Summary: Mrs X complained the Council failed to provide a suitable education or follow proper process to review her son’s Education Health and Care (EHC) Plan after they moved to the Council’s area in late 2021. The Council’s failure to follow proper process and the delay in reviewing and amending Y’s EHC plan is fault. As is the failure to provide alternative provision between September and November 2022. This fault has caused Mrs X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the council failed to provide a suitable education or follow proper process to review her son’s Education Health and Care (EHC) Plan after they moved to the Council’s area in late 2021.
2. Mrs X says due to the Council’s failings, Y lost out on education and that the matter caused significant distress and frustration to her and her family. She also says the matter caused her time and trouble chasing the Council for updates and complaining. The Council did not issue a final EHC plan until November 2022 thereby delaying her right of appeal.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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). 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.
5. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably 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)
6. 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).
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

8. As part of the investigation, we have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Education Health and Care Plans

9. 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 SEND tribunal can do this.
10. 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.
11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. On transfer the new council becomes responsible for maintaining the plan and securing the special educational provision specified in it. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer:
• that the EHC plan has been transferred;
• whether it proposes to make an EHC needs assessment; and
• when it proposes to review the EHC plan.
12. The new authority must review the plan before one of the following deadlines, whichever is the later:
• Within 12 months of the plan being made or being previously reviewed by the old authority; or
• Within three months of the plan being transferred.

The Council’s policy for people with EHC plans transferring from another council area

13. The Council’s policy says that when a child or young person with an EHC plan moves from another council area to Walsall it will ensure the existing plan is reviewed by the new educational setting within four weeks of the move. This review will determine whether the plan needs to be amended.
14. If the Council decides the plan needs to be amended it will ensure the amended plan is issued within 14 weeks of the original plan being transferred. If it decides the existing plan does not need to be amended it will issue a notice to this effect within four weeks of the review. The existing plan then remains in place until the next annual review.

Alternative provision

15. 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.
16. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
17. 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))
18. 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)
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened here

20. Mrs X’s son Y has had an EHC plan for several years. The family moved to the Council’s area in late 2021 and the Council received Y’s EHC Plan documents from the previous council on 9 December 2021. It then wrote to Mrs X confirming it accepted responsibility for Y’s EHC plan on 17 December 2021.
21. Mrs X asked the Council to review Y’s EHC plan. The Council noted the documents provided by the previous council included annual review paperwork for a review in June 2021. Mrs X disputed this and said Y’s latest plan was issued in April 2021, following an annual review in November 2020. This plan named a mainstream school. Mrs X told the Council the previous council had intended to carry out a review in December 2021, but this did not take place as the family moved. The Council agreed to clarify the issue with the previous council.
22. The Council offered to provide some home tuition while a school placement was found and asked Mrs X for her school preferences. Mrs X did not express any school preferences, she asserted the pan needed to be reviewed before they could identify a suitable placement. The Council advised Mrs X it would consult with the nearest mainstream schools. It then consulted three schools and told Mrs X there would be an annual review of Y’s plan within three months of him starting a placement.
23. Mrs X was unhappy the Council had consulted mainstream settings and shared sensitive information about Y without her consent. She also challenged the Council’s intention not to hold a review until Y had started at a school setting. She noted the Council had a duty to review Y’s EHC plan within 12 months of the last review or three months from the date of the transfer. Mrs X told the Council Y had stopped attending mainstream school in April 2021 and that the previous council considered a provision unit attached to a mainstream school was the most suitable placement.
24. The Council confirmed it would hold an annual review and consult a special placement if this was what Mrs X would like. Mrs X agreed to provide copies of the reports from external services and asked the Council to consult with School 1, a mainstream school. Mrs X provided copies of the reports a couple of days later. She then chased the Council at the end of January and beginning of February 2022 for confirmation of whether School 1 had responded and a date for the review meeting.
25. The home tuition service was due to meet with Mrs X in January 2022 but this was postponed as the family was unwell with COVID-19 and were self-isolating. The service visited Mrs X and Y in early February 2022 and offered to provide two hours tuition per day for five days a week with two tutors. Mrs X asked the Council to take account of Y’s need for consistency and for tuition to take place at the same time each day, with their preference being 10am to 12am. This would allow her to drop off and collect her other children from school and for Y to carry on with his other daily routines. Mrs X told the Council she was unable to agree to tutors attending when they were available without a clear plan of what they would be working on.
26. The Council informed Mrs X that the tuition service could only provide three sessions a week at the time Mrs X requested. It noted that tuition was only a temporary solution until a school place could be sourced. The tuition service informed the Council that Mrs X did not want to go ahead with home tuition at that stage. Mrs X disputes this.
27. Although School 1 advised the Council it could not meet Y’s needs, the Council directed it to admit Y as it could make reasonable adjustments. Mrs X told the Council she no longer wanted Y to attend School 1 and asked it to consult alternative schools. School 2, a specialist school, confirmed it could meet Y’s needs but there were no placements available until September 2022.
28. The Council says it issued a final EHC plan on 18 March 2022, naming School 1 until the end of the academic year and School 2 from September 2022. However the documentation provided shows the Council did not issue an amended final plan naming these schools. It sent Mrs X a copy of the previous authority’s final plan dated April 2021. The Council’s letter to Mrs X of 18 March 2022 says it is now in a position to place Y at School 1 for the current academic year and School 2 from September 2022. It says this will be reflected in Y’s plan once it has been amended following review. The letter also included standard information about the decisions that can be appealed to the SEND Tribunal.
29. The Council asked School 1 to arrange an annual review. The following week, School 2 confirmed it was able to offer Y an immediate placement, which Mrs X accepted. Mrs X requested transport to School 2. The Council agreed. It says that as this could take up to 10 working days to arrange the earliest start date at School 2 was after the Easter holidays.
30. Mrs X says she worked with School 2 prior to the Easter holidays to ensure a smooth transition. The lack of transport meant Y was only able to attend for two days before the Easter break.
31. Transport was arranged to start on 25 April 2022. The Council contacted Mrs X on 22 April 2022 regarding the pick-up arrangements. Mrs X was unhappy with the arrangements and did not consider Y’s needs had been taken into account. She told the Council she had decided to keep Y at home until appropriate transport was in place.
32. The Council moved the pick-up and drop off point to outside Mrs X’s home and confirmed a risk assessment would be in place and that there would be a passenger assistant on board who knew about Y’s needs. The Council asked Mrs X to complete a travel plan. School 2 then sent Mrs X a draft risk assessment and asked for her input. The school noted additional medical information could be added after Y’s appointment with his consultant.
33. Mrs X wanted the risk assessment to include advice from Y’s cardiologist, but the process for obtaining this via Y’s paediatrician took a long time. In mid-June 2022 Mrs X provided a letter from the cardiologist with details of Y’s history and the next steps in his care. She said this was relevant to Y’s risk assessment but should not be considered the cardiologist’s formal input. Mrs X also gave details of the cardiologist recent verbal advice.
34. On 16 June 2022 Mrs X returned the completed travel plan and asked for a copy of the Council’s risk assessment. She also asked for confirmation of pick up and drop off times and contact details for the driver. The Council provided the risk assessment and invited Mrs X to make any amendments. It also confirmed pick up and drop off times and provided details of the transport company. It confirmed this transport could start 20 June 2022.
35. Mrs X did not consider the risk assessment was accurate and complete. She contacted Y’s medical professional for clarification regarding potential symptoms and provision. Until she had this clarification and the information was included in the risk assessment Mrs X would not allow Y to travel to school on the minibus.
36. Mrs X subsequently offered to transport Y to school Monday, Tuesday, and Wednesday but could not provide transport for the rest of the week. She asked the Council to reimburse their mileage. The Council agreed. However School 2 were concerned Y’s absence on Thursday and Friday would be marked as unauthorised. Mrs X says that rather than accrue significant absences School 2 felt Y should not be on roll at the school. She asked for a new transport risk assessment showing who was in charge of monitoring Y’s health, what needs to be monitored and an action plan if he suddenly becomes unwell. Mrs X also asked for Y to be educated out of cohort and for confirmation on when the EHC plan review would be held.
37. The transportation issues were resolved in early July 2022. Subject to further input from medical professionals Mrs X considered the risk assessment was acceptable and agreed to Y travelling on the mini bus. However, Mrs X was unhappy School 2’s admission pack indicated Y would not be educated out of cohort. She told the Council that if School 2 could not admit Y out of cohort she would like to look at mainstream schools that could. School 2 confirmed Y could start at the school immediately, and that he would be educated within the year group that corresponds to his chronological age.
38. Mrs X says the decision to educate Y in the year below his chronological year was recorded in his previous EHC Plan. She asserts the Council and School 2 were wrong to change this without consultation and outside the annual review process.
39. The Council issued an amended EHC plan naming School 2 on 15 July 2022. Mrs X did not want the plan amended to name School 2 and asked for a full review. Mrs X also told the Council that School 2 may not be able to meet Y’s dietary needs and that she would keep Y at home until a full review took place.
40. A senior officer met with Mrs X on 25 July 2022 to discuss her concerns and the next steps. The officer then sent Mrs X a draft amended plan for her comments. Ms X provided copies of reports and letters from professionals involved with Y. The officer also contacted Y’s Occupational Therapist (OT) and Speech and Language Therapist (SALT) on 27 July 2022 to request their input in the EHC Plan.
41. Mrs X set out her initial comments on the EHC Plan in late July 2022. In mid-August 2022 she asked to discuss her comments on the Plan with a senior officer and told them it was unlikely Y would return to school in September 2022. A face-to-face meeting was arranged for late August 2022 with another officer to discuss the content of the Plan and the amendments that needed to be made. Following this meeting Mrs X submitted her views for section A of the EHCP. Mrs X noted that input was still required from School 2 and she requested a personal budget for transport.
42. Y did not attend School 2 when term started in September 2022. Mrs X asked the Council to provide a package of Education Other Than At School (EOTAS).
43. Mrs X did not consider the transport arrangements were suitable as it was a one-hour trip each way to and from school, in a vehicle that did not have air conditioning for when temperatures reach 38/40 degrees, and with no support in an emergency other than to call 999. Mrs X was also concerned the passenger assistant was not aware of Y’s needs or how he should be supported.
44. The Council noted Y would be on the bus for about 45 minutes, that the majority of school days are in Autumn, Winter, and Spring so the possibility of reaching 38/ 40 degrees was minimum. If this were the case, Y would not travel. It also noted the risk assessment did not suggest Y needed 1:1 support and it does not provide medically trained staff on any vehicle.
45. Mrs X attended a virtual meeting with the Council and School 2 on 9 September 2022 to discuss her outstanding health concerns. Mrs X explained why Y was unable to attend school. She was unhappy that despite her explanations for Y’s absence, School 2 recorded his absence as unauthorised. Mrs X asserted Y should not have been added to the school roll.
46. On 15 September 2022 Mrs X chased a copy of the draft EHC Plan and asked about the Council’s intentions regarding Y being marked as unauthorised absence. Mrs X noted the school had confirmed it did not know Y well and she asserted this would mean that if Y did attend he would not receive a suitable and meaningful education. She could not see why Y should remain on roll at School 2.
47. The Council responded setting out a number of possible ways to proceed and asking which Mrs X wanted. These included taking Y off roll at School 2 with an EOTAS package in place while consulting with settings. It also set out options to transport Y to School 2.
48. Officers from the Council visited Y at home to carry out a well and safe check. Mrs X objected to this visit, which she considered unnecessary, unjustified and abusive. She says both the school and the Council knew why Y was not attending school and believes the visit was a retaliatory action in response to her complaint.
49. On 23 September 2022 the Council told School 2 to record Y’s absence as authorised from the start of term. It noted Y’s medical needs were currently under investigation, and there was a need for the Council to work with School 2 and Mrs X to ensure there was sufficient provision in place to ensure Y’s health safety and wellbeing while at school.
50. The Council issued a further amended EHC plan on 27 September 2022. Mrs X requested a meeting with the Council to discuss her parental representations. She considered the plan required extensive amendments and was concerned that amendments discussed at the meeting in August 2022 had not been included. Mrs X repeated her requests for Y to be removed from the roll at School 2 and for an EOTAS package to be put in place. Mrs X then advised the Council she wanted to Y to be electively home educated (EHE).
51. In response the Council confirmed it had incorrectly referred to the interim provision as EOTAS. It said EOTAS was only an option where the Council believed no school or other institution would be appropriate. It felt the evidence indicated Y was able to access a suitable education setting when the correct provision is in place. The Council confirmed it would work closely with Mrs X to ensure it found a suitable setting and in the interim would keep Y on roll at School 2 with a view to putting interim provision in place.
52. In addition, the Council advised Mrs X the recent home visit was not in relation to any safeguarding concerns. It said School 2 was following its statutory duty to ensure the safety of all children,
53. Mrs X made formal representations on the draft plan on 20 October 2020. The Council sent Mrs X a further amended EHC plan on 25 October 2022 and again invited her comments. Mrs X made representations on 9 November 2022 and nominated EHE. The Council then issued a final EHC plan naming School 2 on 16 November 2022.
54. Mrs X has appealed to the SEND Tribunal in relation to the latest EHCP.

Complaints

55. On 21 September 2022 Mrs X made a formal complaint that the Council had failed in its legal responsibilities in relation to Y’s EHC plan and his education. She complained the Council had failed to:
• communicate to the parents within six weeks of the date of the transfer when the EHC plan would be reviewed and whether the Council intended to initiate an EHC needs assessment;
• review the plan within 12 months of the EHC plan being made or last reviewed by the old council or three months from the date of transfer, whichever is later;
• provide a suitable, full-time education.
56. Mrs X asked the Council to issue a draft EHC plan within five days; secure EOTAS by the end of September 2022; provide financial compensation in respect of Y’s loss of education; and a financial remedy to acknowledge the family’s frustration time and trouble.
57. The Council responded on 18 October 2022, setting out the action it had taken since receiving Y’s file from the previous Council in December 2021. The Council acknowledged it did not inform Mrs X it intended to review the plan until 18 March 2022 and it apologised that this letter did not make clear when Y’s review would take place.
58. The Council noted it had considered the most recent amended plan was dated April 2021, following a review in November 2020. And that once a suitable setting was secured the school would be told to hold an annual review within three months.
59. It also noted it had issued amended draft plans in July 2022 and September 2022 and that following a further virtual meeting with Mrs X, an officer would amend and progress the plan.
60. In relation to Y’s education between 6 January 2022 and 21 July 2022 the Council said it was committed to ensuring it obtained a suitable placement for Y. It noted attempts had been made in January and February 2022 to arrange home tuition, and that Mrs X had advised she did not want this to go ahead.
61. The Council also set out the actions it had taken to identify a suitable school and ensure Y could attend. It noted that between 27 April and 18 July 2022 Mrs X raised numerous concerns around the suitability of the transport arrangements and kept Y at home. It also noted that when Y attended School 2 Mrs X raised concerns about his dietary needs and was unwilling to send Y back to School 2 until an annual review had been completed.
62. The Council considered School 2 was a suitable placement and advised Mrs X an EOTAs package would not be considered.
63. It also confirmed it would not offer a financial remedy for the loss of Y’s education as suitable education had been obtained and offered since Mrs X moved to Walsall in December 2021.
64. Mrs X was unhappy with the Council’s response and in November 2022 asked for her complaint to be considered further. She felt the Council had deflected her concerns rather than acknowledge the failures she complained about and attempt to put things right. Mrs X also asserted the Council had not acknowledged the statutory requirements relating to Y’s EHC plan or education, or the impact on their rights to challenge the Council. She considered the Council’s response contained inaccurate and misleading information and was indicative of a biased investigation, with key events and important communications between Mrs X and the Council being disregarded or distorted.
65. The Council responded in early December 2022 and concluded the initial investigation was thorough and took account of all relevant information, and that its response was factual based on the evidence it held.
66. It again noted the Council had sourced a placement at School 1 but, despite reasonable adjustments being agreed, Mrs X was unwilling to allow Y to attend. A place was then offered at School 2 in March 2022. The Council reiterated the start date of April 2022 did not happen as Mrs X raised concerns about transport and the risk assessment; a request to teach out of cohort and issues around Y’s dietary requirements.
67. The Council said the delay in starting a placement at Schools 1 and 2 impacted on the annual review being conducted. It noted it attempted to organise an annual review in July 2022, but Mrs X would not communicate with the officer. This led to a meeting in late August 2022.
68. In addition, the Council noted Mrs X had the right to appeal to the SEND tribunal when a final plan was issued on 18 March 2022 and again following the issue of a final amended plan on 16 November 2022.
69. Mrs X made a further complaint about the EHC plan review in late November 2022. She complained the Council had not followed proper process between July and November 2022 and had not complied with the statutory requirements for an EHC plan review. Mrs X asserted the Council’s failure follow statutory process rendered the final EHC plan issued on 16 November 2022 invalid.
70. The Council’s response to Mrs X’s complaint notes that Y was registered as a pupil at School 2. And that where a child or young person attends a school, under the SEND regulations 2014, the Council can require the school to arrange an annual review. Given Mrs X’s concerns about School 2 the Council considered that rather than asking the school to arrange a review, this should take the form of direct discussions between Mrs X and the SEN team.
71. It considered the meetings in July and August 2022 formed part of the review of Y’s EHC plan. Following these discussions amendments were made and a final plan was issued on 16 November 2022. This gave Mrs X appeal rights to the SEND tribunal.
72. As Mrs X remains unhappy she has asked the Ombudsman to investigate her concerns regarding the Council’s failure to follow proper process in reviewing Y’s EHC plan and the failure to provide a suitable education. Mrs X argues Y should have received a full-time suitable education between January and November 2022. She says there is no evidence that a full-time education was not in Y’s best interest. The medical evidence recommended home tuition on the grounds of significant anxiety and that Y struggles in a mainstream setting.
73. Mrs X disputes refusing home tuition for Y. She considered the communication regarding home tuition was very poor and the offers were based on the availability of the home tuition service, rather than Y’s best interest.
74. She also disputes that School 2 was a suitable placement and highlights concerns raised in September 2022 about Y’s dietary needs.
75. In addition, Mrs X is unhappy Y’s absence from School 2 was initially marked as unauthorised in September 2022. On 23 September 2022 the Council told School 2 to mark Y’s absence as authorised from the start of term. Mrs X also asserts that having directed School 2 to record Y’s absence as authorised in September 2022, the Council was under a duty to provide alternative provision for Y.
76. In response to our enquiries the Council has reiterated that following their move to Walsall the Council offered home tuition for Y which Mrs X agreed. There was a delay in carrying out an assessment due to ill health and Mrs X then refused the offer of home tuition.
77. It also says mainstream schools were identified as appropriate but Mrs X refused to work with the Council and the school. A specialist school was also identified as appropriate but Mrs X delayed the placement due to transport arrangements and her request that Y be taught out of cohort. The Council says it has ensured all placements were readily available but encountered barriers. Y is currently home educated as requested by Mrs X.

Analysis

78. Legislation and Government guidance set out a clear procedure and timeframe for carrying out a review of an EHC plan where a child or young person moves to another council. The documentation provided shows the Council did not follow this procedure or meet this timeframe.
79. The Council confirmed Y’s EHC plan had been transferred, but accepted it did not tell Mrs X, within six weeks of the date of transfer, when it proposed to review Y’s plan. The Council says it repeatedly told Mrs X the review would take place when Y was on roll at an educational setting. But there was not set date or timeframe for this. It also failed to review Y’s plan within the statutory timeframe, or the timeframes set out in its own policy. As Y’s plan was last reviewed in November 2020 and was transferred to the Council in December 2021 the Council should have reviewed Y’s EHC plan by March 2022.
80. The Council’s chronology and its response to Mrs X’s complaint refers to an EHC plan issued on 18 March 2022. If this were the case and Mrs X had a right of appeal to the SEND tribunal this would restrict out jurisdiction to investigate her complaints. However, the Council has not provided a copy of a final EHC plan dated 18 March 2022. Indeed, there is no evidence the Council issued a plan on 18 March 2022 naming School 1 for the remainder of the academic year and School 1 from September 2022.
81. The Council did write to Mrs X on this date, but this was to advise her of the school places and the intention to amend Y’s plan following a review. Although it provided details of appeal rights, the Council did not send her a final amended EHC Plan or make a decision Mrs X could challenge via the tribunal. The Council provided Mrs X with a copy of the existing EHC Plan issued by the previous authority. This did not give rise to any new right of appeal to the Tribunal.
82. It was the Council’s intention to hold a review once Y was settled at school so that it could obtain the school’s input. The Council’s response to Mrs X’s complaint says that as this was not possible it decided the review should take the form of direct discussions between Mrs X and the SEN team. It suggested the meetings in July and August 2022 formed part of the review of Y’s EHC plan.
83. The Council has since confirmed the meetings in the summer of 2022 were not part of the annual review. The documentation shows the meeting in July 2022 was to discuss Mrs X’s concerns about the refusal to hold an annual review and issuing of a final plan.
84. The legislation and SEND code of practice set out the procedure to follow for reviews where a child or young person does not attend a school. There is no evidence the Council followed this procedure. It did not hold a formal review meeting or invite anyone other than Mrs X to any meetings. The Council sought advice from Y’s OT and SALT, but there is no evidence it contacted the other professionals working with him to either request reports or invite them to a review meeting. Nor did it prepare a report following any meetings. There was also a delay in issuing a final plan. The Council did not issue a final amended EHC plan until 17 November 2022.
85. The Council’s failure to follow the correct procedure and meet the required timeframes is fault.
86. This failure to follow proper process and the delay in reviewing and amending Y’s EHC plan following his transfer in December 2021 caused Mrs X distress and frustration and put her to unnecessary time and trouble. It also delayed her ability to exercise her right of appeal to the SEND tribunal in relation to the named setting and content of the plan. I consider the Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.
87. Mrs X also complains the Council has failed to provide Y with a full-time suitable education between January and November 2022. It is clear that Y has not received an education during this period, but I am not persuaded this is all due to fault on the part of the Council. The Council offered a home tuition service while it identified a suitable school for Y. Mrs X initially agreed to this and following an assessment the service offered to provide two hours tuition each day, five days a week. Mrs X says the Council then reduced it to six hours each week with no explanation. The documentation shows Mrs X asked for tuition between 10 and 12 each day to allow Y to carry out his other daily activities and routines and so that they could transport their other two children to and from school. The tuition service could only accommodate this on three days, but there is no suggestion they were unable or unwilling to provide the remaining four hours at another time.
88. The tuition was intended to be a short-term measure and there is no evidence Mrs X asked for full time provision, or more than 10 hours a week tuition in January or February 2022. Mrs X disputes that she told the tuition service she did not want tuition in February 2022. However, based on the documentation available it is clear Mrs X did not agree with the provision offered, and she did not pursue it further after the Council’s email 16 February 2022. Had Mrs X wanted to take up the offer of tuition, I would have expected there to be further communication on this issue after 16 February 2022.
89. The Council also identified placements at two schools in March 2022, but Mrs X had concerns about their ability to meet Y’s needs and chose to keep him at home. School 1 is a mainstream school and had agreed reasonable adjustments in order to meet Y’s needs. School 2 is a specialist school. The Council considered both were suitable. It is not the Ombudsman’s role to determine whether the schools were suitable. This is a decision for the Council to make, taking account of all the relevant evidence.
90. Mrs X disagrees with the Council’s decisions, but there is no evidence of fault in the way they were taken.
91. I do however consider the Council should have provided alternative provision between September 2022 and November 2022. The Council accepted Y was unable to attend School 2 during this period and asked the school to record his absence as authorised. It also told Mrs X it would keep Y on the roll and arrange interim provision in the form of tuition. However, I have not received any evidence the Council arranged or offered any tuition between September and November 2022.
92. I recognise Mrs X had not accepted the Council’s earlier offer of tuition and also note that during this period Mrs X told the Council she wanted Y to be electively home educated. It is therefore possible that Mrs X would not have accepted the tuition offered, but this does not absolve the Council of its responsibility to ensure an education was available to Y.
93. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
94. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 to £2400 per term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.

In this instance I consider a payment of £900 a term for the term and a half he missed would be appropriate.

Back to top

Agreed action

95. The Council has agreed to:
• apologise to Mrs X and Y for the delays the EHC process and in issuing a final EHC plan. And for the failure to provide alternative educational provision between September 2022 and November 2022. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay £1,350 to the family to acknowledge the impact of the loss of education on them between September 2022 and November 2022; and
• pay £350 to Mrs X to recognise the distress and frustration she experienced as result of the Council’s failure to follow proper process and the delay in reviewing and amending Y’s EHC plan.
96. The Council should take this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

Back to top

Final decision

97. The Council’s failure to follow proper process and the delay in reviewing and amending Y’s EHC plan is fault. This fault has caused Mrs X an injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman