Therapy or Speech and Language Therapy.
90. Based on these factors, I consider the following remedies to be appropriate.
• £1,800 per term for the 2 terms in 2021/2022 when there was no education in place at all.
• £1,600 per term for the 3 terms when D was attending Setting Q twice a week, plus a repayment to Ms X for the £330 she spent on Setting Q in the final term of 2021/22.
• No remedy is due for the first term of 2022/2023 for the reasons explained at paragraph 66d.
91. Within one month of our final decision, the Council will:
1. apologise to D and Ms X for the faults identified and the impact of those faults;
2. agree, in consultation with Ms X, any reasonable adjustments it will provide to help her use its services, then ensure it implements these across its services;
3. finish its re-assessment of D’s EHC needs and issue a final amended EHC plan without delay so Ms X can appeal to the SEND Tribunal if she wishes to do so;
4. ensure suitable education and special educational needs support is in place for D without delay. It should ensure alternative education is in place for D which is suitable for their age, ability, aptitude, and SEN, until it can find a suitable school placement;
5. pay Ms X a total of £10,130, comprising of:
1. £8,400 to recognise the 5 terms of suitable education D missed in 2021/2022 and 2022/2023. This is intended for D’s future educational benefit;
2. £330 to repay Ms X the money she spent on Setting Q in the final term of the 2021/2022 school year;
3. £1,000 to recognise the avoidable distress caused to Ms X by the Council’s failings; and
4. £400 to recognise the avoidable distress to D.
92. We have identified recurrent fault by this Council in several cases over the last two years about alternative education for children out of school, covering a period of more than three years. In February 2023, we issued a public interest report about the Council’s failings in this area, case reference 22002489. The Council agreed to various recommendations to improve its services in this area including a review of relevant policies and procedures, and compulsory in-person training for staff responsible for arranging alternative education. I therefore do not consider it necessary to make further recommendations about this in this case.
93. Within three months of our final decision, the Council will:
1. issue reminders to all relevant staff who manage its EHC plan processes about:
1. its statutory duty to properly consider and respond to requests from families for an EHC needs re-assessment;
2. its statutory duty to properly consider and respond to requests from families for further professional advice to be sought as part of an EHC needs assessment or re-assessment;
3. its statutory duty to carry out EHC plan reviews and EHC needs assessments or re-assessments within the required timescales; and
4. the importance of communicating properly with families and keeping them updated about any delays.
2. share a copy of our final decision with all staff who work in its SEND service and complaints service, and remind them of the Council’s duties under the Equality Act 2010, including the reasonable adjustment duty; and
3. ensure a copy of our final decision is considered as part of its ongoing SEND Improvement Strategy, following its Independent SEND Review. The Council commissioned this independent review in 2021 to address issues with its SEND services and is monitoring progress against the actions it identified.
94. The Council will provide us with evidence it has complied with the above actions.

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Final decision

95. 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 and for Ms X. The Council agreed to our recommendations to remedy this injustice, review relevant procedures, issue reminders to its staff, and ensure our findings are considered as part of its ongoing SEND Improvement Strategy.

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Investigator's decision on behalf of the Ombudsman