Summary: delay by the Council amending B’s Education, Health and Care (EHC) Plan following an emergency review meant he started special school a term later than he should have done, and the Council did not check he was receiving suitable education when he attended school part-time while waiting for the amended Plan. We have recommended a symbolic remedy for the injustice this caused.

The complaint

1. Mrs M complains about delays by the Council amending her son B’s Education, Health and Care (EHC) Plan following an urgent review held at his school on 7 June 2022.
2. Mrs M complains B was out of full-time education from 19 May 2022 until 27 February 2023.

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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. Once 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

5. I have considered information provided by Mrs M and information provided by the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council.
7. B started his secondary education at a mainstream school in September 2021.
8. He began to struggle at school. He received a fixed term exclusion for disruptive behaviour on 19 May 2022. He said he wanted to be permanently excluded because he could not cope. He returned to school on a reduced timetable. The school requested an early review of B’s EHC Plan and held a review meeting on 7 June 2022. Mrs M wanted B to move to a special school. The school supported her views.
9. Mrs M complained to the Council on 23 August 2022 about the lack of progress.
10. The Council says it notified Mrs M that it intended to amend B’s EHC Plan on 20 October 2022. Mrs M says she received the notification on 15 November 2022.
11. The Council issued an amended EHC Plan on 14 December 2022 which said B would continue to attend his current mainstream school because the special school Mrs M wanted B to attend had said it could not meet his needs.
12. Following an assessment by an Education Psychologist, the Council decided the special school could meet B’s needs. The Council issued a further amended Plan on 25 January 2023 which said B would attend Mrs M’s preferred special school.
13. Mrs M complains she had to ‘chase’ the schools for their consultation responses.
14. On 27 February 2023, B transferred to the special school.

Complaint 1: delays amending B’s EHC Plan

15. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
16. The procedure for assessing a child’s special educational needs, issuing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
17. A Plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s Plan.
18. The law says that Councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
19. The school held an ‘urgent’ review of B’s Plan on 7 June 2022. The school had excluded B for disruptive behaviour and was concerned it could no longer meet his needs. Both the school and Mrs M thought B needed a special school.
20. Following the review meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
21. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting. The Council must issue the final Plan as quickly as possible and within a further eight weeks.
22. Following the review meeting on 7 June 2022, the Council should have issued B’s amended EHC Plan by 30 August 2022. The Council issued the final Plan on 25 January 2023, twenty-one weeks late. This was fault.
23. Where we find fault by a council has caused an injustice, we may make recommendations. We may recommend service improvements to prevent similar problems happening to others, and we may recommend a personal remedy for the impact on the person making the complaint.
24. I understand the Council’s SEND service faced significant challenges at the time which affected many children and young people’s EHC Plan reviews. The issues were identified by Ofsted during an inspection, and the Council devised a ‘recovery plan’ to address them. I will not, therefore, make service improvement recommendations as I am satisfied Ofsted and the Council identified the problems and put in place plans to address them.
25. I understand there were also technical problems with the Council’s secure email system at the time which delayed the delivery of documents, including consultation paperwork.
26. The delay amending his EHC Plan had a significant impact on B. He could have started at a special school at least one term sooner if the Council had complied with the 12-week timetable to amend his EHC Plan. I will recommend a remedy for the impact on B, but first I will consider the arrangements that were made for his education between 19 May 2022, when he stopped attending school regularly, and 27 February 2023 when he started at a special school.

Complaint 2: B’s education between 19 May 2022 and 27 February 2023

27. B stopped attending school full-time on 19 May 2022. He returned to school after a fixed term exclusion on a reduced timetable. At the ‘emergency’ review of B’s EHC Plan, the school said it was unable to meet his needs.
28. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
29. 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)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
30. 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)
31. The Local Government Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of sight? Ensuring children out of school get a good education, published in July 2022)
32. The Ombudsman made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to require attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
33. The Council accepts it failed to check B was receiving suitable education, and the provision in his EHC Plan, once he stopped attending school regularly.
34. The Council said it has reminded all staff of the Council’s duties and arranged training. The Council also carries out regular supervision with casework staff. I will not, therefore, make service improvement recommendations as I am satisfied the Council had identified the problems and put in place plans to address them.
35. The Council says B’s school offered a reintegration plan following his fixed term exclusion on 19 May, but his parents declined because they were concerned about his mental health. The Council says the school sent work home in core subjects and kept in daily contact with Mrs M. B returned to school on 15 June. The Council says the school offered one-to-one support to reintegrate B to mainstream lessons, but Mrs M remained concerned about B’s mental health and declined the school’s offer. Instead, B attended the learning support unit where he received a bespoke curriculum from dedicated support staff. This continued until B transferred to a special school after the half-term break in February 2023.

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Agreed action

36. We have published guidance to explain how we recommend 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. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
37. Delay by the Council amending B’s EHC Plan meant he started special school a term later than he could have done. He continued to attend school for half days and received bespoke tuition from dedicated support staff. However, because the Council did not check on the provision, I cannot be sure this was meeting his needs. In any event, it was not the same as attending a special school full-time.
38. To recognise the impact on B’s education, and the frustration caused to Mrs M, I recommended the Council apologises and offers a symbolic payment of £1,000. This is in line with our remedies guidance and takes account of B’s special educational needs, the support he continued to receive at school, and the fact he now attends a special school. It includes a small symbolic payment to recognise Mrs M’s time and trouble, including the frustration caused by problems with the Council’s secure email system.
39. I recommended the Council takes this action within a month of my final decision.
40. The Council accepted my recommendations.

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Final decision

41. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman