Summary: Miss B complained about the education provision made for her child who has special educational needs. We upheld the complaint, finding service failure contributed to Miss B’s child suffering a loss of education provision. The Council has accepted our findings and at the end of this statement we set out the action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Miss B’. Her complaint concerns the educational provision made for her child ‘C’, who has special educational needs. Miss B complains the Council did not react sufficiently when she contacted it to say C’s school was not providing education in line with their Education, Care and Health (EHC) Plan. She said this was part of a wider pattern of failings at the school.
2. Miss B says as a result C did not receive education in line with their EHC Plan for several months. This contributed to C experiencing emotional dysregulation and incidents leading to two exclusions from school in June 2023, shortly before it closed. Miss B also says the events covered by the complaint caused both her and C distress. The impacts included disruption to C’s sleep patterns and Miss B having to reduce her working hours.

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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. (Local Government Act 1974, section 34(3), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of the council to secure educational provision. This is set out in Section F of the young person’s Education, Health and Care Plan.
7. 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. 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. 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)
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)
9. Under our information sharing agreement, we will share our final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted). This will be before any publication on our website.

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How I considered this complaint

10. Before issuing this decision statement I considered:

• Miss B’s written complaint to the Ombudsman and supporting information she provided;
• Correspondence between Miss B and the Council pre-dating our investigation;
• Information provided by the Council in response to my enquiries;
• Relevant law and guidance referred to in the text below.

11. I gave Miss B and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made before finalising the content.

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What I found

Relevant law and guidance

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the arrangements needed to meet them. The EHC Plan has sections including Section F, detailing the special educational provision needed by the child or the young person. Section I sets out the name and / or type of the child or young person’s educational placement. We cannot direct changes to these sections. Only the SEND Tribunal or the council can do this. 
13. The council must arrange for a review of the EHC Plan at least once a year. It must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
14. Within four weeks of a review meeting, the council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. This completes the review (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). 
15. 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 council owes the duty to arrange this provision personally to the child. It cannot delegate it. So, 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)  
16. That said, 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 EHC Plan. But we consider councils should be able to show they have oversight in gathering information to fulfil their legal duty. At a minimum we expect them to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least once a year as part of the EHC Plan review procedure; and 
• quickly investigate and act on complaints or concerns raised that a child is not receiving the provision in their EHC Plan.

17. A council can reassess a child or young person’s education, health and care needs in certain circumstances. This is if requested by the child’s parent, the young person or their educational placement. Or the council may decide to complete a reassessment if it thinks one necessary.
18. If the council undertakes an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess, to the date it issues the final amended EHC Plan.
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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. The education provided by the council must be full-time unless the council decides 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)
21. The law does not define full-time education but children with health needs should have provision equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be less because of its greater intensity. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Key facts

22. In January 2023 C attended a specialist school named on their EHC Plan. It was outside the Council’s area, in a neighbouring Council area (‘Council X’). At that time, Miss B contacted the Council, saying C was not receiving all the education provision set out in Section F of their EHC Plan. She detailed several examples of this. Miss B also alerted the Council to wider concerns she had about the school. For example, highlighting issues such as staff turnover and lack of class teaching.
23. Miss B’s contact coincided with the Council receiving contact from Ofsted, then carrying out an inspection of the school. It had concerns and Council officers from the SEN service and the commissioning service discussed those. A note says they decided to keep “a close eye on developments”.
24. In mid-January the school arranged a review of C’s EHC Plan. It invited the Council, but no-one from the SEN service could attend. The Council says this was because it only had short notice of the date. It says that it suggested to Miss B that it would seek a postponement of the review but she declined. So, the review went ahead and the school sent the paperwork from that to the Council at the start of February. The Council says but for delays in its SEN service it would have then written to Miss B confirming that it would maintain C’s EHC Plan (without changes) within four weeks.
25. Following the review, Miss B remained in regular contact with an officer in the Council’s SEN service who visited the school in mid-February. Other parents had concerns and Miss B copied the officer into correspondence between parents and the school. The SEN Officer and colleagues from the Council’s commissioning service also liaised with Council X to discuss the school. They agreed to await the Ofsted inspection report, while also addressing any concerns about individual pupil provision.
26. In mid-March persistent staffing shortages at the school meant that it closed to children in C’s age group for one day a week.
27. Shortly after that, Ofsted published a negative inspection report about the school. The Council suspended making any new placements.
28. Concurrently, Miss B asked the Council to consider finding an alternative placement for C. The Council liaised with Miss B about the content of C’s EHC Plan to consider if it needed revision before it consulted any alternative schools. Miss B and the Council agreed amendments by the end of the month.
29. At the end of March, the Council noted the school had an action plan to tackle issues raised in the Ofsted inspection. Council emails say it decided to would work with Council X (and a third council) to support the school in implementing this plan. Internal emails show the Council considered Council X should be the main point of liaison between the local authorities and the school.
30. In early April 2023 the school moved C to a different group of pupils, outside of their age range. Miss B expressed concerns at C’s preparation for this move. She also contacted the Council regularly after that expressing concerns the school did not follow agreed communication strategies to meet C’s needs. Also, there remained staffing issues.
31. In early May the Council said it would arrange a ‘crisis review’ of C’s EHC Plan. It repeated this promise two weeks later.
32. From mid-March onward I saw several references in Council emails to officers discussing communication with parents of children at the school. These questioned if the Council should be doing more to set out its approach towards concerns about the school. However, I understand it sent no correspondence to parents, other than discussions around individual children such as those with Miss B around C’s needs.
33. In early June, the school announced it would close at the end of the summer term. The Council again chose not to write to parents to explain in general terms any support it would offer. But it worked individually with parents to identify alternative placements. Case notes say that officers foresaw C’s needs would make it hard to identify a replacement. It approached other education settings who said they could not meet C’s needs.
34. In mid and late June, C received two fixed term exclusions from the school for behaviour incidents. Miss B says the school’s failure to follow agreed strategies, set out in C’s EHC Plan resulted in situations developing when C became emotionally dysregulated.
35. The Council had concerns about the procedure followed by the school for these exclusions. It says it did not want C permanently excluded. So, the Council agreed with the school that it would fund C’s attendance at an alternative provision setting. They attended this for the final weeks of the summer term 2023. The Council also arranged for C to keep the same transport provision to attend the setting as they were familiar with their driver and escort. This was a more expensive option than alternatives.
36. Since September 2023 C has attended the alternative provision around 16 hours a week. Since November they have also had support from a tutor at the alternative provision. In addition, the Council funds some therapeutic support for two hours a week (one hour before January 2024). It has also gradually transitioned C’s transport arrangements.
37. In October 2023 the Council began a process of reassessing C’s education, health and care needs. It issued a draft version of a revised EHC Plan in December and a final version in February 2024. The Plan does not name an education setting for C, saying Miss B will receive a personal budget to provide education other than in school.
38. October 2023 was also when Miss B received a final response to her complaint from the Council. I noted this followed her making a request for the Council to consider her complaint at stage two of its complaint procedure towards the end of July 2023. Miss B said she had to chase the Council to respond. On its website the Council says it aims to answer such complaints within four weeks.

My findings

39. I found no evidence the Council knew of problems with C’s school before January 2023. When it did learn the school was in difficulty, I summarise the approach it took as follows:

• that first, it wanted to wait for the Ofsted report which clarified where the school was failing. It then suspended new placements at the school;
• second, that it wanted information about any action the school was taking (or proposed to take) to improve. It kept itself informed of progress through some contact direct with the school and via Council X which had more regular contact with the school;
• third, running alongside the above, it kept under review the placements of children already at the school.

40. The Council’s approach here must be seen in the context that it faces a high demand for specialist schools. Consequently, I do not find fault in it not immediately looking to move pupils from the school (including C) to alternative placements.
41. However, I question if it did enough to explore Miss B’s specific concerns about C’s provision. I accept this was a challenging situation for Council with stretched resources. Also, that from early March 2022, Miss B explained she wanted to look for an alternative placement for C. The Council deserves credit for working with Miss B when she asked for this and revisiting C’s EHC Plan.
42. But at same time, I note C has complex needs. There was always a likely shortage of specialist schools in or near its area C could access. So, even after Miss B made her request, C would have to remain at the school for some time. It was important their needs set out in Section F of the Plan were addressed with the school.
43. I set out our expectation above that where a council learns of such concerns, it must address these. While I am satisfied the Council had some discussion with the school, I have found no record that details:

• how it specifically scrutinised with the school how it was meeting C’s needs in Section F of their EHC Plan;
• in what areas it therefore found C’s provision inadequate;
• what it did specifically to seek an improvement in C’s provision.

44. The Council’s failure to have a record of these matters is a fault. However, I do not consider this will have caused any specific injustice to Miss B or C. Because the evidence suggests a school in difficulty and a more forceful (or better recorded) intervention by the Council on behalf of C, would not have changed that. So, C’s education from January to July 2023 was always likely to fall short of the expectation set out in their EHC Plan.
45. This in turn leads to a wider consideration about C’s education provision, set out in Section F of their EHC Plan. While I lack evidence of specific enquiry by the Council into the school’s delivery of this provision, it did not challenge Miss B’s statements. And those appear consistent with the difficulties the school was in. So, on the balance of probabilities I find C did not receive education in line with their EHC plan. That was a service failing and therefore a fault. While the sub-standard, or partial loss, of provision to C was their injustice.
46. I also find some fault in the Council’s communications with Miss B. It did keep in touch regularly with her about C’s needs. But it did not set out its general approach towards the failings at the school. This was both following publication of the negative Ofsted report and the announcement of the school closure. This will have caused some avoidable uncertainty, which we consider a form of distress.
47. Turning to events after June 2023, when it became known the school would close, I find the Council has worked hard to try to ensure C continues to receive some education. It intervened as much as it could (given it had no governance over the school) following C’s exclusions. It acted before the end of the summer term to ensure they had alternative provision available to them. And after that it has:

• secured alternative provision for C of around 16 hours a week;
• it has kept this under review and arranged additional therapeutic provision for C;
• ensured C could attend this by arranging a smooth transition of their school transport arrangements;
• undertaken a reassessment of C’s education, health and care needs to ensure there is an up-to-date understanding of those needs, including the impact of events at the school, on C.

48. I recognise that however far these measures go towards meeting C’s needs, they are not a substitute for them having schooling, an ambition both the Council and Miss B share. I have not explored in detail consultations with schools undertaken to date by the Council. I have seen evidence some consultations have taken place. But it is not part of Miss B’s complaint the Council failed to consult any school between March 2023 and February 2024. With the final EHC Plan issued in February 2024, it will be a matter for the SENDIST tribunal to decide if a school (or type of school) can or should be named on C’s EHC Plan
49. But for the time period July 2023 to February 2024, I must record the lack of availability of full-time education for C as a further service failing. While the efforts of the Council recorded above go some way in mitigating the resulting injustice, they cannot mitigate it entirely. C still suffered a loss of provision during those months.
50. Finally, I must also record findings of fault for the Council’s delay in issuing C with a new EHC Plan following the reassessment of their needs begun in October 2023 and for the delay in answering Miss B’s complaint at stage two of its complaint procedure. There was around six weeks delay in each case. The former caused some further distress to Miss B as uncertainty in waiting for the Council to confirm the content of C’s EHC Plan and delayed her ability to exercise her right of appeal. While the latter will also have put Miss B to some unnecessary time and trouble.

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Agreed action

51. The Council accepts the findings set out above. To remedy the injustice caused to Miss B and C it has agreed that within 20 working days of this decision it will:
1. provide a written apology to Miss B in line with our published guidance on remedies (section 3.2) Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Miss B of £4000 to reflect the loss of education provision to C, her distress and time and trouble. The payment is as follows:
1. £1000 per term is awarded for the period January to December 2023 to reflect that C has not had access to full time education capable of meeting the needs set out in their EHC Plan during this time;
2. £500 for the half-term January to February 2024 before C received a new EHC Plan when this continued;
3. £250 to reflect Miss B’s distress caused by the Council’s communication gaps when responding to the school failure and delays in issuing C’s EHC Plan following reassessment and her complaint.
52. The Council has also agreed the following service improvement - that within three months it will prepare a communication plan with parents, for use when it learns of a school failing or closing within its area, or where children from its area attend. This is to ensure parents in such cases understand the approach taken by the Council towards questions such as how it will monitor school improvements or help children relocate to different schools.
53. The Council has agreed to provide us with evidence when it has complied with the above actions.

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Final decision

54. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss B and C. The Council has accepted these findings and agreed action that I consider will remedy that injustice. Consequently, I have now completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman