Summary: Mr X complained the Council failed to provide Z with a suitable education while he was out of school, failed to complete the annual review of Z’s Education Health and Care plan within the statutory timescales and to communicate properly with him about Z’s education. We have found fault by the Council causing injustice. The Council has agreed to remedy this by apologising to Mr X and Z, making payments to recognise the impact on Z of the missed education and to reflect Mr X’s distress and worry, reporting to us on the current position regarding Z’s education and making service improvements.

The complaint

1. The complainant, who I am calling Mr X, complains the Council has failed to deliver his son, who I am calling Z’s special educational needs (SEN) and alternative education provision. Mr X says the Council:

• accepted, at Z ’s Education Health and Care (EHC) plan review in May 2022, his current placement at School A was no longer suitable;
• agreed to find Z another placement; and
• if Z could no longer attend School A from September 2022, to provide him with an interim alternative provision package until he could start at the new placement.

2. But the Council failed to:

• provide Z with the promised alternative provision package from September 2022. Z was unable to attend School A and another placement had not yet been arranged;
• make any alternative provision for Z from September 2022. Some provision was put in place from March 2023, but this was not enough to provide Z with a suitable education;
• communicate properly with them about Z’s educational provision; and
• complete the review and update of Z’s EHC plan.

3. Mr X says, because of the Council’s failures, Z has not been provided with a suitable education and has missed out on his SEN provision from September 2022 to date.
4. This has affected Z and the whole family’s wellbeing and caused them a great deal of stress. He and Z’s other parent have had to change their jobs to provide support for Z at home and pay for his private tuition and educational resources.
5. Mr X wants the Council to pay redress for the impact of the missed education on Z and the family and make improvements to its SEN service.

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The Ombudsman’s role and powers

6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
7. 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)
8. 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)
9. 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

10. I spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
11. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education Health and Care Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their 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.
13. 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.

Arrangements for reviewing an EHC plan

14. Councils oversee delivery of EHC Ppans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
15. EHC plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
16. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC plan is to continue; whether it needs changing or if it is to end.
17. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person 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 within four weeks of the annual review meeting.
18. Following comments from the child’s parent or the young person, if the 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 EHC plan and proposed amendments to the parents. And a recent court case stated amended EHC Plans should be issued within 12 weeks of the annual review.
19. 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.

Alternative provision

20. 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)) We refer to this as section 19 or alternative education provision.
21. 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))
22. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
23. We have issued 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. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
24. We 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 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;
• decide, based on all the evidence, whether to require attendance at school 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

25. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

26. Z has had an EHC plan for a number of years. His most recent final EHC plan is dated February 2017. In September 2020, his placement changed to an independent specialist school, School A.
27. In May 2022, at a review meeting about Z’s plan, Mr X asked the Council to find a new school for Z as his placement at School A had broken down. Mr X says, following the meeting, the Council’s SEN officer agreed to consult with other schools and that the Council would arrange an interim education package for Z if he could not return to School A in September.
28. The Council consulted School B. They said they could offer Z a place but did not currently have capacity and could not guarantee a place would be available for September 2022.

September 2022: Z did not return to School A

29. School A contacted the Council on 2 September. It had not heard further from the Council about a change in Z’s placement but said Mr X had told it Z was no longer a student at the school.
30. The Council did not reply to School A. On 26 September, School A chased the Council for a response.

Mr X’s complaint to the Council

31. Mr X complained to the Council. He said Z:

• was on the waiting list for School B. The Council agreed, following the May 2022 meeting, it and School B would provide an alternative provision package until Z could start there;
• had been out of school since 4 September and no alternative provision had been made; and
• had recently been diagnosed with further conditions. The lack of education and routine was affecting Z’s mental health and the family’s wellbeing. They also now had the additional expense of supporting Z at home.

32. Mr X said he had been trying to contact the SEN team through the Council’s call centre since the start of the school year but had not had any response.

October 2022: Council asks School A to provide an interim package

33. The Council told School A;

• It had suggested to Mr X it would ask School B’s outreach team to provide an interim package for Z until he could start there;
• It had given Mr X the impression Z did not have to return to School A in September and the Council would manage Z’s interim package until a place at School B was available; and
• As School B had said it could not provide this interim package, and Z was still on School A’s roll, it should have asked School A to provide this package for Z.

34. The Council told Mr X it now had a fuller understanding of the situation and had asked School A to provide the interim package until Z could start at School B. It apologised for its contact with him earlier that month.

Council’s response to Mr X’s complaint

35. The Council told Mr X:

• Following the May meeting, it established School B could not provide Z with an interim package. It accepted it should have told Mr X at the time and apolgised for not doing so;
• It was made clear at the May meeting Z would remain on School A’s roll until he could start at School B. But it was understandable Mr X felt Z was not expected to return to School A in September and an interim package would be provided;
• School A told the Council in September Z had not returned to school. Because of miscommunication the Council had not asked School A to provide the interim package from the start of term. It apologised for this. It had now asked School A to put an interim package in place for Z;
• It accepted Mr X had not been kept informed. It apologised for the distress caused to Z and the family by the delays and miscommunication; and
• It accepted it had not been able to offer the level of service expected because of the increased demand for SEN services. The Council continued to invest significant extra resources into the service and increase the number of caseworkers and training.

November 2022: Mr X is unhappy with the interim package

36. Mr X told the Council he was not happy with the education package provided by School A. It had sent only four packs of subject material, and without any guidance or support.
37. Mr X asked the Council to provide Z with suitable alternative provision provided by an external agency and fully qualified tutors, including complementary activities on a 1:1 basis.
38. The Council says it asked School A to arrange an external tuition package for Z But this was not put in place because there was a dispute between the Council and School A about funding the cost of the package.
39. School A says, in the meantime it continued to provide Z with work packs to complete at home. Its offer to support this through Zoom calls with Z were declined.

January 2023: emergency annual review meeting

40. At the meeting:

• The Council noted the request for a change of placement and that Z’s EHC plan should be amended;
• The Council told Mr X it made sense for School A to source a tutor package through an external agency because Z was still on its roll; and
• Mr X said they did not want any further involvement with School A. Z’s place there should be terminated.

January to February 2023: Council’s contact with School A

41. School A had still not arranged an external tuition package for Z because of its dispute with the Council about funding.
42. At the May 2022 meeting, the Council had agreed to give School A six weeks notice to end Z’s placement. Following some contact about this, it was agreed Z’s placement at School A would finish at the end of February 2023.

Council’s final complaint response

43. In its response to Mr X the Council;

• accepted there were delays in arranging the interim education package. It had delayed asking School A to put a package in place. School A then asked for additional funding to arrange an external tuition package. It had asked School A again to arrange this in January 2023;
• confirmed Z’s placement at School A was ended on 23 January, effective from 1 March. It would now arrange Z’s interim package until another school place was found; and
• upheld Mr X’s complaint about its delays and lack of communication. It offered a payment of £250 for his time and trouble.

March 2023: Council looks for a tutor package for Z

44. The Council contacted external tutor agencies about a tuition package for Z, to include 10 hours of Maths, English, Science and IT together with mentoring for emotional support and social skills. It also consulted with schools about his new placement. School B confirmed Z was still on their waiting list.
45. It updated Mr X and told him it would amend Z’s EHC plan to take account of the reports he had provided and the annual review information from School A.

The alternative provision package from March to July 2023

46. I understand an external tutor engaged by the Council provided Z with three hours of face to face 1:1 Maths tuition twice a week from 15 May. Another proposed English tutor was only able to offer online tuition. Mr X declined this offer because of Z’s difficulty, due to his conditions, in engaging with online tuition.
47. The Council was unable to find tutors for other subjects and did not find a provider for emotional support and social skills mentoring.

Provision from September 2023

48. Mr X told the Council he was not happy with the previous tuition provider. The Council approached another tuition and mentoring support provider about alternative provision for Z from September 2023.
49. In August 2023 the Council proposed a tutor package of 15 hours a week. Mr X replied asking for an additional 10 hours a week of therapeutic social and other additional learning.
50. Mr X says he has heard nothing further from the Council about Z’s alternative provision package or any new placement for this academic year, 2023/2024. The Council has not yet sent out a draft amended EHC plan.

My analysis – was there fault by the Council causing injustice?

Failure to complete the annual review within the statutory timescales

51. The annual review meeting took place in May 2022. The Council should have told Mr X by June 2022 whether it intended to continue, change or end Z’s EHC plan. It did not do this.
52. It told Mr X in January 2023 Z’s plan should be amended. The Council should have sent Mr X the proposed changes and completed the final amended plan within 12 weeks of the May 2022 review meeting. It has still not sent Mr X its proposed changes to the plan.
53. The Council has failed to complete the annual review of Z’s EHC plan within the statutory timescales. This is fault.

Impact of this fault

54. The current plan, which the Council is using in its consultations with other schools, is very out of date. The delay in completing the annual review and Z’s final amended EHC plan has caused Mr X frustration and uncertainty about the outcome.
55. Mr X is unable to appeal to the SEND tribunal about the content of the plan or Z’s placement until the final plan is issued. His opportunity to appeal is delayed until this happens.

Failure to provide Z with a suitable education

56. The Council knew in May 2022 Z’s placement at School A had broken down. Based on the information seen, my view is the Council accepted it was not reasonably practicable for Z to return to School A in September 2022 and it would need to make alternative provision for his education from September 2022 until a new school placement was found.
57. It was initially hoped that School B would provide this alternative provision through an interim education package until a place became available for Z there. But the Council was told, before the start of the 2022/2023 academic year, School B could not provide this.
58. For whatever reason, the Council appears to have overlooked what was discussed and agreed with Mr X at the May 2022 meeting. It did not contact Mr X to confirm the arrangements for Z’s education from September 2022 or take any steps to put alternative provision in place for him.
59. Because of this, no alternative provision was arranged for Z for the start of the new school year. My view is the Council failed to ensure Z was provided with a suitable education from September 2022, and this was fault.

Impact of this fault

60. I have considered what the Council has said about the alternative provision it asked School A to make for Z while he was still on its roll.
61. Firstly, the provision made by School A, which I understand was limited to sending out some packs of subject material, appears to have been very minimal.
62. And any dispute between the Council and School A as to who was to fund the cost of an external tutor package does not negate the Council’s statutory duty to ensure Z was provided with a suitable education while he was unable to attend school.
63. The alternative provision the Council arranged for Z from March 2023, after his placement at School A had formally ended, also appears to have been limited. Z was provided with only six hours of Maths tuition a week from 15 May 2023 until the end of the summer term 2023.
64. He has missed out on tuition in his other subjects and all his SEN support.
65. I understand that, as yet, the Council has not put in place any provision for Z’s education for this school year 2023/2024.

Remedy payment for Z’s loss of educational provision

66. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
67. Z has not been provided with any of his SEN support since September 2022. I consider he was not provided with any meaningful alternative provision from September 2022 to 15 May 2023, and only very limited provision from 15 May until the end of the summer term 2023. And no provision so far, from the start of term in September 2023.
68. Taking all of this into account, I consider the payment should be at the top of the scale.
69. Mr X has also been caused worry and distress about the Council’s failure to provide Z with a suitable education during this time.

Communication failures

70. The Council accepted, in its responses to Mr X’s complaint, it had not kept him informed, there had been delays and poor communication. It said it was continuing to invest significant extra resources into the SEN service and increase the number of caseworkers and training.
71. The communication failures caused Mr X avoidable upset and frustration. The Council offered a payment of £250 to reflect this.

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Agreed action

72. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its failure to complete the annual review of Z’s EHC Plan, provide Z with a suitable education from September 2022 and its communication failures;
2. apologise to Z for its failure to provide him with a suitable education from September 2022;
3. 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;
4. pay Mr X £750. This is made up of £500 to reflect the distress and worry caused by the Council’s failure to provide Z with a suitable education for over a year and complete the annual review, and lack of opportunity to appeal to the SEND Tribunal, and £250 to reflect the upset and frustration caused by its communication failures. This is a symbolic amount based on our guidance on remedies;
5. pay Mr X £2,400 for each school term Z missed out on the SEN provision and education provision he should have received from September 2022 to 14 May 2023 and from September 2023 to the date of my final decision. I have assessed this as being 2.75 school terms. And £2,000 for each school term from 15 May 2023 to the end of the summer term 2023. I have assessed this as being 0.75 of a school term. Making a total payment of £8,100. This is a remedy for Z’s benefit to recognise the injustice the missed education has caused him; and
6. report back to us on the action it has taken to find a new school place for Z, arrange a suitable alternative provision package and complete the annual review of Z’s EHC Plan.
73. And within three months of the date of the final decision, as service improvements, the Council has agreed to:
1. Report to us on the review of its commissioning of alternative education providers so that pupils out of school can receive the same education as their peers in school. It told us in response to another complaint it has already started this;
2. Provide us with a further overview of how it considers its improvements are working in practice in respect of preventing delays in issuing EHC Plans after annual reviews. This should also include an update on the progress made since the overview it provided to us earlier this year in response to another complaint; and
3. Provide us with an update about the extra resources it told Mr X it was continuing to invest in its SEN service to increase the number of caseworkers and training.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed my investigation of this complaint and have found fault by the Council causing injustice. The Council has agreed to carry out the above actions as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman