Summary: Miss E complained the Council failed to provide her son with any education or specialist provision since it issued his final Education, Health and Care plan in November 2021. She adds it failed to carry out an annual review within the correct timescales. We find the Council was at fault for failing to secure the education and specialist provision in Miss E’s son’s Education, Health and Care plan. It also failed to follow statutory timescales after the annual reviews. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Miss E complained the Council has failed to provide her son, F, with any education or specialist provision since it issued his final Education, Health and Care (EHC) plan in November 2021. She adds it failed to carry out an annual review within the correct timescales.
2. Miss E says F’s development has suffered because of the Council’s failures. She also says the matter has caused her distress and upset.

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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. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. 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.
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)

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How I considered this complaint

9. I considered information from Miss E. I made written enquiries of the Council and considered information it sent in response.
10. Miss E 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

Education, Health and Care plans

11. 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. Section F sets out the special educational provision needed by the child or young person.
12. 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). 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)

Annual reviews

13. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
14. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
15. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
16. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.

Alternative provision

17. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
18. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.

What happened

19. This chronology provides an overview of key events and does not detail everything that happened.
20. F has special educational needs. He was attending a nursery but left in October 2021.
21. The Council issued F’s first EHC plan in November. It did not name a school in Section I of the plan. It made Miss E aware of her right to appeal to the SEND Tribunal if she disagreed with the plan.
22. The Council consulted with Miss E’s preferred school the following week. The school responded and said it did not have any spaces.
23. The Council also consulted with another school (School B). School B contacted the Council in December and said it could offer F a place, but it might need extra 1:1 funding. It said it would meet with Miss E and F.
24. Miss E and F met with School B in January 2022. It contacted the Council after the meeting and said it would need the 1:1 funding to meet F’s needs.
25. The Council considered the matter at its placement panel in February. It agreed to provide the 1:1 funding so F could attend School B.
26. Miss E raised concerns about the transport to School B and the distance it was from her house.
27. The Council held an annual review of F’s EHC plan in April. Miss E and F’s previous educational setting raised concerns about F travelling in a car. They said he could not tolerate being in traffic and the distance to School B was too far. The Council said it would review F’s EHC plan and see if he needed any further assessments. It also discussed making a referral to Access to Education. This is a short-term education service for children and young people who cannot attend school through exceptional circumstances. Miss E said she did not want people coming to her house as it would not work for her and her family.
28. School B retracted its offer as it was concerned F’s paperwork did not reflect his needs and it was out of date.
29. The Council considered F’s case further in May. It decided to consult with schools nearer to his house due to the issues with travel.
30. The Council consulted with several schools in May, June, July, October, November, and December. The schools responded and said they could not meet F’s needs.
31. Miss E complained to the Council in February 2023 about its failure to provide F with a school placement. She also said it delayed reviewing his EHC plan.
32. The Council responded to Miss E’s complaint and apologised for its failure to secure full time education for F. It said there were a limited number of school places locally, and it could not extend the search much further due to F’s age. It said it explored Education Otherwise Than At School (EOTAS), but this was difficult to arrange due to the complexity of F’s needs. It apologised for the delay in arranging the annual review.
33. The Council consulted with further schools in March. The schools responded and said they could not offer F a place.
34. Miss E referred her complaint to stage two of the Council’s complaints procedure. She said she wanted it to consider a financial remedy.
35. The Council issued its final response on Miss E’s complaint. It offered £500 as a financial remedy for F as a vulnerable young person, £300 to acknowledge the frustration caused by the ongoing delays and £3,000 to acknowledge the loss of provision caused by the delay in finding F a suitable educational setting from January 2022 to April 2023. It also offered £800 for the missed provision F had not received in his EHC plan. It said it would ensure there was a plan to make appropriate alternative provision available for F. It also said it would consider EOTAS again and alternative solutions for F to receive speech and language therapy and occupational therapy as stated in his EHC plan.
36. The Council held an annual review of F’s EHC plan on 10 May. It discussed Access to Education in the meeting. Miss E said she had discussions with the team, but she did not feel it would benefit F. She said she was concerned about other people’s safety when they come to her house as F needs two people present because of his needs. The Council discussed alternative provision such as farm schools as an interim measure. Miss E said she was interested.
37. The officer emailed Miss E after the annual review and said it would update F’s EHC plan.
38. Miss E chased the Council several times in June and July and said she had heard nothing further about the alternative provision it could offer F. She also said she had not received any paperwork after the annual review.
39. The Council responded to Miss E in mid-July. It said it could make a referral for F to receive support from a re-engagement educational service. Miss E completed the relevant forms.
40. The Council updated F’s EHC plan and sent a draft copy to Miss E in August. It issued F’s final EHC plan on 6 September.

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Analysis

41. The Ombudsman cannot investigate late complaints unless there are good reasons to. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Miss E has been aware of the issues since November 2021, but she did not refer her complaint to us until May 2023. I have decided to exercise discretion to investigate Miss E’s complaint from November 2021 onwards as it was an ongoing matter and she reasonably wanted to give the Council an opportunity to find a school place for F before pursuing her complaint.
42. Miss E could have appealed to the SEND Tribunal about the Council’s decision not to name a school in F’s EHC plan in November 2021. I have decided it was not reasonable for Miss E to have appealed and therefore I will exercise discretion to investigate her complaint. This is because the Council was actively seeking a school placement for F after it issued his EHC plan and there was no indication at that stage it would not be able to find a school that could meet his needs.
43. As soon as the Council issued F’s EHC plan, it had a legal duty to secure the provision in it. The Council has consulted with numerous schools since November 2021. It also suggested interim education through its Access to Education team, but Miss E decided it would not be appropriate for F’s needs. While I recognise the Council’s attempts in trying to secure the provision, it has been unsuccessful. This is fault. This means F has not received any education and he has missed his first year of compulsory education. He has also missed therapy intervention such as speech and language therapy and occupational therapy. This is a significant injustice.
44. The Council’s faults have also caused Miss E an injustice. It has caused her distress, upset and frustration F has not received the education he is legally entitled to. She had to chase the Council for updates on what other support it could provide for F while he is not in education.
45. The Council reviewed F’s EHC plan in April 2022. It agreed to amend the plan, but it failed to do so. If it had done so, it would have given Miss E appeal rights to the SEND Tribunal if she was unhappy with the content. The Council also delayed amending and finalising F’s EHC plan after the annual review in May 2023. This has caused further delays to Miss E’s appeal rights and caused her uncertainty and frustration over the educational provision in F’s EHC plan.
46. I welcome the Council recognised its faults during the complaints process and offered Miss E a financial remedy. However, I do not consider it fully reflects Miss E’s and F’s injustice. The remedy should start from November 2021 as that is when the Council became legally responsible for F’s provision. It should also reflect F’s special educational needs and that he has missed his first year of compulsory education.
47. The Council has recently issued F’s final EHC plan. It has not named a school in Section I of the plan. Miss E now has the right to appeal to the SEND Tribunal if she remains unhappy. I consider this would be Miss E’s best course of action as the SEND Tribunal is best placed to resolve the longstanding issue over the lack of school placement for F.
48. We have recently highlighted issues in other cases with the Council’s failure to secure the educational provision in a child’s EHC plan and its delays during the annual review process. The Council has been asked to produce action plans to address these failures. Therefore, I have not made any further service improvement recommendations.

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Agreed action

49. To address the injustice caused by fault, by 19 October 2023 the Council has agreed to:

• Apologise to Miss E for her uncertainty, distress, and frustration.
• Pay Miss E £500 for the uncertainty, distress and frustration caused.
• Pay Miss E £300 for her delayed appeal rights to the SEND Tribunal.
• Pay Miss E £9,600 for F’s missed education from November 2021 to July 2023 and a further £1,000 for the loss of therapy provision during this period. We would suggest Miss E uses this for F’s educational benefit.

50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. There was fault by the Council, which caused Miss E and F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman