Summary: Mr and Mrs X complain about how the Council handled their daughter, S’s, Education, Health and Care Plan provision. They say it delayed putting provision in place to ensure S’s needs were met. This meant that S was left with little educational and therapeutic provision for longer than necessary. Mr and Mrs X would like the Council to apologise for the delays and pay them for the distress its actions have caused. We found the Council was at fault for the delays in the assessment process. The Council agreed to our recommendations and will address the injustice its actions caused to Mr and Mrs X as well as S.

The complaint

1. Mr and Mrs X complain that since 2021 the Council failed to provide their daughter, S, with:
• suitable full-time education; and
• provision named in section F of her Education, Health and Care Plan.
2. They also complain the Council was late to reply to their corporate complaint when they made it in December 2022.
3. Mr and Mrs X said this negatively impacted S and caused the family avoidable distress. They also say that because of the delays and the stress she now refuses to go to school altogether.
4. Mr and Mrs X would like the Council to provide education to S without further delay, apologise for not securing this sooner and make service improvements to make sure this does not happen to another family. They would also like the Council pay for the education S missed out on.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. 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.
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
10. 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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What I have and have not investigated

11. We have investigated the Council’s actions with regards to lost education and Special Educational Needs (SEN) provision after mid-June 2022. This is because:
• we consider Mr and Mrs X’s complaint about the Council’s actions before January 2022 to be late. Mr and Mrs X complained to the Council in December 2022 and we consider we could look at what happened from January 2022; and
• Mr and Mrs X made a SEND Tribunal appeal which means that we cannot investigate or remedy any injustice arising from lack of education and/or SEN provision between December 2021 and mid-June 2022 when the SEND Tribunal issued its Consent Order.

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How I considered this complaint

12. I considered the information Mr and Mrs X sent me, and I have spoken to them about their complaint.
13. I considered the Council’s response to my enquiries.
14. Mr and Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Alternative Provision of education for children

15. 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))
16. 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))
17. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
18. 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)
19. 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)
20. 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;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• 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.
21. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
22. 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.
23. 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.
24. 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.
25. A compulsory school week in the UK is 32.5 hours including breaks. S’s school provides 25 hours of education each week, excluding breaks.

Part-time timetable

26. The Department for Education’s non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
27. Schools should notify councils of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, ‘Out of school…out of mind?’, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

SEN provision

28. 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. 
29. 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) 

Council’s complaint policy

30. The Council’s complaint procedure has three stages. The Council says, at stage one, it will attempt to put right the reported problem but if this is not possible it will reply to the complainant within six days. At stage two, a senior manager will review the complaint and provide an answer within 15 working days, or ask for more time if necessary. At stage three the Council’s standards officer will review the complaint and reply within 20 working days. If a complainant remains unhappy with the Council’s response after this, they can bring their complaint to the Ombudsman.

What happened

Background: what happened before June 2022

31. Since September 2020 S was attending her primary school on a reduced timetable. In September 2023 she was due to transfer to a secondary school.
32. In March 2021 S’s primary school asked the Council for help in getting her back into school on a full timetable.
33. At the end April 2021 Mr and Mrs X asked the Council to assess S for an EHC Plan.
34. In October 2021 the Council issued S’s draft EHC Plan, and the Council finalised this plan in December 2021. The EHC Plan named S’s mainstream primary school where she was on roll before the assessment of need began.
35. Throughout December 2021 and January 2022 Mr and Mrs X chased the Council for answers about the Council’s school consultations. Around this time Mr X asked the Council to consult with his preferred special school for S.
36. The Council’s records show that it had consulted this special school, and that it told the Council it was at capacity and could not accommodate S. Both Mr X and the Council chased the school for more explanation as to why it would not be able to meet S’s needs. In mid-January 2022 the Council told Mr X that its panel would decide if a special school was suitable for S and let him know by mid-February 2022.
37. In late February 2022 the Council told Mr and Mrs X that it decided S did not require a special school, and her needs could be met at a mainstream school. It also wrote to S’s mainstream school and asked it to provide S with all the provision set out in her EHC Plan it issued in December 2021.
38. Mr and Mrs X disagreed with the Council’s decision and appealed S’s EHC Plan to the SEND Tribunal.
39. In late March 2022 S’s school wrote to the Council and expressed concern it had been named in her final EHC Plan as it could not meet her needs.
40. In May 2022 the Council agreed to name Mr and Mrs X’s preferred special school in S’s EHC Plan and a month later it contacted the SEND Tribunal to say that it conceded the appeal.

Events June 2022 onwards

41. In late June 2022 the SEND Tribunal issued a Consent Order which said:
• Mr and Mrs X agreed with the Council’s position to name their preferred school in S’s EHC Plan;
• that a full hearing was not necessary; and
• the Council had to name S’s preferred special school in her final EHC Plan.
42. The Council’s records suggest that it did not issue an updated EHC Plan for S naming the preferred specialist school for her.
43. In September 2022 S attempted to attend the special school however the placement broke down shortly after.
44. Following this, the Council agreed to a personal budget for S until July 2023 to enable her to get education other than at school. This was supposed to cover IT resources, educational activities and sensory equipment for her.
45. Mr and Mrs X complained to the Council about S’s continuing lack of education and Special Educational Needs provision in December 2022 and said her EHC Plan still did not name a suitable special school in section I.
46. The Council issued its stage one response however it has no record of when this happened or what it said.
47. Mr X was not happy with the Council’s response and in late April 2023 asked the Council to consider his complaint at stage two of its complaints procedure.
48. A few weeks later Mr X met with the Council to discuss stage two of his complaint. His main points of complaint were the lack of education before and after S had an EHC Plan, the previous plan naming her mainstream primary school and ongoing lack of provision.
49. In early June 2023 the Council issued its stage two response to Mr and Mrs X’s complaint. Mr and Mrs X were not happy about the Council’s response and asked it to consider their complaint further in late June 2023.
50. In early September 2023 Mr X chased the Council for a response and provided further information for his complaint.
51. In early October 2023 the Council issued its final response to Mr and Mrs X’s complaint. It:
• said that S’s school should have alerted the Council to her part-time timetable that began in 2020;
• accepted it was at fault for the delay in issuing the final EHC Plan for S;
• accepted it was at fault for not providing S with education after April 2022; and
• offered a remedy payment of £2,050. This consisted of £1,800 for delay in assessment and lost education and further £250 for Mr and Mrs X’s time and trouble in pursuing their complaint.

Analysis

Lost educational and SEN provision

52. The Council’s records show that in 2021 and until July 2022 S was on roll with her primary school. However, the records also show that she was attending on a part-time timetable. The Council told us that it was not aware of this because the school did not alert it to the part-time timetable. The Council also said that it was aware of concerns with regards to S’s attendance since 2018. Its records show that it made referrals for specialist provision for S to be considered as early as March 2018 and then more recently in mid-March 2021 and May 2022.
53. Because of this we consider the Council failed to monitor S’s part-time timetable as it should have during the period we are investigating, and this is fault.
54. We cannot say if S would have reintegrated into school had the Council monitored the part-time timetable and considered if it should have provided alternative provision to S. This caused the family avoidable uncertainty.
55. After the SEND Tribunal’s decision in mid-June 2022 records suggest that S did not get any education or provision from her EHC Plan. This is fault.
56. The Council’s records show the Council did not issue S’s updated EHC Plan naming the special school Mr and Mrs X wanted her to attend in September 2022. This is also fault. This should have happened within 11 weeks of the SEND Tribunal’s Consent Order issued in mid-June 2022.
57. S’s EHC Plan said that she needed 1:1 support, for adults working with her to follow advice from the Occupational Therapy service, and emotional literacy sessions.
58. Additionally, S’s EHC Plan called for a carefully planned transition into secondary school which did not take place.
59. This means that S, an already vulnerable pupil, was left without the support she needed to achieve education and develop her skills to the best of her abilities.
60. In September 2022 S briefly attended her preferred school, but the placement broke down. Following this the Council agreed to and funded alternative provision for S. We do not consider the Council at fault for this, as it is expected the Council would consider and meet S’s needs in other ways if she could not attend school. This is what happened.
61. However, records show that the Council’s actions were delayed. In the October complaint response to Mr and Mrs X the Council acknowledge that after S’s school place broke down, she was still not receiving any education. This is fault.
62. The Council apologised and offered Mr and Mrs X a symbolic payment for the delay in finalising the EHC plan and loss of education. The Council told us the remedy was for two terms of lost education, and for the six months of delay in finalising S’s EHC Plan. It decided to offer £1,800, which is the lower end of our scale at £900 per term of lost provision.
63. We consider the Council’s remedy is too low considering:
• the lack of SEN and educational provision during this time; and
• the amount of delay in finalising the EHC Plan.
64. Because of this, we recommend the remedy should be £1,300 per term of lost education and SEN provision. This is because we consider the injustice this caused to the family is significant enough to pay a higher remedy for the period of time the Council offered to remedy.
65. In the last 12 months we made recommendations to the Council about what service improvements it needed to make to ensure timely EHC Plan assessments and proper considerations of its alternative provision duties. Because of this we will not make further service improvements as we consider the ones we have already made suitably address the faults identified during this investigation.

Complaint handling

66. The Council acknowledged and accepted that its replies to Mr and Mrs X’s complaints were late. It explained that this was caused by various factors such as:
• staff annual leave;
• change in complaint management tool; and
• staff changes.
67. The delays caused Mr and Mrs X avoidable distress and uncertainty, and the Council recognised this and offered to pay them £250 for their time and trouble.
68. We consider this remedy is in line with our guidance and suitably recognises the injustice the delay caused to Mr and Mrs X.
69. During the investigation we have also discovered that the Council did not keep accurate records of all its complaint responses. We consider this to be fault. In this case it has not materially affected our findings and the Council assured us that it has made changes to how it stores its complaint responses.

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Agreed action

70. Within one month of the date of the final decision statement, the Council will:
• apologise to Mr and Mrs X and S for its failure to provide S with the support she needed and the distress and frustration this has caused the family. 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;
• pay Mr and Mrs X £250 it originally offered to remedy the distress, frustration and unnecessary time and trouble they experienced; and
• pay Mr and Mrs X, on behalf of S, £2,600 to recognise the injustice caused by the loss of education and SEN provision required by her EHC plan. The family should use the remedy as they feel best to support S’s social and educational needs.
71. The Council will provide us with evidence it has complied with the above actions.

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Final decision

72. We found the Council was at fault for not monitoring S’s part-time timetable appropriately and ensuring she got suitable education and the SEN provision from her EHC Plan. The Council agreed to remedy the injustice its actions caused to Mr and Mrs X as well as S. Our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman