Summary: we uphold Ms M’s complaint that the Council failed to arrange alternative provision for B for one term in summer 2022 and took too long to amend his EHC Plan following the March 2022 annual review meeting. However, the Council’s offer of £2,000 is an appropriate remedy for the injustice caused.

The complaint

1. Ms M complains about her son B’s education. Ms M explained B has struggled since pre-school. She complains he has missed a considerable amount of education and she has had to battle to secure appropriate support. She believes B has been let down.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We cannot investigate most complaints about what happens in schools, unless the schools are delivering special educational provision set out in Section F of a child’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)

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How I considered this complaint

6. I have considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

7. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. The Council issued B’s first Plan on 14 April 2021.
8. Ms M complained to the Council on 25 July 2022. B was a pupil at a special school and had just reached the end of Year 5. He had not attended school since January 2022. Following a review of B’s EHC Plan, the Council was searching for an alternative special school. Ms M’s letter of complaint described the difficulties B had faced since he was in nursery. She explained the toll the situation was taking on the family, and her wish for B to return to education in a school that could meet his needs.
9. The Council responded on 8 November 2022. The Council explained it had agreed to look for a new school when attempts to reintegrate B to school following the March 2022 annual review meeting for his EHC Plan had proved unsuccessful. The search had yet to identify a school that could meet B’s needs. The Council said it was providing tuition equivalent to two hours a day while the search continued. I understand tuition started in September 2022.
10. Unhappy with the Council’s response, Ms M asked the Council to respond at the second stage of its complaints process on 30 November 2022. She said things were no further forward than when she first complained, and the Council had not explained how it was going to sort out the problems. She complained the Council had only provided tuition from September 2022. She said if the Council would not name her preferred school in B’s EHC Plan, she would appeal to the Tribunal.
11. The Council responded on 21 December 2022. The Council apologised for the time it had taken to respond to Ms M’s complaint. The Council said it had arranged tuition at the earliest possible opportunity once the Council was made aware attempts to reintegrate B to school had been unsuccessful. The Council had still not found a school for B.
12. Unhappy with the Council’s response, Ms M asked the Council to respond at the third stage of its complaints process.
13. The Council issued a final amended EHC Plan on 17 March 2023 which said B would attend a non-maintained special school. B started at the school on 1 March 2023.
14. The Council responded at the third stage of its complaints process on 26 October 2023. The Council acknowledged that it had failed to arrange alternative provision for B between 25 April and 18 July 2022, and the annual review had taken too long. The Council apologised and offered a payment of £2,000.
15. Unhappy with the Council’s response, Ms M complained to the Ombudsman.

Consideration

16. I can see from Ms M’s detailed account that B has faced many challenges during his time at primary school. I was pleased to see the Council found a new school, although I understand it is taking time to build up his attendance.
17. The Ombudsman is an administrative review. We do not make decisions about a child’s education. Our powers to investigate complaints are set out in law. The law also limits the complaints we can consider.
18. We investigate complaints against councils and some other bodies. We can only investigate complaints about what happens in schools when they are delivering special educational provision set out in an EHC Plan.
19. This means I cannot consider Ms M’s complaint about B’s education before the Council issued his first EHC Plan on 14 April 2021.
20. We also expect complaints to be made within 12 months of a person becoming aware of the matter they complain about. We may investigate late complaints, but only if there was a good reason the complaint could not have been made sooner. This is because the longer an investigation takes place after the event, the harder it is to establish what happened. And the more time that has passed, the less likely we would be able to recommend a meaningful remedy if we found fault.
21. Ms M complained to the Council on 25 July 2022. The Council took longer than we would expect to respond to Ms M’s complaint. Ms M complained to us as soon as she received the Council’s final response. I will, therefore, consider Ms M’s complaint about what has happened since 25 July 2021, even though this is more than 12 months before Ms M complained to us.
22. In effect, this means I will be considering B’s education from the beginning of term in September 2021 to 1 March 2023 when B started at his new school.
23. During this period, B stopped attending school regularly, the Council reviewed his EHC Plan, and he moved schools. I will address each in turn.

B stopped attending school regularly

What happened

24. Regular school attendance was a challenge for B for some time before my investigation begins. B had moved to a special school in April 2021, and efforts were underway to secure his reintegration and increase his attendance.
25. Ms M says she struggled to get B to return to school after the half term break at the beginning of November 2021. A team around the family meeting on 3 November 2021 brought together professionals from the school, the Council and the health service. It was agreed the school would provide one-to-one support for one hour a day to try to secure B’s return to school. B attended daily with a parent until Christmas.
26. At the end of January 2022, Ms M asked for a new school because she did not feel B was making any progress. The school held an (early) annual review meeting for B’s EHC Plan in March 2022, and the Council began the search for a new school. B stopped attending altogether on 24 April 2022.

Education for children who do not attend school

27. Parents, schools and councils all have responsibilities to ensure children receive a suitable education.
28. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
29. The Education Act 1996 says every council shall “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))
30. 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)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
31. The education provided by the Council must be full-time unless the 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)
32. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
33. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
34. The Local Government Ombudsman has issued guidance to councils on how we expect them 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? Ensuring children out of school a good education, published in July 2022)

Consideration

35. There has clearly been a lot of disruption to B’s education. My job is to evaluate the Council’s response.
36. The initial plan following the November 2021 half term was to work towards B’s return to school. When this proved unsuccessful, I understand the school continued to engage with B through flexible learning, both on site, face-to-face, with a tutor and remotely. B stopped attending altogether on 25 April 2022.
37. The Council arranged tuition from September 2022. In its complaint response, the Council has acknowledged that it should have arranged tuition from 25 April 2022 when B stopped attending school. The Council offered a payment of £2,000 to acknowledge the tuition it should have provided between 25 April 2022 and the end of the summer term.
38. I am satisfied this is an appropriate response. The Council should have stepped in when the school’s attempts to meet B’s needs proved unsuccessful. This was clearly the case by 25 April 2022. The Council has offered a symbolic payment to acknowledge the tuition it should have arranged. I consider this a satisfactory remedy.

Reviewing B’s EHC Plan and finding a new school

What happened

39. Ms M was unhappy with attempts to reintegrate B to school and asked for a new school. The school held an early annual review meeting for B’s EHC Plan in March 2022. The Council agreed to amend B’s Plan and began the search for a new school. The search took much longer than expected, and the B did not start at a new school until March 2023. B remained on roll at his old school, and the Council provided two hours of tuition a day for three days a week in addition to support from the school until B started at his new school. Ms M says the old school lost interest when she said she wanted B to move.

Reviewing Education, Health and Care Plans

40. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
41. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
42. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
43. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
44. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.

Consideration

45. Following the review meeting in March 2022, the Council should have issued B’s amended Plan in June 2022. The Council issued the Plan in March 2023, more than 8 months late. Although the Courts have recognised that 12 weeks is a challenging timescale to amend a Plan, the importance of making the necessary changes quickly is self-evident. For this reason, we find fault when a council fails to meet the deadline, even when factors outside the Council’s control contributed to the delay.
46. Instead, we look to see what the Council did to mitigate the impact of any delay and take this into account when consider whether the delay caused injustice and whether we should recommend a remedy.
47. The Council provided two hours of tuition a day for three days a week to support the old school. While this is clearly not the same as full-time attendance at a new special school, it demonstrates the Council considered B’s needs. Government guidance recognises that one-to-one tuition is more intense than classroom learning and a child may receive fewer hours tuition at home than they would at school.
48. I find the Council was at fault in taking too long to amend B’s EHC Plan, but I consider the Council took action to mitigate the impact on B.

Conclusions

49. Having carefully considered all the evidence, I uphold Ms M’s complaint that the Council failed to arrange alternative provision for B for one term in summer 2022 and took too long to amend his EHC Plan following the March 2022 annual review meeting. However, I consider the Council’s offer of £2,000 an appropriate remedy for the injustice caused.

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Final decision

50. I have ended my investigation. I consider the Council has already offered a satisfactory remedy for the injustice caused by the faults I have identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman