Summary: The Council was at fault for delaying changes to Ms B’s son’s special educational needs support, which included a delay to finding him a new school. It could also have done more to ensure that he received any sort of education while he was out of school. It then failed to deal with some of Ms B’s complaints properly. It has agreed to make symbolic payments to Ms B and her son to recognise their injustice, to respond to any outstanding complaints, and to take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Ms B, complains that the Council delayed making changes to her son’s special educational needs support after a review in January 2023. I refer to her son as C.
2. Ms B says this delay meant there was a corresponding delay in naming a new school for C. She says this, in turn, meant he was out of school from March to September 2023 (after she withdrew him from his existing school because of concerns about his behaviour and his mental health).
3. Ms B also complains that the Council took too long to answer her complaints and, in two cases, failed to send her its final responses at all.
4. Ms B says the Council’s failings caused C to miss education, and caused distress to C, herself and their family.

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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. 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)
7. 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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How I considered this complaint

8. I considered:
• Information from Ms B and the Council.
• Relevant law and guidance, including the ‘Special educational needs and disability [SEND] code of practice’, which tells councils how to deliver support to children with special educational needs.
• The Ombudsman’s guidance on remedies.
9. Ms B 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

The Council’s responsibilities

Alternative education

10. 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. (Education Act 1996, section 19). We refer to this as ‘section 19’ provision.
11. 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)
12. In the guidance, we recommend that councils:
• Consider each child’s individual circumstances and be aware that they may need to act, whatever the reason for absence (except for 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 when making decisions.
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
13. The guidance also makes clear that councils remain responsible for delivering section 19 provision, even when they arrange for schools or other bodies to carry out their functions on their behalf.

Special educational needs support

14. 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.
15. The EHC plan is set out in sections which include section F (the special educational provision needed by the child or the young person).
16. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)
17. The duty to arrange this provision is owed personally to the child and is non-delegable. This means if a 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)
18. If a council proposes to amend an EHC plan, it must send the child’s parent an amendment notice. (SEND code paragraph 9.194). This should happen within four weeks of the date of the review meeting. (R on the application of L and others v Devon County Council (2022) EWHC 493)
19. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice. (SEND Code paragraph 9.196)

Complaints

20. The Council’s two-stage complaints procedure says the Council will answer stage 1 complaints within 20 working days, and stage 2 complaints within 10 working days – unless a stage 2 complaint is particularly complex and needs longer (in which case the complainant “will be kept fully informed of progress”).

What happened

C’s education and EHC plan

21. At the beginning of 2023, C attended a mainstream primary school. He also had an EHC plan, which said he should receive various support, including a personalised speech and language therapy programme.
22. In mid-January, C’s school told the Council that it could no longer meet his needs. It held an emergency review of his EHC plan and requested that C moved to a new school.
23. The Council agreed to amend C’s EHC plan (although Ms B received no notice of amendment).
24. Ms B requested that C go to a mainstream school with a small, specialist class attached which would be designed to meet his needs. However, the Council’s special educational needs panel decided C’s needs would be better met in a special school.
25. In early March, the Council consulted a mainstream school, in line with Ms B’s wishes. But, in mid-March, the school told the Council that it could not meet C’s needs, and suggested that a special school may be more appropriate.
26. The following day, Ms B took C out of school. She said this was because of “the escalation in his behaviour and deterioration in mental health, and also due to the effects on his brother at the school”.
27. The Council was not aware, at that point, that C was not going to school.
28. The first contact from C’s school to the Council was at the end of April, when it referred C to the Council’s school absence team. It said, “the school environment is having a detrimental and psychological impact on [C’s] mental health and wellbeing”.
29. The school asked the Council who was responsible for delivering education to C while he was not attending. The Council told the school that, although it would “be supportive” of C receiving home tuition, this should be arranged by his school while he remained on the school’s roll. It provided the school with a list of potential tuition services.
30. The school made enquiries about home tuition for C. However, in early May, Ms B made clear that she no longer thought C being out of school (or receiving home tuition) was a good idea. She said that, if no new school had been found for him, he would have to return to his existing school.
31. After this point (until the end of term) C did not either return to his existing school or receive education at home. Furthermore, the Council did not consider taking any further action, either to find a different way of delivering section 19 provision to C, or to enforce his attendance at his existing school.
32. The Council did, however, continue consulting both mainstream schools and a special school. It had no success with mainstream schools, which were either full or could not meet C’s needs. And it did not receive a response from the special school before the end of the school year, despite chasing it for a response in June and July.
33. In mid-September, the Council identified a new special school, and named it in C’s EHC plan.

Ms B’s complaints

34. Ms B made a complaint about the Council’s children’s social care team (Complaint 1) in early March 2023. The Council acknowledged the complaint shortly after, and it offered Ms B a telephone conversation with a manager.
35. After speaking with the manager, Ms B did not want to take the complaint any further.
36. In May, Ms B made a complaint about C being out of school (Complaint 2). The Council responded 21 working days later.
37. Ms B was dissatisfied with the Council’s response and asked that her complaint be escalated to stage 2 of the Council’s procedure. The Council responded – after Ms B had chased this up – 29 working days later.
38. In late July, Ms B complained that the Council’s special educational needs team had made a referral about her to its social work team (Complaint 3). The Council responded 27 working days later.
39. Ms B was dissatisfied, and asked to escalate her complaint. The Council acknowledged her request, but did not send her a stage 2 response.
40. In late September, Ms B made a complaint about the delay to C’s amended EHC plan (Complaint 4). Following a meeting, she agreed not to pursue the complaint (because the Council issued the amended plan).
41. In early October, Ms B made another complaint about the Council’s children’s social care team (Complaint 5). The Council responded to this complaint 75 working days later.
42. Ms B was unhappy with the Council’s response, and asked to escalate her complaint. The Council acknowledged her request almost a month later, but did not send her a stage 2 response.
43. Ms B made a further complaint in October about respite care for C (Complaint 6). The Council resolved the matter and Ms B decided she no longer wanted to pursue the complaint.
44. The Council told Ms B in February 2024 that it would review her complaints and work out whether any responses remained outstanding. It is unclear what the outcome of this review was.

My findings

EHC plan delay

45. The Council did not send Ms B a notice of amendment. This means I cannot say exactly when the amendment process should have been completed.
46. However, even when applying the maximum potential timescale of 12 weeks, there was a delay. At the very latest, the Council should have issued C’s amended EHC plan – naming a new school, or confirming that it considered his existing school to be suitable – by April 2023. It did not do so until September.
47. The Council made significant efforts to accommodate Ms B’s preference for C’s education (which was for a mainstream school). And several schools said no. This likely contributed to the delay and provides some mitigation for it.
48. However, the statutory timescale is non-negotiable and therefore the Council was at fault.
49. Had the process been completed on time, C would have only been out of school for a couple of weeks after Ms B withdrew him, and would not, therefore, have suffered a significant injustice.
50. The delay meant C was out of school for a full term and did not get any education, or special educational needs support, in that period (which I have addressed in more detail below).
51. This caused C an injustice. The Council should provide him with a symbolic payment in line with our remedies guidance.

Education while out of school

52. Ms B withdrew C from school, effectively saying it unsuitable for medical reasons (the impact on his mental health).
53. As set out in our guidance, a council, when finding out that a child is not attending school, should consider any evidence (including medical evidence) which helps it decide whether the child is able to attend.
54. The Council did not do this. Both the school and the Council simply accepted
    Ms B’s account of C’s difficulties, and also accepted that C should receive some form of section 19 provision until a new school was found.
55. Having accepted that C needed section 19 provision, the duty was then on the Council to deliver it.
56. The Council tried to transfer this duty to the school, saying that – as C remained on roll there – any home education was for the school to arrange.
57. However, regardless of who delivered C’s section 19 provision (and it was not obviously unreasonable that it would be his school which did so), the responsibility for its delivery – or lack thereof – lay, ultimately, with the Council.
58. C’s school (on the Council’s behalf) took steps to arrange section 19 provision, but Ms B refused it. This was not the Council’s fault.
59. However, after this refusal, the Council did not consider doing anything else – be it, for example, finding a different way of delivering section 19 provision to C, or enforcing his attendance at his existing school – to ensure that he received any sort of education.
60. In the absence of such a consideration, I cannot say the Council did everything it could to discharge its section 19 duty.
61. This was fault by the Council, which contributed to C’s injustice. The Council’s symbolic payment to C should reflect this. It should also reflect, however, that some education was available to C, but Ms B did not want him to access it.

Ms B’s complaints

62. Ms B made six complaints to the Council. She dropped two of them, and the Council sent responses to a couple of others without any delay significant enough to have caused Ms B a real injustice.
63. However, the Council:
• Delayed its response to Ms B’s stage 2 complaint about C being out of school (Complaint 2).
• Failed to respond to her stage 2 complaint about a referral to children’s social care (Complaint 3).
• Significantly delayed its stage 1 response to another complaint about children’s social care (Complaint 5), and then failed to respond to Ms B’s stage 2 complaint about the same matter.
64. This likely caused Ms B distress and inconvenience. The Council should respond to any outstanding complaints and should make a symbolic payment to Ms B to recognise her injustice.

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Agreed actions

65. Within a month, the Council has agreed to:
• Make a symbolic payment of £1,000 to Ms B, on C’s behalf, to recognise that it delayed his EHC plan amendments and could have done more to ensure that he received an education while he was out of school.
• Respond to Ms B’s outstanding complaints.
• Make another symbolic payment of £250 to Ms B to recognise the injustice she likely suffered because of its delayed and incomplete complaint responses.
66. Within two months, the Council has agreed to provide us with an action plan which sets out how, in future, it will avoid similar failures to amend EHC plans and to ensure that children who are not going to school receive education and special educational needs support.
67. The Council will provide us with evidence it has done these things.

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Final decision

68. The Council was at fault.

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Investigator's decision on behalf of the Ombudsman