Summary: Mr X complained the Council failed to ensure his son, Y, received any education and the provision set out in his Education, Health and Care Plan (EHCP). He also complained the Council failed to review Y’s EHCP between September 2020 and October 2022. Mr X complained the Council failed to send out reports before the annual review in October 2022. Mr X complained the Council did not inform him of the outcome of the October 2022 annual review within timescales and delayed responding to his complaints. Mr X said this caused him distress and uncertainty. He said Y missed out on education and EHCP provision. There was fault in the way the Council did not ensure Y received an education or the provision specified in his EHCP. There was also fault in the complaint handling and the Council did not issue its decision letter after the annual review. Mr X was frustrated by the fault and he was put to time and trouble to complain. Y missed out on education and EHCP provision. The Council has agreed to apologise, make a financial payment and remind officers of the Council’s statutory duties.

The complaint

1. Mr X complained the Council failed to ensure his son, Y, received any education and the provision set out in his Education, Health and Care Plan (EHCP). He also complained the Council failed to review Y’s EHCP between September 2020 and October 2022. Mr X complained the Council failed to send out reports before the annual review in October 2022. Mr X complained the Council did not inform him of the outcome of the October 2022 annual review within timescales and delayed responding to his complaints. Mr X said this caused him distress and uncertainty. He said Y missed out on education and EHCP provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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.
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)

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What I have and have not investigated

6. I have investigated Mr X’s complaint from November 2021.
7. I have exercised discretion to consider events in this case back to November 2021. I reference events prior to this for context in this matter. Although the issues complained about relate back to prior to October 2020, I have seen no good reason Mr X did not complain before he did. The Council agreed to investigate this matter from November 2021, one year before Mr X complained in November 2022.

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How I considered this complaint

8. I read Mr X’s complaint and spoke to him about it on the phone.
9. I considered information provided by Mr X and the Council.
10. Mr X 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

Background information

EHCP

11. A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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 tribunal or the council can do this. 
12. 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 EHCP (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHCP. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHCP is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

14. The council must arrange for the EHCP 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 EHCP and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
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 EHCP. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. If the council decides not to amend an EHCP or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. Where the council proposes to amend an EHCP, 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.
18. If the child’s parents or the young person disagrees with the decision to cease the EHCP, the council must continue to maintain the EHCP until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
19. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
20. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
21. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
22. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHCP from the date it agreed to reassess to the date it issues the final amended EHCP.

Alternative provision

23. 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). We refer to this as section 19 or alternative education provision.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. 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)
26. 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
27. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
28. The legislations states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.
29. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

Elective home education

30. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
31. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.

What happened

32. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
33. Y has complex additional needs. The Council issued his EHCP in September 2020. The plan named school B in section I of the plan. The plan detailed various therapies in section F, including Speech and Language therapy (SALT) and Occupational therapy (OT).
34. Y started at school B in October 2020. He attended for three, 90-minute sessions. After this, school B told the Council it could not meet Y’s needs.
35. School B wrote to Mr X in April 2021. He said neither school nor the Council had contacted him in months.
36. School B contacted the Council in September 2021. It raised concerns they had not seen Y in a year.
37. From October 2021 to June 2022, school B and the Council continued to consider and discuss this case. The Council assigned this matter between different officers because of staff leaving the Council.
38. In June 2022 Mr X told the Council the issues had been continuing for years. He stated he wanted to pursue the issues through a formal complaint.
39. The Council contacted the health service in September 2022. SALT and OT professionals advised the Council, Y was on roll at school B, so they were responsible for his provision. They stated Y was not open to any service.
40. In September 2022, school B contacted Mr X. It introduced a new member of staff who had responsibility for Y. School B told Mr X it needed to hold the annual review. Mr X declined to attend the annual review until the Council addressed his complaint. School B held the annual review meeting in October 2022.
41. Mr X complained to the Council by letter in November 2022. He complained the Council did not review the EHCP within 12 months of issuing the plan. He also complained the Council did not get information and advice from all professionals invited to the meeting. He said the Council did not circulate any information to others invited.
42. Mr X sent a separate letter, providing further information for his complaint at the end of November 2022. He said the Council had not told him of its decision to maintain, amend or cease the EHCP within the four-week timescale set out in law.
43. The Council received the complaint letters in January 2023. The Council explained postal strikes delayed it receiving the letters.
44. School B offered SALT in January 2023.
45. The Council sought advice to inform the EHC needs assessment from Mr X, professionals and school B in February 2023.
46. The Council responded to Mr X’s complaint at the end of February 2023. The Council detailed the school gave Mr X 16 days’ notice to attend the annual review meeting. The Council informed Mr X it did not receive any reports from other professionals, as no professional had seen Y. It said it could not share anything before the meeting. The Council admitted it did not hold an annual review in 2021. It upheld this part of the complaint and apologised. The Council proposed to complete a reassessment of Y’s needs to inform and update his EHCP.
47. In March 2023, Mr X declined the offer of SALT and said it did not fulfil the provision in the EHCP.
48. The Council referred Y to a tuition company in April 2023. The tuition company accepted the referral, and the Council advised it was waiting for Mr X to engage with the process. Mr X confirmed to the Council he received contact from the tuition company but needed to consider the options for Y’s education. Mr X told the company he was waiting for a meeting with the Council before he agreed to the tuition.
49. Mr X requested the Council escalate his complaint to stage two in May 2023. Mr X repeated he did not receive a decision letter following the October 2022 annual review. Mr X stated Y received no provision in his EHCP or education since he was not able to attend school B in October 2020. He said the Council wanted to complete a re-assessment of Y’s needs, but the Council did not process this correctly.
50. The Council referred Y for OT and SALT in June 2023.
51. In June 2023, the Council arranged a meeting with Mr X. He requested OT, SALT and the tuition company attend. Mr X also requested the Council provided information on the education choices available to Y, which the Council sent to him.
52. The Council held the meeting at the end of June 2023. Mr X attended, with an educational psychologist, the tuition company and the Council. SALT and OT could not attend as Y was on their waiting list.
53. Mr X contacted the Council in July 2023. He said he did not agree to the reassessment. He also questioned the Council about funding if he chose elective home education.
54. Mr X informed professionals he would electively home educate Y in September 2023.
55. The Council provided its stage two response in September 2023. The Council advised Mr X it was only considering this matter for the year before his complaint, from November 2021. It said Mr X had time to complain before he did. The Council accepted it did not issue the letter following the annual review in October 2022. The Council confirmed it wanted to reassess Y. The response stated the complaint should not have delayed the work with Y. The Council apologised for delays in its complaint handling.
56. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to apologise and make a financial payment.
57. In response to my enquiries the Council accepted it made little progress with this case until the summer of 2022. The Council advised it had difficulty engaging with Mr X. The Council stated it offered SALT and tuition in 2023 but Mr X did not want to progress with the offer.

My findings

Education

58. The law, referenced in paragraph 24, requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The communication between the Council and school B, confirmed the Council was aware Y was not attending school from October 2020.
59. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
60. I am considering this complaint from November 2021. I have seen no evidence of any education provided to Y until the Council referred Y for tuition in April 2023. The Council offered Y suitable education provision in April 2023, but Mr X did not accept this offer.
61. The Council did not ensure Y was provided with an education suitable to his ability until it offered him tuition in April 2023. This is fault and has led to Y missing education for 5 academic terms.

EHCP provision

62. I am considering this complaint from November 2021. I have seen no evidence Y received any of the provision set out in his EHCP until September 2023 when Mr X chose to electively home educate Y. The Council did provide evidence school B offered Y SALT in March 2023, but Mr X turned down the offer because it was not fulfilling the provision specified in the plan. This offer of SALT, while a part of the provision, did not cover all the provision specified in Y's EHCP.
63. The law, referenced in paragraph 13, requires a Council to make sure the child or young person receives the special educational provision set out in section F of an EHCP. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council did not ensure Y received all the provision in his EHCP. This is fault and Y missed provision for 6 academic terms. 
64. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
65. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

Failed to review plan in between September 2020 and October 2022

66. Legislation states the Council must review the plan every 12 months. The Council accepted it did not review Y’s plan in 2021. However, I am only considering this case from November 2021 for the reasons explained in paragraph seven.
67. The Council reviewed Y’s plan in October 2022. Failure to review the plan until this date is fault and Y’s plan was not up to date with his needs.

Failure to follow guidance for the 2022 annual review meeting

68. Legislation confirms the Council should give Mr X two weeks’ notice of the meeting. School B, acting on behalf of the Council, notified Mr X of the annual review meeting 16 days before it intended to hold the meeting. This is more than the two weeks set out in legislation. The Council was not at fault.
69. Legislation also states the Council should obtain advice from others invited to the meeting and circulate the advice to others invited, two weeks before the meeting. I have seen no evidence the Council issued any reports before the annual review. However, no professionals had engaged with Y or Mr X since the Council issued the previous EHCP, so there were no reports to share. The Council has evidenced it tried to source information from health professionals, who advised the Council, Y was not open to the service and school B was responsible for his provision.
70. The Council tried to gather updated information, but as no professionals had worked with Y or Mr X, no updated reports were available. The Council was not at fault.

Failure to issue a decision after the annual review

71. The law says the Council should issue a decision letter to the child’s parent if it will maintain, amend or discontinue the EHCP within four weeks of the annual review meeting. The Council told Mr X it wanted to reassess Y in its complaint response in February 2023. The Council did not issue a decision letter. This is fault and frustrated Mr X.

Complaint handling

72. Mr X complained in two letters in November 2022. The Council said it did not receive the complaints until January 2023. It referenced strikes in the mail service when explaining why the complaint took so long to reach the Council.
73. The Council policy said it should respond to the stage one complaint within 20 days. From the date the Council received the complaint to the stage one response was 33 days.
74. The Council policy allows 20 days to complete its stage two investigation. The Council took 79 days. This delay is fault and frustrated Mr X.

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Agreed action

75. To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for not responding to his complaints in accordance with its policy and not writing to him with the outcome of the annual review. The Council should apologise to Y for not ensuring he received an education or the provision in his EHCP and not ensuring his plan was up to date with his needs. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mr X £200 as an acknowledgement of his frustration and the time and trouble he has spent pursuing this complaint.
• Pay Mr X £6,500 for not providing any education for five academic terms or EHCP provision for 6 terms. This money should be used for Y’s benefit.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the importance of completing annual reviews in line with legislation.
• Remind relevant staff of the importance of issuing decision letters within timescales after annual review meetings.
76. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

77. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X and Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman