Summary: Ms D complained the Council failed from 2020 onward to support her in meeting the special educational needs of her son. We upheld the complaint, finding the Council at fault from March 2022, which was the only period we could investigate. We consider Ms D’s son suffered a significant loss of service and she suffered unnecessary distress. We have completed our investigation as while it was ongoing, the Council offered a satisfactory remedy for that injustice.

The complaint

1. I have called the complainant Ms D. She complains the Council has failed to adequately support the special educational needs of her son, ‘E’, since she moved to its area around 2020.
2. Ms D says as a result E was taught at home and did not begin to receive the specialist education he needs until October 2023. He has therefore lost out on schooling. While having E at home put Ms D and her mother, ‘Mrs F’, under more pressure given the extent of his needs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)
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 did. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot normally investigate a complaint when someone has had a right of appeal, reference or review 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 have used this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
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. Before issuing this decision statement I considered:

• Ms D’s complaint to the Ombudsman and any supporting information she provided;
• the details of Ms D’s earlier complaint to the Council and its replies to the same;
• information provided by the Council in reply to my enquiries;
• any relevant law or Government guidance referred to below;
• any relevant guidance published by the Ombudsman referred to below.

10. I also gave Ms D and the Council chance to comment on a draft version of this decision statement. I took account of any response they provided before finalising the statement.
11. 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

Relevant legal considerations

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s 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 their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. 
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
15. Within four weeks of a review meeting, the 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) 
16. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
17. Where the council amends an EHC plan it should send the final version as soon as practicable and within eight weeks of sending the proposed amendments (Section 22(3) and (4) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196 & 9.197).

Key facts

18. Ms D has a son, ‘E’, who is in Year 7 of his education. He has autism, a sensory processing disorder and severe learning difficulties. As a result, E has special educational and care needs. He can become stressed and this results in behaviours including self-harming, damage to the home and hurting his carers. Ms D lives with her mother (whom I will call ‘Mrs F’).
19. During his early years E did not attend school as Ms D electively home educated him. In 2020/21 he was offered a place at a mainstream primary school. But the school said it could not meet E’s needs and encouraged Ms D to continue to electively home educate him.
20. Ms D went on to request the Council to carry out an education, health and care needs assessment of E. In July 2021 this resulted in it issuing him with an EHC Plan. This said he would be educated at home.
21. Despite this, ‘Section F’ of the plan, read as if E would go on to receive education in a school setting. It said he needed small class teaching. Also, it said he needed a transition plan to support him starting school. The plan also referred to E needing further assessments of his social communication skills, his sensory needs and occupational therapy.
22. From that date, Ms D also began to express a preference for E to attend a specialist school. However, she did not appeal the content of the EHC Plan.
23. In March 2022 the Council agreed to consider a specialist school placement for E. This followed Ms D’s social worker asking it to consider her request for specialist schooling. While it initially refused the request, it changed its mind and agreed this in principle in May 2022. This was around the same time a specialist school assessed E’s needs and recommended the Council consider naming it as a placement.
24. However, the Council did not review E’s EHC Plan until March 2023. The Council decided to maintain it without changes, despite Ms D again saying she wanted E to attend a specialist school. It says it did this while it commissioned a series of assessments (including from an Education Psychologist and Occupational Therapist) to inform any changes to the content of the plan.
25. In May 2023 the Council reviewed the EHC Plan again and agreed to amend it. Next, it consulted with the specialist school. In November 2023, it issued a new EHC Plan, naming the specialist school. This was around one week after E began attending the school.
26. E’s school attendance is part-time and gradually increasing. Initially it was for just part of one day a week and has since increased to part-time attendance two days a week.

Ms D’s complaint

27. Ms D complained to the Council in March 2023. She was unhappy the Council had not reviewed E’s EHC plan since July 2021 and he was not in a specialist school. Ms D said continuing to educate E at home was not by choice and explained the strain this put on her and Mrs F.
28. The Council replied in April 2023. It acknowledged not having reviewed E’s EHC plan sooner, saying it should have done so by July 2022. It then went on to explain its consideration of a specialist school for E, confirming it had agreed to this in May 2022. The Council said it was looking to secure some interim tuition or provision for E while waiting for a specialist school place. Its reply also set out some of the pressures the service was under and summarised its improvement plan.
29. Ms D escalated her complaint to stage two of the Council complaint procedure. She set out her dissatisfaction with the support offered by the Council from 2020 and asked it to consider a financial payment to recognise her son’s lack of access to education from that time.
30. In its second reply the Council made some further comments on events around 2020 and any earlier suggestion it had made that E could attend a mainstream school. It said it had now arranged six hours a week tuition for E to begin in September 2023 along with four hours a week mentoring. It said the specialist school would begin outreach with E from September.
31. In November 2023, after I began this investigation, the Council wrote to Ms D offering a symbolic payment to her. Its letter said that its earlier investigation of her complaint had identified failures. It said that it had not met timescales to review E’s EHC plan and not made provision in line with its content. It said the impact of this on E resulted in it offering a payment of £13,000 to Ms D. The Council said its payment reflected the equivalent of five terms of lost education to E, at a rate of £2400 per term plus £2000 for Ms D’s distress and loss of appeal rights. It offered a further £1000 in recognition of the distress caused to Mrs F also.
32. The Council says it sent this letter after undertaking a ‘holistic review’ of Ms D’s case and giving it “more extensive consideration”. It told us it wanted the chance to acknowledge its errors and their impact.

Findings

The Ombudsman’s jurisdiction

33. The term jurisdiction refers to our legal powers to investigate a complaint. There are two limits on this.
34. First, the question of time. I explained above the Ombudsman cannot always investigate late complaints – those about events more than twelve months before a complaint was made. In this case, Ms D did not complain before March 2023. So, we could only investigate events before March 2022 if there were special reasons to do so. I do not consider there are special reasons in this case that allow for such an investigation.
35. Second, there is the question of ‘alternative remedy’. Even if I considered there were special reasons to investigate events before March 2022, I must also consider if Ms D had another way to pursue her complaint. I consider in July 2021 she had the choice of appealing the contents of E’s EHC plan. She could have done this if wanting the Council to name a different education setting for E other than her home. Or, if she wanted the Council to make a different kind of education provision for E. I can find no special reasons why Ms D could not have done this.
36. So, taking these factors together I do not see grounds to pursue investigation of events pre-March 2022. This date is significant as it is when the Council began considering Ms D’s request to place E in a specialist school (one she had made some months before). At that time Ms D had no appeal rights and these would not become available again until November 2023 when the Council issued a final revised version of E’s EHC plan. It is within our legal powers therefore to look at the Council’s response to the request and action taken as a result.

Findings on the substance of the complaint

37. The Council acknowledges that it was at fault for its response to Ms D’s request to consider specialist schooling for E. Its correspondence explains something of its reasons, although I consider it could have explained more clearly why this was.
38. In my view the faults highlighted by this complaint are that the Council failed to:

• ensure it carried out transition planning and commissioned specialist assessments for E in line with his July 2021 EHC plan;
• review E’s EHC plan between July 2021 and March 2023. It should have reviewed the plan between March 2022 when Ms D asked again for E to attend school and no later than July 2022, twelve months after its first issue;
• issue a revised EHC plan in the statutory timescales following the March or May 2023 reviews. It did not issue a final amended version until November 2023. I also question the Council’s decision to carry out two reviews in a short timescale given that at the time of the first it was already committed to finding E a specialist school place. I accept it wanted to commission further assessments, but I do not consider this could justify maintaining the plan, given that it was at the same time acknowledging it needed amending;
• secure a specialist placement for E before October 2023, despite having agreed this need in principle in May 2022;
• offer any alternative provision for E before September 2023 despite knowing Ms D no longer wished to home-educate him from March 2022 and the pressure she was under in doing so.

39. I consider these faults have caused an injustice to E. He suffered a significant loss of service and his lengthy absence from formal education will make his integration harder.
40. I also consider these faults have caused an injustice to Ms D. She has experienced distress having to manage E’s needs without education support. Ms D has also asked me to consider if referrals for specialist support may have been made sooner had E been in formal education. The Council has set out steps taken after March 2023 to undertake specialist assessments to help inform E’s EHC plan. So, Ms D was not without all support throughout the time E was out of school. But I consider her point still valid because before March 2023 the Council did not pursue the assessments as it should have done. So, this too has contributed to her distress.

The Council’s offer of remedy

41. I note the Council’s offer of a symbolic payment to Ms D and its apology. I consider it is not best practice for the Council to make such gestures outside of its complaint procedure. This is because at both stage one and stage two it can offer to provide a remedy to a complaint.
42. However, we will always welcome when a Council is willing to remedy injustice at whatever point in a complainant’s journey it does so. While unusual therefore, the Council’s further complaint response does not justify a finding of fault. And I consider on balance it has provided a fair and proportionate remedy for Ms D’s injustice.
43. I have taken this view after considering the Ombudsman’s guidance on remedies. This suggests a symbolic payment up to £2400 per term appropriate where a child has lost education because of a Council service failing. In this case the period under investigation, where E did not receive an adequate service from the Council is around five terms.
44. In addition, I consider the distress payment to Ms D properly recognises the challenges and strains put on her by having to meet E’s needs without adequate support. It was also good practice for the Council to also recognise the consequent impact on Mrs F also.
45. I have considered if there is any further non-monetary action I could recommend. I understand Ms D will have continuing concerns for E’s education given the delay in him starting school and the challenges he faces. The Council’s past failings will also leave her concerned about if his needs can be met moving forward.
46. However, we are unable to recommend any action which may go to the heart of the education E receives. As this is something set out in his EHC plan which carries a right of appeal and which should be reviewed in line with the law. But I would encourage the Council to keep in mind Ms D’s past experience should she want to raise any concerns about the pace of E’s reintegration to school. And to consider offering an early review of his EHC plan if there is any suggestion that his progress is stalling.

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Final decision

47. I uphold the complaint finding fault by the Council causing an injustice to Ms D and E. I have completed my investigation as the Council has offered a satisfactory remedy for that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman