Summary: Ms X complained the Council failed to provide an education for Y, a child in her care, since September 2022 and failed to review Y’s Education, Health and Care (EHC) Plan when their needs changed. The Council delayed holding an annual review meeting of Y’s EHC Plan and failed to provide some of the specialist provision set out in their Plan for four and a half terms. The Council agreed to make a payment to Ms X to recognise the injustice caused to her and Y because of the Council’s fault.

The complaint

1. Ms X complained the Council failed to provide an education for Y, a child in her care, since September 2022 and failed to review Y’s Education, Health and Care Plan when their needs changed. Ms X said this caused Y to miss over a year of education and social interaction and caused her significant distress and put Y’s placement with her at risk. Ms X wanted the Council to provide an appropriate educational placement for Y.

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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. The law says we cannot normally investigate a complaint when someone has 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
5. 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

6. I investigated how the Council reviewed Y’s EHC Plan and the provision it provided from September 2022 until February 2024.
7. I did not investigate the suitability of the placement or type of placement named in Y’s EHC Plan. That is because Ms X had a right of appeal to the SEND Tribunal if she disagreed with it, and it was reasonable for her to use that appeal right.

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How I considered this complaint

8. I read the documents Ms X’s representative provided and discussed the complaint with them on the phone.
9. I considered the documents the Council sent in response to my enquiries.
10. Ms 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

Relevant legislation and statutory guidance

Education, Health and Care plans

11. 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 tribunal or the council can do this. 
12. 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. The annual review begins with consulting the child’s parents or carers, 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.
13. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school and secondary to post 16 education.   

Maintaining the EHC Plan

14. 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). 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)  

Appeal rights

15. 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.
16. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

The Council’s alternative provision

17. The Council has an Access to Education (A2E) service. Its website states it provides a flexible, short-term, education service for children and young people who cannot attend school through exceptional circumstances. This could include medical reasons and permanent exclusions.

What happened

18. Y lives with Ms X under a special guardianship order as they cannot live with their birth parents. Ms X cares for Y alone and has other caring responsibilities.
19. Y has some additional needs which means they require an EHC Plan to set out the specialist provision they should receive. In April 2022 Y was due to transition to a new school in September 2022.
20. The Council issued an EHC Plan for Y. It said they should go to the school they were already attending until July 2022, and it named the type of school Y should attend from September 2022 as a special school for pupils with learning and additional needs. The Plan said Y had high levels of need and required 25 hours one-to-one support. It set out the special educational provision (SEP) Y needed as:
• structured intervention for developing social communication skills for one hour a week – working up to a small group of three peers;
• regular opportunities for small group learning for two hours a day;
• paired reading with an adult for 20 minutes a day;
• emotional literacy and resilience programme for 40 minutes a week working up to a small group of 3 peers; and
• a touch type programme for 30 mins a week.
21. The Council consulted with specialist schools but did not identify a suitable placement for Y. Y should have started a new school in September 2022 but was not able to as they did not have a named school to attend.
22. The Council made a referral to its A2E service who began offering Y two hours of tuition a week from October 2022. Ms X asked the Council to stop the sessions in mid-November as she did not feel they were appropriate. After further discussion the Council reinstated some teaching and Y received three hours for a week in December.
23. Ms X sent the Council a copy of a multidisciplinary assessment in December 2022 that had been commissioned by its own social workers. The assessment said Y fulfilled the criteria for Autistic Spectrum Disorder (ASD) and Attention Deficit and Hyperactivity Disorder (ADHD). It recommended the Council amended Y’s EHC Plan to reflect the diagnoses and consider a residential educational placement.
24. From January to July 2023 the Council arranged for Y to receive three hours face to face teaching and two hours of online teaching a week. In February 2023 one hour of the face-to-face teaching was a group session.
25. The Council began arranging an annual review of Y’s plan at the beginning of March 2023 and the meeting was held on 29 March. It recorded Y had not met the outcomes specified in their EHC Plan as they had not been allocated a school. It showed they were making some progress in the academic subjects they received tutoring in.
26. The Council issued a draft amended plan for Ms X’s comments on 13 April, initially without referencing the information in the multi-disciplinary assessment. Ms X commented and it then reissued the draft including Y’s new diagnoses.
27. Ms X complained to the Council in mid-April 2023. She said she needed support to maintain Y’s placement with her as their high level of need and lack of school placement was putting it at risk. She said Y had no education and she had no respite from caring for them. Ms X said the Council had not responded to the multidisciplinary assessment or the concerns raised about their high level of need. She said Y needed constant supervision and requested a residential placement.
28. The Council issued a final amended EHC Plan for Y on 28 April 2023. It recorded Y had ASD and ADHD, needed a specialist placement but did not name a placement, and the specialist provision remained the same as the previous Plan. The Council told Ms X of her appeal right to the SEND Tribunal if she disagreed with the content of the plan or the placement specified in section I.
29. The Council responded to Ms X’s complaint at the beginning of June. It said:
• it had consulted specialist settings but none could meet Y’s needs.
• the amended EHC Plan was issued four weeks after the annual review meeting and so there had been no delay;
• it apologised Y was receiving alternative provision for longer than it would have hoped.
30. Ms X’s representative responded and asked how Y’s needs could be met in a day placement, if one could not be identified. They asked how a placement would be found if all the schools had already been consulted twice without finding a placement.
31. The Council responded and reiterated its previous response. It said it would consider a financial remedy for frustration and missed full time education and would contact Ms X again in ten working days. It said it would make appropriate alternative education available until it identified an education setting.
32. The Council wrote to Ms X again in July 2023 and apologised. It offered Ms X £1950 for the education Y had missed. It did not provide a remedy for the frustration it had identified Ms X experienced.
33. Ms X asked the Council if Y could have more education in August 2023. In September the Council offered an extra two hours a week (five hours of tuition face to face and two hours of online learning) starting from October 2023. It stated it knew Y needed more support than they were currently receiving.
34. Dissatisfied with the Council’s response, Ms X complained to us.
35. The Council wrote to Ms X again in November 2023 and said Y’s provision from the beginning of December would increase to 9 hours and 45 minutes a week.
36. In response to my enquiries the Council said Y’s provision could not provide all the SEP specified in their Plan. It said it could not provide any group intervention provision as Y was not with other children. The Council said A2E was able to provide individual provisions.

My findings

Education and Provision

37. Y had an EHC Plan that set out the type of placement they needed and the SEP they required. The Council issued an amended EHC Plan in April 2023 and told Ms X of her right of appeal to the SEND Tribunal if she disagreed with the content of the Plan including the type of placement. It was appropriate for Ms X to use that appeal right and therefore I have not considered the Council’s decision not to specify a residential placement for Y. Y’s EHC Plan is due for the next annual review within the two months following this decision. Ms X will receive a new appeal right to the SEND Tribunal which she could use if she remains dissatisfied with the placement/type of placement named in Y’s EHC Plan.
38. Ms X did not appeal against the 2022 or 2023 Plan and so the Council had a duty to provide the SEP in Y’s EHC Plans.
39. The Council knew prior to September 2022 that Y was going to be without a named school to attend. It therefore should have provided alternative provision to ensure Y received the SEP in their EHC Plan. The Council arranged three hours of provision from October 2022, increasing to five hours in January 2023. The Council reviewed the education offered in March 2023 and said Y was not able to work on the targets in their EHC Plan. It said it would provide appropriate alternative education in July 2023 and accepted in September 2023 that Y needed additional provision. It increased the offer to seven hours in October 2023 and nine and three quarters in December 2023.
40. Whilst Y has received some provision and academic tutoring, the Council accepted it could not provide the group interventions and I have seen no evidence the Council provided the SEP set out in paragraph 20. That is fault and meant Y missed out on some of the provision in their EHC Plan for four and a half academic terms between September 2022 and February 2024. The Council has already paid Ms X £1950 to recognise the education Y missed between September 2022 and July 2023, however that is insufficient to fully remedy the injustice caused to Y. I recommended a further remedy below.
41. The fault also caused Ms X distress and frustration particularly as Y was at home for most of the time. Ms X told the Council the lack of appropriate education was putting Y’s placement with her at risk as she struggled to manage their high needs at home, whilst also maintaining her other caring responsibilities. The Council acknowledge that Ms X had been caused frustration but did not take any action to remedy that injustice. Therefore, I have made an appropriate recommendation.

Reviewing the EHC Plan

42. Ms X sent the Council a professional report showing Y had new diagnoses and recommending changes to Y’s EHC Plan in December 2022. The Council did not take any action to consider that report or call an annual review until March 2023. That was fault and caused Ms X frustration.
43. When the Council held the annual review it issued the draft and amended final EHC Plan in line with the timescales set out in the statutory guidance. There is no evidence of fault in the Council’s actions.

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Agreed action

44. Within one month of this decision the Council will:
• Write to Ms X and apologise for the injustice caused to her and Y by the Council’s faults.
• Pay Ms X a further £6325, in addition to the £1950 it has already paid, to recognise the specialist provision Y did not receive for four and a half terms. This is calculated in line with our guidance on remedies.
• Pay Ms X a symbolic amount of £750 to recognise the frustration and distress caused to her by the Council’s faults.
45. Within three months of this decision statement the Council will review its commissioning arrangements to ensure it has suitable suppliers of alternative provision for children not in school and to establish if the current offer is sufficiently broad to meet need.
46. 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 I have recommended.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and to avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman