Suffolk County Council (23 002 669)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Jan 2024

The Ombudsman's final decision:

Summary: Ms X complained the Council failed to properly review her child D’s Education, Health, and Care plan, or ensure they received a suitable education and support for their special educational needs. There was fault by the Council which meant D did not receive suitable education or support for their special educational needs. It also caused avoidable distress and uncertainty to D and Ms X, and lost opportunity for D. The Council agreed to apologise, re-assess D’s Education, Health, and Care needs, and pay a financial remedy. It will also review relevant procedures, issue reminders to its staff, and ensure our findings are considered as part of its SEND Improvement Strategy.

The complaint

  1. Ms X complains the Council failed to ensure her child, D, received suitable full-time education, and support for their special educational needs (SEN) from April 2022. She also says the Council failed to review D’s Education, Health, and Care (EHC) plan properly, within statutory timescales.
  2. Because of this Ms X says D missed education and SEN support and could not complete any GCSEs, and this affected their mental health. Ms X also says these issues affected her mental health because she does not know what will happen with D’s education and cannot work while they are not in full-time education. She wants the Council to ensure D receives full-time education which is suitable for them.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
  5. 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

  1. I considered:
  2. Ms X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

Education Health and Care (EHC) plans

  1. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
  2. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments, reviews, and re-assessments, and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons.

Duty to secure EHC plan provision

  1. 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)

School named in the EHC plan

  1. Section I of an EHC plan gives the name and type of school the child will be placed in.
  2. The child’s parents or the young person have the right to ask the Council to name a particular school setting in the plan. The Council must comply with this preference unless it would be unsuitable for the child, or the child’s attendance would cause issues for the setting in terms of resources or the efficient education of others. (SEND Code paragraphs 9.78 to 9.80)

EHC plan review process

  1. Councils must review EHC plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186)
  2. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
  3. 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. (SEND Regulations 2014 Section 22(2), and SEND Code paragraphs 9.176 and 9.194)
  4. Following comments from the child’s parent or the young person, if a 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 proposed amendments to the parents. (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)
  5. There may be occasions when not just a review, but a re-assessment of the child’s EHC needs becomes appropriate, particularly when their needs change significantly. Councils must normally arrange a re-assessment if a child’s family or school requests this. A council may also decide to arrange a re-assessment without a request, if it thinks one is necessary. (SEND Code paragraphs 9.186 and 9.187)
  6. Once a council has decided to re-assess, the process for re-assessment is the same as the process for a first EHC needs assessment. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. However, the Council must aim to complete the process as soon as practicable. (SEND Code paragraphs 9.191 and 9.192)

Transition to adulthood and post-16 provision

  1. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate. 
  2. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

Transfer of EHC plans between councils

  1. Where a child or young person moves to another council’s area, the ‘old’ council must transfer their EHC plan to the ‘new’ council on the day of the move, or within 15 working days of becoming aware of the move, if this is later.
  2. When the plan is transferred, the new council becomes responsible for maintaining it and securing the SEN provision specified in it. From the date of transfer, the EHC plan should be treated as if it was issued by the new council on the date it was issued by the old council.
  3. Where, following transfer, attendance at the school or institution named in the plan would be impractical, the new council must place the child or young person temporarily at an appropriate other institution, until the plan is formally amended.
  4. Within six weeks of the date of transfer, the new council must tell the child’s parent or young person when it will review the EHC plan, and whether it proposes to make a new EHC needs assessment.
  5. The new council must review the EHC plan within 3 months of the plan transfer, or within 12 months of the previous review by the old council, whichever is later.

Appeal rights and the SEND Tribunal

  1. Parents have a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) if they disagree with the special educational provision or the school named in their child’s EHC plan. We refer to it as the SEND Tribunal in this decision statement. The right of appeal is only engaged when the final amended plan is issued.

Education otherwise than at a school (EOTAS)

  1. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution (EOTAS), where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61)
  2. Where a child is to receive some provision in a school setting, that school should be named in Section I of their EHC plan. However, any provision which is to be delivered otherwise than at a school should be clearly set out in Section F of the plan. If all the child’s provision is to be EOTAS, then this should be specified in Section I of the plan instead of naming a school.

Alternative education for a child out of school

  1. 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. The provision generally should be full-time unless it is not in the child’s interests. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
  2. The section 19 duty applies to children of compulsory school age. This means councils are not required to provide alternative provision after year 11.
  3. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
  4. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
  5. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. A part-time timetable must not be treated as a long-term solution.

Summary of key events

  1. Ms X and her child D previously lived in a different council’s area. The old council last issued a final EHC plan for D in December 2020, when they were in year 9. The old council held an EHC plan review in July 2021. At the review meeting Ms X said she planned to move out of the old council’s area soon. A week later, Ms X told the Council she would shortly be moving to its area. Therefore, the old council’s review process stopped.
  2. A month later, in August 2021, Ms X and D moved to the Council’s area. The Council chased the old council to transfer D’s EHC plan. This was transferred in late-September 2021. At this point D should have been in year 10.
  3. In March 2022, D started a placement at Organisation F, an alternative education provider. Ms X previously complained to us about the education D missed up to March 2022. We found fault with the Council because it delayed putting in place provision for D. The Council agreed to our recommended remedy for the impact of that delay.
  4. When the Council placed D with Organisation F, it said this was an interim placement until it could find a suitable permanent educational setting. It continued to consult other settings.
  5. In February 2023, Ms X complained to the Council. She said Organisation F had changed D’s timetable from September 2022, so they were now only offered one weekly 3-hour session in a subject D had no interest in. She said since this change D had only attended three of these sessions.
  6. Three weeks later the Council responded to Ms X’s complaint. The Council:
    • accepted it had not carried out an annual EHC plan review for D since they moved to its area 18 months earlier. It said it did not have an up-to-date picture of D’s needs or views; and
    • offered to carry out an EHC needs re-assessment for D. It said this would take 14 weeks and if D or Ms X were not comfortable with this, it would instead carry out an EHC plan review as soon as possible. It asked Ms X to let it know her preference.
  7. After the complaint outcome, the Council continued to consult educational settings, and contacted Organisation F to ask it to confirm availability for an EHC plan review meeting.
  8. In May 2023, Ms X complained to the Ombudsman. She said the Council had still not reviewed D’s EHC plan and they were still not in full-time suitable education. She also said she had asked the Council to escalate her complaint to Stage 2 but received no response.
  9. In June 2023, after we had notified the Council of Ms X’s complaint to us, it invited Ms X to an annual review meeting, which she attended. It was discussed that D had stopped attending Organisation F when it changed their timetable. It was agreed Organisation F would try to re-engage D while the Council consulted further alternative settings.
  10. In September 2023, D should have started post-16 education, but the issues remained unresolved. While we carried out our investigation, the Council had continued to consult with educational settings. Organisation F had told the Council it had tried to re-engage D, but they refused to attend. The Council had not issued a draft amended plan following the review meeting three months earlier.

My findings

What I have and have not investigated

  1. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Ms X came to the Ombudsman in May 2023, so we would usually only look at what happened after May 2022. However, I decided I should investigate what happened with D’s EHC plan from when the family moved to the Council’s area in mid-2021, until Ms X complained to us in May 2023. This is because:
    • there were significant delays in the Council’s EHC plan processes which delayed Ms X in coming to the Ombudsman; and
    • I need to look at what happened with D’s EHC plan from the point they moved to the area, to investigate more recent events.
  2. However, when Ms X complained to us previously in 2022, we already considered whether D had missed suitable education up to March 2022, when they were placed with Organisation F. Therefore, I will not be considering this again.

EHC plan review

  1. When Ms X and D moved to its area, the Council did not tell the family within six weeks when it would review the plan, or whether it would carry out a needs assessment. This was fault.
  2. The Council should have completed a review within three months. However, it did not carry out a review meeting until nearly 20 months after the transfer. This was fault.
  3. The Council should have reviewed the plan and named a suitable post-16 setting by 31 March 2023, because D was supposed to move from secondary to post-16 education the following year. It did not do this, which was fault.
  4. The Council sent us a copy of a final EHC plan dated October 2022, which stated D should receive EOTAS at Organisation F. However, I decided this was not a valid plan because:
    • the Council did not carry out a review before it produced this plan. It lifted all its information directly from D’s December 2020 plan, produced by the old council. As I have explained, it should have carried out a review by this point; and
    • there was no evidence it shared a copy of the October 2022 plan with the family, or with Organisation F.
  5. During the period I investigated, the Council did not issue any valid final plan for D. Therefore, it prevented the family from appealing to the SEND Tribunal about the content of the plan. This was fault.
  6. At the point D transferred to the Council’s area, their latest December 2020 EHC plan still contained information from when they were at primary school. It did not include current information about D’s needs or meet the statutory requirement to plan for transition to adulthood from year 9. When the Council consulted with educational settings for D, it continued to use this out-of-date information to explain their needs. The Council did not use the information from the old council’s review meeting shortly before the transfer to update the plan, or hold a review of its own, before consulting with potential settings. This was fault. This significantly reduced the chance of a suitable permanent placement being found for D. Educational settings the Council consulted with repeatedly pointed out they could not use the information provided by the Council to decide whether they could meet D’s needs.
  7. Because the information in D’s EHC plan was so out of date, Organisation F could not reasonably deliver the SEN provision set out in the plan, even when D did attend. Therefore, the Council failed in its duty to ensure D received suitable SEN provision. This was fault.
  8. When the Council responded to Ms X’s complaint in March 2023, it gave her the choice of a review, or a full EHC needs assessment for D. A child’s parent may request a re-assessment at any time, and the Council must consider this request. The Council said Ms X did not respond to its complaint outcome to confirm whether she wanted a re-assessment. Ms X told me she did not understand what a re-assessment was. She said she was confused because the Council had said it would involve “gather[ing] up-to-date information from health professionals and other professionals that know and work with [D]”. She did not understand what this meant because she felt there were no professionals with an up-to-date view of D, as they had been disengaged from education for so long. She also said that she did respond to the Council, but it ignored her.
  9. Regardless of what Ms X’s view on re-assessment may have been, it is also the case a council may decide to arrange a re-assessment without a request. Also, as I have explained, a council must consider whether a full assessment is needed when a child moves to its area, within the first six weeks. I am not satisfied the Council has ever given proper consideration about whether it should carry out a full needs assessment for D. It should not have relied on Ms X to make this choice, because it had a statutory duty to consider it either way. On the balance of probabilities, my view is that had the Council properly considered this, it would have decided to carry out a re-assessment. The information it held about D throughout this period was clearly out of date, and when it responded to the complaint it accepted it “[did] not have an up-to-date picture of [D]’s needs”.
  10. When D transferred to the Council’s area, they had already missed significant educational provision and become disengaged. It may be that even had the Council reviewed D’s plan in good time, or decided to carry out a needs re-assessment, D would not have engaged with this. However, I consider fault by the Council caused D a lost opportunity. There remains uncertainty for D and Ms X about how things may have been different for D if the Council had followed the correct process. The Council should remedy the distress caused by this remaining uncertainty.

Alternative education

  1. When the Council decided to place D at Organisation F in early-2022, it intended this to be an interim measure until it could identify a suitable permanent placement. It planned to continue this until the end of the 2021/2022 school year and carry out an EHC plan review before September 2022. The Council failed to properly follow up on this. It did not keep proper oversight of D’s placement at Organisation F. It did not ask the family, or Organisation F about D’s attendance and attainment. It did not keep under review whether a part-time timetable remained suitable for D. This was fault.
  2. The Council then became aware D was not engaging with their part-time timetable when Ms X complained in March 2023. However, there was still no evidence it properly considered or recorded whether Organisation F remained suitable for D’s age, ability, aptitude, and SEN, or was education that was “reasonably practicable” for D to access. It also still did not consider whether D’s part-time timetable remained suitable. This was fault.
  3. Due to the Council’s fault, D missed suitable education and SEN support. The Council should provide a remedy for the injustice caused for all of year 11. However, I consider it unlikely D would have engaged with full time education even if this had been available to them and have accounted for this in deciding the remedy. I have explained this further in the ‘agreed action’ section.
  4. The Council’s failure to properly consider its duty to provide suitable alternative education for D, in their GCSE year, caused D a lost opportunity. There remains uncertainty for D and Ms X about how things may have been different for D if the Council had followed the correct process. The Council should remedy the distress caused by this remaining uncertainty.

Communication with Ms X

  1. I am not satisfied the Council communicated with Ms X properly or kept her informed. It did not update her regularly about actions taken to secure a permanent educational setting. The Council’s continued failure to update Ms X and provide clear information, was fault. This caused Ms X distress, for which the Council should provide a remedy.

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Agreed action

  1. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 per term to recognise the impact of that loss. The Council will remedy the education D missed for the three terms of education in the 2022/2023 school year. In deciding a suitable financial payment, I considered the following.
    • During this period, D was in year 11 of secondary school. As set out in our guidance on remedies, this is an exam year, and we consider it to be one of the most significant periods in a child’s school career. D did not sit any exams or gain any qualifications.
    • The Council was aware Ms X had moved into its area specifically because D was in a distressing situation which made them particularly vulnerable, and the police and social services were involved.
    • The education D accessed via Organisation F was negligible. There was also no evidence this was suitable for D’s age, ability, aptitude, and SEN. I therefore consider D to have gone without education altogether.
    • D did not receive any SEN provision. I cannot say, even on the balance of probabilities, exactly what SEN support D missed, because their EHC plan was so out of date. The Council had not properly considered what SEN support they needed to access education.
    • However, I consider D and Ms X had specific requirements about the type and format of education D should receive. D would only engage with lessons that aligned with their specific interests, in subjects like plumbing or tree surgery. I consider that even if the Council had re-assessed D’s needs, finding a suitable placement that also aligned with the family’s wishes still may have been challenging. I also consider it unlikely D would have engaged with full-time education even if this had been available to them and accessible for them.
  2. Based on these factors, I consider a remedy of £1,200 per term to be suitable. I have also remedied separately for the distress caused by the uncertainty that remains for the family about how things may have been different for D. The remedy I have recommended for this is higher than our standard amount for distress because D suffered a loss of opportunity at a significant point in their school career.
  3. Within one month of our final decision the Council will:
      1. carry out a full EHC needs re-assessment for D, without delay, and within statutory timescales;
      2. apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology; and
      3. pay the family a total of £5,100, comprising of:
        1. £3,600 to recognise the education and SEN support D missed;
        2. £1,000 to recognise the avoidable distress caused to D by the Council’s failings, and the uncertainty about how things may have been different for them had it acted without fault; and
        3. £500 to recognise the avoidable distress caused to Ms X by the Council’s failings, and the uncertainty about how things may have been different for D had it acted without fault.
  4. We have identified recurrent fault by this Council in several cases over the last two years about alternative education for children out of school, covering a period of more than three years.
  5. In February 2023, we issued a public interest report about the Council’s failings in this area, case reference 22002489. The Council agreed to various recommendations to improve its services including a review of relevant policies and procedures, and compulsory in-person training for staff responsible for arranging alternative education. I therefore do not consider it necessary to make further recommendations about this in this case.
  6. Also, as a result of other Ombudsman investigations since February 2023, the Council has agreed to several more recommendations to improve its services and procedures. I therefore do not consider it necessary to make further recommendations about:
    • statutory timeframes for progressing through the stages of EHC plan annual reviews;
    • the Council’s duty to prepare its young people for adulthood in all EHC plan annual reviews from year 9 onwards; and
    • the importance of proper communication with families.
  7. Within three months of our final decision the Council will:
      1. issue reminders to all staff in its SEND service that:
        1. when a child with an EHC plan moves from a different council’s area, the Council must let the family know within 6 weeks of transfer whether it will carry out an EHC needs assessment, or when it will review the plan. It also must review the plan within 3 months, or within 12 months of the previous review by the old council, whichever is later; and
        2. any final plan issued must be shared with the family, along with their rights to appeal to the SEND Tribunal.
      2. review its processes and procedures, and issue reminders to relevant staff, to ensure that where it is aware a child is being educated part-time, it keeps the suitability of this arrangement under regular review; and
      3. ensure a copy of our final decision is considered as part of its ongoing SEND Improvement Strategy, following its Independent SEND Review. The Council commissioned this independent review in 2021 to address issues with its SEND services and is monitoring progress against the actions it identified.
  8. The Council will provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation. There was fault by the Council which meant D did not have suitable education in place and did not receive support for their special educational needs. It also caused avoidable distress for D and Ms X. The Council agreed to our recommendations to remedy this injustice, review relevant procedures, issue reminders to its staff, and ensure our findings are considered as part of its ongoing SEND Improvement Strategy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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