Summary: Mrs X complained the Council did not update or review her son’s Education Health and Care Plan (“EHCP”) in good time and was poor in its communications, resulting in distress and missed provision. We found the Council at fault. We recommended it provides an apology to Mrs X, pays her £500 for distress, pays her £100 for time and trouble, considers a further remedy upon issuing a final EHCP and acts to prevent recurrence.

The complaint

1. Mrs X complains the Council:
• Did not update her son, Y’s Education Health and Care Plan (“EHCP”) in February 2022 as agreed, resulting in missed Speech and Language Therapy (“SALT”) provision.
• Did not address her concerns from June 2022 that Y’s school was not meeting his EHCP provision and he was not accessing education.
• Did not review Y’s EHCP in September 2022 or ensure it issued a final EHCP by 31 March 2023. This meant time for planning and arranging support for Y’s post 16 education has been lost. Y had unmet needs because his EHCP was not up to date and it delayed her right to appeal.
• Was poor in its communications, putting her to time and trouble chasing responses and seeking solutions to her complaint, causing distress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

4. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
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.
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)

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How I considered this complaint

7. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
8. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

9. Councils are responsible for meeting the education provision in section f of an Education Health and Care Plan (“EHCP”) EHCP.
10. Councils must review an EHCP at least every 12 months.
11. A council must review an EHCP in sufficient time prior to a child moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.
12. For young people moving between post-16 institutions, a council should normally complete review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year.
13. A council may ask the school to arrange a review meeting on its behalf.
14. Within 2 weeks of a review meeting the school must provide a report to the council with any recommended amendments.
15. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
16. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
17. If a child’s parent asks for a particular school the council must name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
18. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
19. Where the council does not agree the suggested changes it may still issue the final EHCP.
20. In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Council’s duty to provide education to children out of school

21. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
22. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.

Council’s power to ensure school attendance

23. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
24. Sections 436 to 447 cover councils’ duties and powers under the Act.
25. Section 436 of the Act says councils must identify children not receiving an education. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
26. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.

Ombudsman’s approach

27. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations based on examples of good practice seen. It said 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 on a day-to-day basis) 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 enforce 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.

What happened

28. Y was on roll at School A from September 2020.
29. The Council issued Y with an EHCP in September 2021. This records Y is currently out of school. His family say he is unable to attend for health reasons and School A is not suitable to meet his needs.
30. The EHCP named a setting; special school, placement to be confirmed.
31. Section F provided for:
• Teaching strategies
• A setting with small class sizes
• Inclusion in a small social skills group
• Weekly 1:1 Occupational Therapist (OT) support
• Weekly 45 minute 1:1 self regulatory program
• 30 minutes daily sensory diet created by OT
• Frequent team around the child meetings
• Psychoeducational programmes
32. The EHCP did not include any provision for SALT or a quiet setting.
33. Mrs X told the Ombudsman it was agreed for Y to attend School B, an independent specialist school, from November 2021 on a trial basis. She says the Council told her it would confirm the placement in February 2022 and then update the EHCP. It also said it would add SALT provision at the same. Mrs X said she did not appeal the EHCP on this basis. However, the Council did not update the EHCP in February 2022.
34. In response to enquiries the Council said:
• It had no evidence of an agreement to add SALT to Y’s EHCP in February 2022. SALT was being provided as part of the first EHCP.
• It enclosed correspondence showing:
1. Y attended School B on a trial basis with a review due in February 2022.
2. School B arranged a placement review meeting in February and sent the Council its report in March 2022.
3. The placement review included a document reporting parent views. This showed Mrs X was happy with School B but Y was still unable to access any health support despite requests. Mrs X had contacted the NHS autism team again in February. Further, Mrs X wanted recommendations from the previous SALT assessment added to the EHCP as previously agreed.
35. Mrs X told the Ombudsman she tried to contact the Council from June 2022, with concerns about provision in School B.
36. The Council has provided correspondence showing School B had a meeting with Mrs X in July 2022 to discuss supporting Y back into school.
37. Mrs X says the Council did not review Y’s EHCP in September 2022.
38. The Council’s records show Mrs X told the Council in September 2022 that Y would not return to school until the Council reviewed his EHCP as School B could not meet his needs and this was making him unwell.
39. On 7 September the Council asked School B to hold an annual review meeting and then send it the paperwork.
40. In October Mrs X complained:
• The Council did not update Y’s EHCP in February 2022 to name his placement as School B and to include SALT.
• She is unhappy with the Council’s response to her concerns about School A. She emailed the Council on 28 June and 4 July, but received no reply until July when her councillor chased this. The Council then said it would discuss with the school.
• She contacted the Council many times from July regarding the EHCP review due in September but received no substantive response.
• She contacted the Council again about issues in school and was promised a call back that was not received.
• She is concerned about her son not accessing education or receiving EHCP provision.
41. The Council responded in January 2023. In summary:
• It apologised for the delay in amending Y’s EHCP. This was due to high demand and it had taken steps to increase capacity.
• It apologised for poor communications since she raised concerns raised about School B in June. It would ensure an officer made contact to address concerns. It had reminded the team of the importance of timely communications and making cover arrangements during leave.
• It was the school’s duty to hold the annual review and it prompts and chases schools to do this. In September it asked School B to arrange the review. It would again remind the school of its statutory duty.
• It would amend the EHCP upon receipt of annual review paperwork. It would also explore issues related to EHCP provision.
• She could contact the Ombudsman.
42. Mrs X complained to the Ombudsman on 28 February 2023. She said the Council had still not started Y’s EHCP review. She explained she contacted the Council because School B was not delivering OT or SALT and had moved Y to a noisy classroom when he needed a quiet environment. Y’s anxiety increased because School B was not delivering EHCP provision and this affected his attendance. He did not attend for a long period in summer 2022 and his attendance had been patchy since. He was currently out of school.
43. In response to enquiries the Council provided correspondence exchanged with Mrs X in April 2023. This suggest Y was not attending school at that time due to a classroom change. The Council’s view was that Y should be in school and that Mrs X should resolve this with the school.
44. The Council added it held an annual review meeting on 4 March 2023 and had not yet issued a final EHCP following this.
45. In comments on a draft decision Mrs X said:
• She enclosed an email to evidence the Council agreed to add SALT to the EHCP later. Had she known it would not do so she would have appealed the EHCP and the Tribunal would likely have included SALT.
• SALT is referenced a number of times in the EHCP.
• She could not raise the lack of OT with the Council as it ignored her attempts at contact.

Findings

46. Mrs X had a right to appeal the September 2021 EHCP. However, I consider it was not reasonable for her to appeal as she expected the Council to update and issue a further EHCP in February 2022. Therefore, I will exercise discretion to investigate.
47. The Council did not update Y’s EHCP to name his school placement in February 2022 as agreed. This is fault. Mrs X missed the opportunity to appeal the EHCP. This is injustice. I note the Council apologised, explained the reason for delay and outlined action to prevent recurrence. On the evidence seen I cannot say, even on balance, the Council had agreed to include SALT at this stage. Therefore, I cannot say Y missed provision.
48. On review of the further evidence provided by Mrs X, I note the Council said it would consider including some information about SALT in the EHCP. It did not agree to include provision and I cannot say what the Tribunal would decide.
49. On the documents seen it appears Mrs X raised concerns with the Council in June 2022 that Y was out of school. The Council satisfied itself School B was addressing this in the first instance. I find no fault.
50. In September 2022 Mrs X told the Council Y would no longer attend School B. The Council therefore should have taken action to enforce attendance or otherwise ensured Y received alternative provision. However, the Council took no action. This is fault. On review of the Council’s recent communications it appears it considered School B remained available and suitable for Y to attend. In those circumstances it would not need to provide alternative provision. However, there was a missed opportunity for it to consider enforcing attendance. This is injustice. I note the Council accepted poor communications with Mrs X from June 2022 to January 2023 and apologised. It also outlined action to prevent recurrence.
51. I have not seen evidence Mrs X told the Council School B was not meeting Y’s OT provision. I cannot hold the Council responsible for missed provision when it has not had chance to address this. I find no fault.
52. Y’s EHCP did not provide for SALT or a quiet classroom environment, Therefore the Council had no duty to ensure these were met, even if raised. I find no fault.
53. The Council has a statutory duty to review an EHCP at least every 12 months so Y’s review was due in September 2022. In addition it had a duty to complete the review by 31 March 2023. While the Council could ask School B to arrange the review meeting the duty remained on the Council. And Mrs X told the Council in October the school had not done this. Despite this, the Council did not follow up with the school until January 2023 and did not start the review until March 2023. This is fault. Mrs X and Y have suffered distress and uncertainty and a delayed right to appeal. This is injustice. However, I cannot say Y has missed provision due to the fault as the Council has not yet confirmed the provision in a final EHCP.
54. The Council delayed responding to Mrs X’s complaint from October 2022 to January 2023. This is fault. Mrs X was put to avoidable time and trouble. This is injustice.
55. The Council’s actions to complete Y’s EHCP review following the March 2023 meeting are ongoing. It is not appropriate for me to consider any complaint about new or ongoing matters as these are premature. However, Mrs X may raise a new complaint to the Council in the first instance about any delays in completing the review from March or any other new issue.

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Agreed action

56. To remedy the injustice set out above I recommend the Council carry out the following actions:
57. Within one month:
• Provide Mrs X with an apology for its delay in arranging Y’s annual review and delayed complaint response.
• Pay Mrs X £500 for distress and uncertainty.
• Pay Mrs X £100 for time and trouble.
• Upon issuing Y’s final EHCP consider if Y missed out on any provision due to its delay and consider a remedy if so. Write to Mrs X with its decision and reasons.
58. Within three months:
• Provide guidance to staff working in children’s education to ensure they are aware it is the Council’s statutory duty to complete an EHCP review within the statutory timeframes. And it retains responsibility even when it has asked the school to arrange the review meeting.
59. The Council should provide us with evidence it has complied with the above actions.
60. The Council has accepted my recommendations.

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Final decision

61. I find the Council at fault because it did not update Y’s EHCP in February 2022 as agreed; it did not review his EHCP in September 2022; and it did not promptly address Mrs X’s concerns about Y’s access to education. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman