Summary: Miss H complained the Council failed to provide her son (X) with enough educational provision as set out in his Education, Health, and Care plan for over two years. We found the Council failed to arrange a suitable placement for X during a seven-month period and caused significant delay in arranging his tuition. It also communicated poorly with Miss H and failed to adhere to the statutory timescales for the annual review process. The Council agreed to apologise and make payment to Miss H to acknowledge the injustice this caused her and X.

The complaint

1. The complainant, whom I shall refer to as Miss H, complained about the Council’s handling of her son’s (X) educational provision. She said it:
• failed to provide him with an education for two years, including the provision set out in his Education, Health and Care (EHC) plan;
• delayed putting in place agreed tutoring provision since it agreed to do so in 2022;
• communicated poorly with her and failed to inform her of changes to caseworkers; and
• failed to adhere to annual review timescales for X’s EHC plan.
2. Mrs H said, as a result, X experienced distress and had a loss of education. She also said she experienced distress to support X and to pursue her concerns with the Council.

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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 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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 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 have and have not investigated

8. I have considered Miss H’s complaint from February 2022 regarding the educational provision X received, how the Council communicated with her and its handling of the EHC plan process.
9. I have not investigated Miss H’s complaint about the Council’s handling of X’s education prior to January 2022 as this part of her complaint is late.

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How I considered this complaint

10. As part of my investigation, I have:
• considered Miss H’s complaint and the Council’s responses;
• discussed the complaint with Miss H and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and guidance to the complaint.
11. Miss H 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

Relevant law and guidance

Education, Health, and Care Plans (EHC plans)

12. A young person with special educational needs may have an EHC plan. This sets out their needs and what arrangements should be made to meet them.
13. The EHC plan is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.
14. Councils are 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.
15. The Ombudsman does recognise it is not practical for Councils to keep a ‘watching brief’ on whether schools are providing all the special education provision for every pupil with an EHC plan. The Ombudsman does consider that Council’s 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 provision is not in place at any time.
16. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
17. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
18. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent, or a final EHC plan has been issued.

Alternative provision

19. 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. (Education Act 1996, section 19)
20. We refer to this as section 19 or alternative education provision. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll with a school. (Statutory guidance ‘Alternative Provision’ January 2013)
21. The courts have considered the circumstances where the section 19 duty applies. Case law 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)
22. 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 sight? published July 2022 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 (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties and properly fulfilled.

What happened

24. Miss H has a son (X) who has been diagnosed with conditions such as learning difficulties and autism spectrum disorder (ASD). He has struggled to engage with much of the education available to him since he started secondary school.
25. X had an EHC plan which sets out the support he should receive in school to meet his special educational needs since 2019. While he accessed his education, his school struggled to support him, and he had several fixed term exclusions.
26. By early 2021, X’s secondary school told the Council it was unable to meet his needs despite the support which had put in place for him.
27. During the Summer term in 2021, the Council arranged for X to attend a transition programme with a college, while he remained on roll with his secondary school.
28. From September 2021 X was enrolled with the college on its 14-16 programme.
29. In February 2022 the college held an annual review of X’s EHC plan, and two months later told the Council it could not meet X’s needs.
30. The Council met with Miss H and agreed to apply through its Local Offer for an apprentice style course which they believed would give X an opportunity to engage with practical tasks. It also found it was priority for him to receive 1:1 tuition in Math and English.
31. The proposal was brought to the Council’s education panel for approval. It approved a preparation (PREP) course for H, which started soon after. This was a reduced hours resilience and engagement programme to help him in his journey back into education or employment. However, it did not agree to the tuition proposal as it was not clear who would provide the educational offer.
32. The Council said due to an officer oversight the tuition proposal was not brought back to its education panel in June 2022.
33. In September 2022, the PREP course provider also told the Council H was not ready for a supported internship and recommended the PREP course should continue for another year, although his attendance had been poor. It again confirmed Math and English was a priority for X.
34. Miss H asked the Council for eight hours of tuition. The Council’s panel approved for X to receive four hours of tuition in Math and English, which could be increased to eight hours if he was able to engage with the provision.
35. Miss H told the Council it was not appropriate for the tuition to take place in the family home and asked for it to be in a school or community setting.
36. In February 2023 the Council allocated a new officer to X’s case. It then became clear it had not made any referrals for tuition. Miss H and X told the Council they wanted eight hours of tuition for Math and English.
37. In April 2023 X’s college held an annual review of his EHC plan. Miss H said the Council has still not finalised the annual review process.

Miss H’s complaint

38. Miss H complained to the Council in February 2023. She said it:
• failed to provide X with an education for two years, including the provision set out in his EHC plan;
• delayed putting in place agreed tutoring provision for X since it agreed to do so in 2022;
• communicated poorly with her and failed to inform her of changes in caseworkers; and
• failed to adhere to annual review timescales for X’s EHC plan.
39. In response the Council upheld most of Miss H’s complaint. It said:
• it had reviewed its handling of X’s educational provision since 2021. It found it had caused X a three-month loss of educational provision from February 2021 until the college placement was put in place, and a further four-month loss of educational provision from February 2022 until the PREP course started;
• its communication with Miss H had been poor, there had been several changes of officers allocated to X’s case and casework had not been completed in a timely manner;
• it had caused a delay in commencing X’s tuition since May 2022 when this was recommended by the college and PREP provider. However, it also said the tuition could have been put in place sooner if Miss H had agreed for X’s tuition to take place in their home; and
• its annual reviews had taken place for X’s EHC plans but acknowledged the 2023 review had not yet been finalised.
40. The Council apologised and told Miss H it had considered the Ombudsman’s Guidance on Remedies and proposed:
• a remedy of a £100 symbolic payment to each of Miss H and X for the distress they experienced, and £3,150 to acknowledge the seven months of lost education he experienced; and
• it would ensure the annual review was completed and agreed Math and English tuition was put in place and would start in April 2023. This would initially be four hours, increasing to eight hours when X was able to engage with this. It would review this fortnightly; and
• it would review its records keeping and procedures to ensure cases were progressed when there are changes in allocated caseworkers.
41. Miss H was not satisfied with the Council’s response as X has still not received the tuition the Council promised.
42. Following my discussions with Miss H and the Council’s response to my enquiries, I understand the Council found a tuition provider in March 2023 which could offer some tutoring. Miss H then agreed to start with four hours of tutoring which could then be increased.
43. However, in June 2023, the Council became aware X’s tutoring had not started as the tuition provider was awaiting confirmation from the Council whether this could be provided in weekends, and the provider could subsequently no longer provide the service.
44. The Council made referrals for other tuition providers, which led to English tuition starting in the Summer Term 2023. However, Math tuition is yet to be provided.
45. The Council also said, following the April 2023 annual review, it had issued its decision not to amend X’s EHC plan in October 2023 to Miss H.

Analysis and findings

46. Miss H complained about the Council’s failure to provide educational provision which X could engage with since 2021. She did not bring her complaint to our attention until 2023. Part of her complaint is therefore late.
47. I have considered whether it would be appropriate to exercise my discretion to consider all of Miss H’s complaint. I decided to investigate her complaint from February 2022. This is because earlier matters should have been brought to our attention sooner, and any concerns about whether the school placement and special educational needs provision as set out in X’s October 2021 and March 2022 EHC plans carried appeal rights to the SEND Tribunal.
48. However, the Council agreed it caused delays for a three-month period in Spring 2021 to put educational provision in place for X which he could engage with. This was until the transition programme with the college was put in place in the Summer Term 2021. I have therefore included this remedy in my decision.

H’s educational provision from February 2022

49. The Council agreed it caused delays to put in place an educational offer X could engage with in February 2022, when during the annual review the college said it could not meet X’s needs. This was fault, which lasted for four months until it arranged for X to start the PREP course with the college in the Summer Term 2022.
50. Miss H also asked the Council for tuition for X in Math and English as this had been identified to be necessary for his GCSE or progression with apprenticeships.
51. The Council’s education panel agreed tuition was needed for X in May 2022. However, it was not clear who should provide the tuition, and Miss H said it was not appropriate for this to be delivered in their home.
52. The Council agreed it caused delays in putting the tuition in place, but also said it would have happened sooner if Miss H agreed to have this in her home.
53. I found the Council at fault for causing delays from May 2022 until July 2023 when the 2022/2023 academic year ended. In reaching my view, I am conscious:
• the Council’s Education Panel had agreed tuition for X was needed in Math and English in May 2022;
• the tuition proposal was not reconsidered in a timely manner by the Panel due to an officer oversight. It first reconsidered this in September 2022 when X’s college brought X’s need for tuition to its attention again in its end of year report;
• Miss H continued to request tuition for X;
• while I acknowledge it may have been quicker for the Council to arrange tuition for X in Miss H’s home, she had shared reasons why this was not appropriate. The Council should therefore have put the provision in place in an educational or community setting without delay;
• the Council did not arrange tuition for X in September 2022 when its Education Panel agreed for him to receive four hours of tuition. This was because it failed to make a referral to providers;
• the Council became aware of its error when a new officer was allocated to X’s case in February 2023 and discussed tuition with Miss H. She asked the Council for eight hours of tuition, but the Council found X should start with four hours and increase this to eight hours once he was able to engage with it;
• despite the Council making referrals to a tuition provider, in Summer 2023 the Council became aware X had still not started to receive his tuition. This was because the provider was awaiting the Council’s confirmation on weekend sessions; and
• while English tuition started in the end of the Summer Term 2023, X is yet to receive any Math tuition.
54. I am satisfied the Council’s faults caused X and Miss H uncertainty and they experienced distress as a result. X also had a significant loss of educational provision during a seven-month period, and for the four hours of tuition he should have received each week from May 2022.
55. In addition, X also had a loss of opportunity for his four hours of tuition to be increased to eight hours when he was able to engage with this. However, I cannot say when this may have started as it is still unknown whether he is able to engage with the increased provision.

Communication with Miss H

56. The Council agreed its communication with Miss H had been poor, and it had not informed her each time it changed X’s allocated caseworker. I agreed with the Council. This was because it failed to communicate and keep her informed about its progress, or lack of progress, in its efforts to put educational provision in place for X.
57. The Council was not at fault for changing officer’s allocated to X’s case, as it is entitled to manage its staff as it sees fit and had no control over staff leaving its service. However, it failed to inform her about its changes on most occasions, which meant she was unaware who was allocated to look after X’s case. This was fault.
58. I am satisfied the Council’s poor communication and handling of Miss H’s concerns meant she experienced some further distress due to the uncertainty and frustration this caused her.

Annual review of X’s EHC plan

59. Miss H also complained the Council failed to adhere to the statutory timescales of the EHC annual review process for X.
60. The Council reviewed X’s EHC plan in February 2022 and issued its final amended EHC plan 6 weeks later. I found no fault in the process the Council followed to issue this decision.
61. However, the Council should ensure X’s EHC plan was reviewed at least every 12 months. I found the Council at fault for how it handled this review. This is because:
• the annual review took place in April 2023, which was slightly over the 12-month statutory timescale; and
• it did not share its decision to maintain X’s EHC plan until October 2023, which should have been shared with her after four weeks of the annual review.
62. I cannot say whether Miss H will appeal the Council’s decision to the SEND Tribunal. However, I found its fault caused her some distress and a loss of her right to appeal for a period of over 5 months.

Remedy

63. I have considered the Council’s proposed remedy against the fault I have identified in line with the Ombudsman’s Guidance on Remedies.
64. I found the Council’s remedy offer of £3,150 was appropriate to acknowledge the seven month of educational provision X lost in 2021 and 2022. However, I am not satisfied its offer was appropriate to remedy the impact its faults caused Miss H and X on other parts of the complaint. I found the Council should pay Miss H:
• £500 to acknowledge the distress and uncertainty she experienced as a result of the Council’s poor communication, delays, and failures to adhere to the statutory timescales. She also supported X during the times where he did not receive the education he was entitled to;
• £250 to acknowledge the distress X experienced as a result of not receiving the educational provision he was entitled to;
• A further £3,300 to acknowledge the loss of tuition X experienced, which was two hours of English tuition per week from May 2022 to the Summer Term 2023, two hours of Math tuition until October 2023, and a loss of opportunity to have his tuition hours increased if he was able to engage with the provision; and
• £150 per month from November 2023 for the ongoing loss of Math tuition X is experiencing as the Council is yet to put this in place.

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Agreed action

65. To remedy the injustice the Council caused to Miss H and X, the Council should, within one month of the final decision:
1. Apologise in writing to Miss H and X;
2. Pay Miss H, to use as she sees fit for the educational benefit of X;
1. £500 to acknowledge the distress and uncertainty she experienced as a result of the Council’s poor communication, delays, and failures to adhere to the statutory timescales. She also supported X during the times where he did not receive the education he was entitled to;
2. £250 to acknowledge the distress X experienced as a result of not receiving the educational provision he was entitled to;
3. £3,150 to acknowledge the loss of educational provision X experienced in a three-month period in 2021 and a four-month period in 2022;
4. A further £3,300 to acknowledge the loss of tuition X experienced, which was two hours of English tuition per week from May 2022 to the Summer Term 2023, two hours of Math tuition until October 2023, and a loss of opportunity to have his tuition hours increased if he was able to engage with the provision; and
5. £150 per month from November 2023 for the ongoing loss of Math tuition X is experiencing as the Council is yet to put this in place.

In total the Council should pay Miss H £7,200.

66. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. share with the Ombudsman the Council’s review of its record keeping procedures. This was to ensure it progresses cases where children and young people are unable to engage with their education without delay, and communicates its outcomes with parents; and
5. remind its special educational needs and disability staff of the Council’s duty to ensure it reviews Education, Health, and Care plan at least every 12 months and issues its decisions to cease, maintain, or amend such plans within the statutory timescales.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation with a finding the Council was at fault which caused Mrs H and X an injustice. The Council will apologise, make payment to Mrs H, arrange tuition for X and review its practices to avoid the same fault in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman