Summary: Mr X complained the Council failed to provide suitable education for his child from October 2022 until October 2023. Mr X also complained the Council delayed in updating his son’s Education and Health Care (EHC Plan) and placed his son at an unsuitable school. We found fault with the Council failing to provide suitable education for Mr X’s son for half a term. We also found fault with the Council completing the annual review process six-weeks outside the statutory timescales. The Council agreed to apologise to Mr X and pay him £1,000 for his son’s missed education.

The complaint

1. Mr X complained the Council failed to provide suitable education for his child from October 2022 until October 2023.
2. Mr X says the Council did this by placing his child at an unsuitable school, failed to meets his special educational needs and delayed in updating the Education and Health Care Plan.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), 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. If we are satisfied with a council’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)
8. 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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How I considered this complaint

9. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mr X provided comments on my draft decision which I considered before making my final decision.

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What I found

Rules and Regulations

EHC Plans

11. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
12. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
13. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
14. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
15. 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
16. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
17. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014)
18. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
19. In 2022, the case of R (L, M and P) v Devon County Council said when a read proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
20. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Alternative Provision of education for children

21. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
22. 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))
23. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
24. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
26. 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 (with the exception of 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 in coming to decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
27. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
28. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
29. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
30. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

31. Mr X’s child, who I shall call Y, lived in a different council area before October 2022. Y attended mainstream education in this other council area. Y’s previous council produced an EHC Plan for Y in October 2019. The Council reviewed Y’s EHC Plan’s with the final review completed on 9 June 2022 when the Council wrote to Y’s mother to advise it would be maintaining the previous EHC Plan.
32. Y moved to Bedford Borough Council’s area in the academic year 2022/2023. Mr X first contacted the Council on 19 October 2022 about Y moving into the Council area. On 20 October 2022, the Council discussed Y with Mr X. Mr X told the Council Y had been out of education for five weeks but he believed that mainstream education would not be suitable for Y. The Council said Y’s EHC Plan said mainstream education was suitable for Y but it would consult both a mainstream and SEN school for Y.
33. The Council said it would look to review Y’s EHC Plan on getting an Educational Psychologist’s report and said it would arrange this once Y started school.
34. The Council consulted with both an SEN and mainstream school for Y’s placement.
35. The SEN school said it was not a suitable placement for Y.
36. On 29 November 2022, the mainstream school accepted Y and said Y could start from 4 January 2023.
37. Mr X complained to the Council about it failing to provide education for Y on 30 November 2022.
38. The Council consulted with a Tuition provider for Y on 5 December 2022. The Tuition provider said it could provide a tutor once the tutor in question received DBS clearance. This clearance did not come before 4 January 2023.
39. Mr X and Y visited the school twice in December 2022.
40. The Council provided its complaint response on 20 December 2022 upholding Mr X’s complaint about delays in providing education for Y. The Council apologised for the delay and confirmed Y would be starting at school from 4 January 2023.
41. Y started attending mainstream education on 9 January 2023 on a part-time timetable.
42. On 18 January 2023, the mainstream school excluded Y.
43. On 25 January 2023, Y started to attend the Council’s education centre for excluded children. Y began on a reduced timetable of two hours each day awaiting further assessment.
44. The Council held a meeting with the education centre on 19 April 2023. By this date, Y was receiving three hours of education each day. The education centre told the Council it considered Y could not currently manage more than three hours per day but it was seeing an improvement in Y through his time there.
45. The Council received the Educational Psychologist’s report on 11 May 2023.
46. Mr X made a second complaint to the Council on 7 June 2023. Mr X complained about the education on offer at the education centre and was unhappy the Council had placed Y in mainstream education in January 2023.
47. On 28 June 2023, the Council held the annual review meeting for Y’s EHC Plan.
48. On 29 June 2023, the Council provided it Stage 1 complaint response. The Council said:
• It had consulted an SEN school for Y but it declined a place for Y while a mainstream school offered a place for Y.
• It had promised to complete an updated Educational Psychologist assessment to consider at Y’s next annual review.
• Following Y’s permanent exclusion from mainstream education it placed Y at an education centre to support Y’s reintegration into education.
• It placed Y at the education centre on a reduced timetable and the education centre did not believe that Y could cope with more education.
• It was now considering a suitable setting for Y as part of his EHC Plan review.
49. Mr X sought escalation of his complaint to Stage 2 on 30 June 2023.
50. The Council sent a notification to Mr X on 19 July 2023 that it intended to amend Y’s EHC Plan.
51. The Council produced its Stage 2 complaint response on 27 July 2023. The Council said:
• It acknowledged it had made a mistake in failing to provide education from 29 November 2022 until 4 January 2023 for Y and offered £300 in Amazon vouchers.
• It placed Y at a mainstream school because this was what was named in his previous EHC Plan.
• Following Y’s exclusion it provided education at an education centre at a level it considered Y could access.
• It had now instructed the school to provide Y with additional education.
52. Mr X told the Council he would not be sending Y back to the education centre in September 2023. The Council responded to advise this placement remained open to Mr X and Y and it would continue to look for a new school for Y in the meantime. The Council also offered one to one tuition for Y which Mr X rejected.
53. On 3 August 2023, the Council issued Y’s Final EHC Plan noting the intention to name a special educational school as Y’s educational placement.
54. On 17 October 2023, an independent SEN school confirmed it could take Y after the October half-term. Y started at this school on 1 November 2023.

Analysis

EHC Plan review

55. An EHC Plan review is completed when a Council has decided to either, maintain, cease or amend a plan.
56. The previous council completed the last annual review process of Y’s EHC Plan on 9 June 2022 when it told Y’s mother it would be maintaining Y’s EHC Plan. I cannot investigate matters about the previous council in this complaint.
57. When Y moved to the new council area, this Council was under a duty to review Y’s EHC Plan. The Council had to do this either within 12 months of the EHC Plan’s last review or three months after the date of the transfer, whichever is the later date. The later date for Y’s EHC Plan was 12 months from the last annual review.
58. The Council had until 9 June 2023 to complete the annual review process of Y’s EHC Plan.
59. The Council only issued the amendment notice on 19 July 2023. This meant the Council completed the annual review of Y’s EHC Plan nearly six weeks outside the statutory timescales. This was fault.
60. The Council explained the reason for this delay is because it decided to obtain an Educational Psychologist assessment of Y to inform a review of the EHC Plan. The Council says this Educational Psychologist assessment was delayed because of Y’s exclusion from school. While this explains the reason for the delay in completing the annual review, this does not remove the Council’s fault. This is because the Council received the Educational Psychologist’s report 10 weeks before it completing the annual review process. There was no reason good it could not have completed this sooner. The Council should apologise for this delay.
61. Following issuing the amendment notice in July 2023, the Council issued Y’s Final EHC Plan on 3 August 2023. The Council issued the Final EHC Plan within a suitable timescale and I do not find fault.

Providing education for Y

62. When Y moved to the Council’s area it became responsible for providing education for Y. The Council became responsible for Y’s education when Mr X contacted the Council on 19 October 2022 to make it aware of Y. Following Mr X’s contact, the Council liaised with schools and took suitable steps to find an educational setting for Y.
63. Mr X has expressed concerns the Council placed Y in a mainstream school in January 2023. I do not find fault with the Council’s decision. This is because Y’s EHC Plan stated mainstream education was suitable for Y and the SEN school the Council consulted said it was not suitable for Y. The Council made an appropriate decision to place Y in mainstream education on the information it had available to it.
64. While I do not find fault with the Council placing Y in mainstream education, the Council failed to put this in place until 9 January 2023.
65. Mr X made the Council aware that Y had not been in education this academic year for more than 15 days on 20 October 2022. As such, the Council’s Section 19 duty to provide education outside of school was engaged from the sixth school day following the 20 October 2022; this was 4 November 2022.
66. The Council would have been aware on 20 October 2022 it would not be able to find a school placement for Y by 4 November 2022. The Council should have put in place steps to provide Y with an education as an interim measure. While the Council tried to arrange one to one tuition in December 2022 it failed to put this in place. The Council failed to provide education for Y for half a term from 4 November 2022 until 9 January 2023. This was fault.
67. Since 9 January 2023, the Council has put in place suitable education for Y through to the end of term. From 9 January 2023 until 18 January 2023, the Council put in place education for Y in a mainstream school. As noted above, from the information available to the Council, this would be considered suitable education before his exclusion.
68. Following Y’s exclusion from school, the Council started to provide education to Y a week later through its education centre until the end of term. The Council took suitable steps when providing this education by considering Y’s individual circumstances and deciding to provide a part-time timetable for Y. Throughout Y’s time at the education centre, the Council kept Y’s education under review. The Council also consulted with the education centre about the education it could provide Y based on what Y could cope with. While Y was not receiving a full-time education, the Council has met its duty by providing an education which it considered was suitable for Y’s needs.
69. I do not find fault with how the Council provided education for Y from 9 January 2023 until the end of July 2023.
70. From September 2023 until 1 November 2023, Y received no education. The failure of Y to receive education during this time was not through the fault of the Council. The Council had offered a place at the education centre for Y and one to one tuition while it continued to find a suitable school placement for Y. Mr X declined this offer of education for Y and I cannot find the Council at fault for this. From 1 November 2023, Y has received education at an SEN school.
71. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
72. Y has missed half a term of education caused by the fault of the Council. During Y’s time out of education, Y received no input from the support detailed in their EHC Plan and was provided with no education.
73. Given this missed education and the potential impact this had on Y, the Council should pay Mr X £1,000 for the lost education.

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Agreed action

74. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mr X and pay him £1,000 for the Council’s failure to provide suitable alternative provision of education for Y for half a school term and the six week delay outside the EHC Plan annual review process. Mr X may use this as he sees fit for Y’s educational needs.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman