Summary: We upheld a complaint about a failure to secure Y's education provision and a failure to arrange an annual review of his Education, Health and Care Plan. The Council will apologise, make payments, appoint an advocate and arrange an urgent annual review.

The complaint

1. Ms X complained the Council:
• Did not secure the education provision on Y’s Education, Health and Care (EHC) plan
• Did not arrange an emergency annual review although Y had been out of education for some months. This is continuing.
2. Ms X said this meant Y has not been in school since he was expelled from his previous school in July 2022. He has a loss of education and she has suffered avoidable distress and has been home schooling him.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered Ms X’s complaint to the Ombudsman, the Council’s response to the complaint and information and documents from the Council set out later in this statement. I discussed the complaint with Ms X.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

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 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.

10. 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) 2014. 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)
11. The SEND Code of Practice requires EHC plans should be reviewed at least every year. Although nothing in law or in the SEND Code requires a council to carry out more frequent reviews, we would expect councils to consider requests for an early review and explain why they are refusing a request.
12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19).

What happened

13. Y has special educational needs. His current EHC plan is July 2022. The plan names School A, a maintained special school for pupils with social, emotional and mental health difficulties. I have summarised the provision in Section F:
• An individual behavioural plan promoting social skills
• Weekly targeted support to develop emotional literacy
• A speech and language therapy programme devised by a SALT and delivered at least twice a week by a teaching assistant; sessions to last 10-15 minutes
• Termly review by a SALT. 2.5 hours for observation, planning and programme updates.
14. Ms X complained to the Council in September 2022. Its first response said it had consulted with two special schools and neither offered Y a place. So the Council finalised the EHC plan naming School A as there was no other choice. School A said it could not meet Y’s needs so the Council offered School A additional support. School A continued to decline a place. The Council went on to say it was consulting with another school and hoped this school would offer a place.
15. Ms X was unhappy with the Council’s first response so in November 2022 she asked for a further response at stage two of the Council’s complaints procedure. Mrs X said she was educating Y at home with no support from the Council and the Council had not done enough to secure another school placement for Y. At the end of November 2022, the Council refused to provide a second response. It said that a suitable placement at School B had since been identified, that the EHC plan was in draft form (this is incorrect) and an emergency annual review was not appropriate.
16. Ms X complained to us in February 2023.
17. Ms X’s lawyer and the Council’s lawyers exchanged correspondence in March. Ms X was seeking a place at School C or another special school in the Wirral area. Or she wanted home tuition for Y until a suitable placement could be found. The Council said:
• It had faced difficulties finding Y a suitable placement and had consulted many schools.
• It had secured a place at School B, an independent special school, which was out of borough but close to other Wirral schools, and it had agreed to fund transport.
• Ms X’s preferred school had declined a place
• Senior managers were liaising with School A with a view to him attending but being taught outside the classroom at this stage.
18. We asked the Council to update us on the position. It told us:
• An alternative place at School B was available
• The Council had just commissioned 20 hours a week of individual tuition which could begin after the spring break. There would be a plan to transition Y to small group learning
• There would be a risk assessment for a placement at School A. This was delayed due to the absence of the headteacher. A senior council officer was liaising with School A to sort this out as soon as possible.
19. Ms X told me she had concerns around School B because Y is a flight risk and she could not travel there easily were he to abscond. She also told me she had concerns about temporary home tuition or a temporary school place because it would unsettle Y and she would prefer to continue to home school him until the Council secured a place in a local special school. She said she would like proper resources for home schooling and support with this as a temporary arrangement until Y could resume school at a local special school.

Findings

The Council did not secure the education provision on Y’s EHC plan

20. Y was excluded from school in July 2022. He was therefore not in education. The Council issued an EHC plan naming an alternative placement, School A. School A refused to admit Y. I cannot comment on the actions of School A as it is not a body within our remit.
21. The Council was required to secure the provision on Mr Y’s EHC plan which named School A from September 2022. The Council knew at the time it issued the plan, or shortly after, that School A would not admit Y and so Y would remain without education. The Council should therefore have made alternative arrangements for Y’s education provision in September 2022 in line with its duties under Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996. The failure to do so was fault.
22. The Council did not identify an alternative placement at School B (a special school) until the end of November 2022. This was a delay of two months, was fault and resulted in a loss of education provision for Y. I note the Council says it was consulting with other schools which is appropriate. But I note also that it did not offer any alternative provision for Y in the meantime. This was not in line with Section 19 of the Education Act 1996 and was fault causing Y a loss of education provision.
23. I am satisfied that from the end of November 2022, the Council offered a placement at School B which had it been taken up, would have secured the provision on Y’s EHC plan, despite Ms X’s concerns about the placement being far away for her to get to should she need to assist in the event Y absconded. I note School B is in a neighbouring borough and the Council has offered transport. I presume Y’s risk of absconding would be the same wherever his placement is located. There are no grounds for me to criticise the suitability of School B based on its location.

The Council did not arrange an emergency annual review although Y had been out of education for some months and continuing.

24. Although there is no specific legal requirement for emergency annual reviews, our view is a council should consider a parent’s request for one and explain why it would not agree to a request. There was fault by the Council. It said in its refusal to escalate Ms X’s complaint, that Y’s EHC plan was in draft form. This was misleading information which caused confusion because Y’s EHC plan was finalised in July 2022. The Council should have considered Ms X’s request for an early annual review, taking into account Y was out of education at the time and had no alternative provision in place. The review would have been an opportunity for Ms X and council officers to have discussed her concerns about School B and to have explored other options. It was therefore a missed opportunity to progress the case which was then allowed to drift until the Council offered individual tuition in March 2023 following an exchange of legal correspondence.
25. The failure to consider Ms X’s request for an annual review caused her avoidable distress and frustration.

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Agreed action

26. Within one month of my final decision, the Council will:
• Apologise to Ms X for the avoidable distress and make her a payment of £250 to reflect this
• Appoint an advocate for Ms X who can support her during the annual review process and ensure her views are considered, including those I have summarised in paragraph 19
• Carry out an emergency annual review and decide whether Y’s EHC plan needs amending including an amendment to the placement named on the plan; if so it should complete the amendment process in line with statutory timescales
• Make a payment of £1200 to reflect Y’s loss of education for September and November 2022.
27. In making my recommendation for payment for missed education, I have taken into account that a placement with transport at School B was available for Y from December 2022 and so I have not recommended a payment for lost provision from December 2022.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. We uphold a complain about a failure to secure Y's education provision and a failure to arrange an annual review of his Education, Health and Care Plan. The Council will apologise, make payments, appoint an advocate and carry out an urgent annual review.
30. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman