Summary: Ms C complains the Council did not review or update her son’s Education, Health and Care Plan as it should have. It delayed putting any alternative education in place and finding a new school after D stopped attending his previous school. Its communications were poor. The Ombudsman upholds the complaint and the Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains the Council:
• did update or review her son’s (whom I shall refer to as D) Education, Health and Care (EHC) Plan since it was first written. It still included targets for the end of key stage one, after he had moved to key stage two;
• did not write to her after any of the annual reviews that took place;
• delayed putting in place suitable alternative education after D could not attend school;
• delayed finding D a new school;
• was poor in its communications with her, including in relation to complaints.

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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 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)
3. 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)
4. The law says we cannot normally investigate:

• most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
• 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. 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.
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)
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.

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What I have and have not investigated

8. Ms C says she has been seeking a change of placement for D since 2019. We will not normally investigate matters that happened longer than 12 months before the complaint to the Ombudsman (see paragraph 3). Ms C did not complain to us until September 2023, meaning we would not normally consider any matters from before September 2022. But Ms C did try to contact us earlier. And it seems likely, but for some delay in the Council responding to her stage two complaint, she would have first approached us before that. So, I have used my discretion to investigate matters back to the start of 2022. Before then it would be reasonable for Ms C to have complained if dissatisfied with the Council’s actions.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms C;
• made enquiries of the Council and considered its response;
• spoken to Ms C;
• send my draft decision to Ms C and the Council and considered their responses.

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What I found

Legal and administrative background

Education, Health and Care Plans

10. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The Children and Families Act 2014 (the Act), the Special Educational Needs Code of Practice 2015 (the Code) and the Special Educational Needs and Disabilities Regulations 2014 (the Regulations) contain detailed guidance to councils about how they should manage the EHC plan process.

Securing provision

11. Councils have 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)
12. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. But we do consider that councils should be able to demonstrate due diligence in discharging this important legal duty. And, as a minimum, have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that the provision is not in place, at any time.

EHC Plan reviews

13. The Act says councils are responsible for making sure arrangements are reviewed, at least annually. The Code says:
• councils can ask educational settings to convene and hold review meetings;
• within four weeks of a review meeting the council must decide whether it proposes to keep, amend or end the EHC Plan;
• a council must notify parents of its decision.

(Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.173-6)

Absences from school and alternative education

14. Councils must arrange suitable education 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs s/he may have. (Education Act 1996, section 19(6))
16. In one court case, the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to provide alternative education would be triggered, and alternative provision should be made, pending finding a suitable school. (R. (on the application of Y) v Croydon LBC [2015] EWHC 3033)

What happened

Background

17. D was born in 2013 and in 2017 was diagnosed with an autism spectrum disorder (ASD). Since September 2017, when he first started at primary school, he has been subject to an EHC Plan.
18. D’s EHC Plan had a series of outcomes, for him to meet by the end of key stage one. This included opportunities for D to develop social interaction and communication skills.
19. Ms C says D was needing a change in placement since his year 2 review in December 2019. She notes a series of exclusions from school since 2021.
20. In November 2021 D’s School (which I shall refer to as School F) hosted an annual review of D’s EHC Plan. The Council says School F’s review said no changes were needed to D’s EHC Plan. But Ms C was seeking a change of placement.
21. In December 2021 Ms C contacted the Council’s Special Educational Needs Assessment Team (SENAT) asking for a change of placement – naming two schools. School F supported the change. SENAT contacted the schools. Both responded to advise they could not offer a place to D.

Events I have investigated

22. In February 2022 Ms C contacted the Council’s SENAT to advise School F had placed D on a reduced timetable as it was unable to meet his needs. And he was only attending school for around 10 hours a week.
23. Later in the year the Council carried out further consultations with schools regarding a placement for D.
24. For around two weeks, in July 2022, School F excluded D from school. In September, a few weeks into the new term, the School permanently excluded D.
25. At the end of September, the Council contacted organisations about providing tutoring for D. One tutorial service (which I shall refer to as Organisation E) responded in early October expressing an interest. The Council says SENANT emailed Organisation E asking it to contact D’s parents.
26. In early October School F withdrew its decision to permanently exclude D, citing support from the Council’s SENAT.
27. The Council says the next annual review of D’s EHC Plan was in November 2022. The record of the review notes D’s attendance at school as just over 17%, with all absences authorised by the school. It also references taster sessions at alternative providers, that were due to begin. The Council did not send Ms C a decision about this annual review.
28. In the week after the annual review meeting, the Council’s SENAT contacted Organisation E, asking it to arrange tuition. In response to Ms C’s complaint, the Council advised Organisation E did not respond. And its officer did not follow this up, as they assumed Organisation E had already started its tutorial service.
29. In early January 2023, Organisation E responded to the Council explaining its view of D’s needs. Around two weeks later, Organisation E chased a response. SENAT’s officer responded saying they had assumed tutoring had started in October 2022.
30. Around a month later Organisation E emailed the Council’s SENAT again asking whether it had agreed its costing. SENAT’s officer response advised it had approved the funding “…last year when I first made contact”.
31. Organisation E’s tutoring began in May.
32. In June the Council’s SENAT advised Ms C a School (which I shall refer to as School G) had offered D a place, to start in September. And as no other schools had offered a place, it had accepted this offer.
33. Ms C visited School G. The School advised her it was offering a six-week trial. Ms C contacted the Council asking what would happen if the trial was unsuccessful. She asked for assurances the Council would keep Organisation E on retainer during the period. The Council responded to say it could not keep Organisation E on a retainer, but would set up alternative provision as soon as possible, if required.
34. Ms C declined the offer of a place at School G because she was concerned with the possibility Organisation E’s work with D might end, as he had made some progress during the time it was working with him.

Complaint

35. Ms C first approached the Council asking to complain towards the end of February 2023. The Council responded at the end of March. This response provided information about the alternative education it had arranged to start (Organisation E’s support). It advised it would also carry out another round of consultations with schools.
36. At the beginning of August the Council responded at the second stage of its complaints procedure. The response:
• accepted a delay in consulting with School G;
• accepted it had not proactively chased responses from schools it had contacted;
• apologised for the failure to keep Ms C informed and to respond to requests for information;
• advised its SENAT would remind staff about the importance of responding to contacts. And it would introduce a system to follow up contacts with schools and ensure parents were proactively informed about the progress of consultations;
• found fault that its officer had not confirmed with Organisation E whether it had started supporting D. It apologised;
• offered Ms C £1500 as a remedy for lost opportunity and distress. In arriving at this figure it noted School F was still supplying D with some work, as he remained on its roll;
• offered to continue to fund Organisation E’s support. And it agreed to retain its services during a trial period at School G, so D could take up the offer of a trial there. This was to remedy the delay in contacting School G. And the resulting injustice of putting Ms C in a position where she felt she had to refuse the offer of a place.
37. Ms C contacted the Ombudsman in June 2023. We did not initially accept the complaint, as the Council had not completed its complaints procedure. Ms C came back to us in September 2023. She advised me that:
• D’s last time in an actual classroom was in November 2021. After that he was in School F’s specialist support unit on a reduced timetable of two hours a day – largely playing on his own;
• in its complaint response, the Council referred to work School F was sending home. But this was limited to a few worksheets;
• after the Council’s complaint response, she had contacted School G about taking up its offer. But by then it had allocated the place.
38. In response to my enquiries, the Council advised:
• while it had not sent Ms C decision letters following the annual reviews, it had used the reviews to consider how any changes had affected delivery of D’s Plan;
• it had acted on the outcome of the reviews by maintaining D’s placement on School F’s roll, arranging alternative provision and seeking another school placement for him;
• it had confidence School F was providing D work at home, as arranged, although SENAT did not check what that work was;
• the Council brought forward the next review of D’s EHC Plan to June 2023, as he was due to transfer schools due to the end of a key stage. It had issued a draft amended Plan in November 2023 and a final Plan in February 2024.

Was there fault by the Council?

Delays in the annual review process and the issuing of a decision

39. After the EHC Plan review meetings, the Council should have told D’s parents of its decision: whether to retain, amend or cease the plan, within four weeks. The Council did not send any letters after the 2022 review (the one that I have investigated). As this was not in line with the guidance, my decision is that was fault.
40. The Council says, although it had not informed Ms C of the outcome of the annual review, it had acted on it. But I note D’s EHC Plan referred to outcomes for the end of key stage one. By the time of the events this complaint considers, D was in key stage two. So at the least, the Council should have ensured D’s outcomes were updated. My decision is that to not to have updated the plan was fault.

Securing the EHC plan provision

41. Ms C reports D was on a significantly reduced timetable. The Council knew this by, at the latest, February 2022.
42. The duty to secure the EHC Plan provision was with the Council, not the School. And some of the provision in D’s Plan was related to, for example, social interaction. Ms C describes what D was doing at school during this period (see paragraph 37). So it is unclear if the School was delivering the provision set out in D’s Plan, due to the Council not having checked this.
43. So my decision is the Council did not retain sufficient oversight and control over how School F was providing D with the provisions in his EHC plan. When it was advised D was on a reduced timetable, it should have contacted School F to check if the reduced timetable had any implications for its ability to deliver the contents of D’s EHC Plan. To not do so was fault.

Alternative education provision

44. The Council’s records note from October 2022 it had decided School F’s provision was not meeting D’s needs. So it sought home tutoring from Organisation E. But due to a lack of follow up from its officers, that tutoring did not start until May 2023. My decision is that delay was fault.

Securing a new placement

45. The Council’s complaint response accepted delay in its contact with School G. And that it did not proactively chase responses from other schools. That delay was fault.

Communications

46. The Council has accepted that it did not respond to some of Ms C’s emails.
47. The Council also delayed responding to Ms C’s complaint at stage two of its procedure.

Did the fault cause an injustice?

Not advising Ms C of the outcome of the annual review

48. By not advising Ms C of the outcome of the review, the Council also did not advise Ms C of her right to appeal the decision to the SEND Tribunal. This leads to uncertainty whether, but for the fault, other options might have been available – including what might have happened if she had used her right of appeal.

Not updating the EHC Plan or checking D was receiving the Plan’s contents

49. These faults create uncertainty whether, but for the fault, D might have received different provision.

Delay in arranging alternative education

50. From October 2022 to May 2023 (or around two terms) the Council delayed in arranging alternative education for D. On the balance of probabilities, D missed some provision he might have received but for the faults. The Council based its assessment of how much education D missed by taking account of work School F was sending home. But I accept Ms C’s submission that this work was minimal. So my decision is this did not significantly lesson the injustice to D.

Delaying deciding on a placement and chasing schools

51. These delays create uncertainty whether, but for the fault, D might have had the opportunity to move to a different school. The delay meant that, by the time the Council did find a school, D had made some progress with Organisation E. So it was understandable that, then, Ms C did not want to put that progress at risk. Ms C reports that by the time the Council offered to retain Organisation E while D tried School G, the place was no longer available.

Poor communications

52. There is also evidence of some poor communications with Ms C, which includes a delayed response to Ms C’s complaint. This likely caused Mr C some additional uncertainty and stress, as well as some avoidable time and trouble.

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Agreed action

53. To remedy the injustice resulting from the identified fault in this complaint, the Council has agreed that, within one month of my final decision, it will take the following action:

• write to Ms C and D to apologise for the injustice cause by the faults identified above. 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;
• pay Ms C £500 as a symbolic remedy for the distress and uncertainty caused by the faults in not advising Ms C of the outcome of the reviews, so depriving her of her appeal rights. And in not checking whether the School was meeting the provision in the EHC Plan;
• pay Ms C £3000 in recognition of D’s missed provision during the approximately two terms the Council delay providing the tutoring it believed Organisation E had started to provide. Ms C should use this payment for D’s educational benefit, as she sees fit;
• pay Ms C £500 for the uncertainty caused by the delay in securing an alternative placement. Ms C should use this payment for D’s educational benefit, as she sees fit;
• make Ms C a symbolic payment of £250 to acknowledge her distress, uncertainty and time and trouble caused by the poor communications.

54. This total recommendation of a payment of £4250 is intended as a replacement for the remedy offered by the Council (see paragraph 36). The Council has already made this payment of Ms C, leaving a balance of £2750.
55. The Council has also agreed that, within three months of this decision, it will remind relevant staff:

• that it is the Council’s duty to ensure the specified special educational provision in an EHC Plan is being provided. And they should investigate where information is provided that leads to a question about whether the provision was in place; and
• of the Council’s duties to advise parents of the outcomes of EHC Plan annual reviews.

56. The Council should provide us with evidence it has complied the recommendations.

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Final decision

57. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman