Summary: Ms X complained that the Council failed to respond or help when her son was unable to attend school, even though he had an Education, Health and Care (EHC) Plan. Ms X also complained about the delay in finalising the amended EHC Plan. We have found fault causing injustice. The Council has accepted the recommended ways to resolve this.

The complaint

1. The complainant, Ms X, complained that the Council:
1. delayed in responding to the complainant’s request for help from the Special Educational Needs (SEN) department, made in September 2022, when her son (Y) was struggling to attend his secondary school;
2. declined the complainant’s requested provision from the Council’s outreach service and failed to provide alternative education in line with Y’s EHC Plan;
3. delayed in completing Y’s EHC Plan’s annual review held in August 2023; and
4. failed to respond promptly to the complainant’s emails and telephone calls and the case notes were inadequate.
2. Ms X says that she and Y have been caused avoidable distress and frustration. As an adopted child, Ms Y says that Y needs adults to be trustworthy and reliable. Ms X also expressed concern about how the Council was dealing with other pupils, who may be out of school.

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The Ombudsman’s role and powers

3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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).
8. 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

9. The Council has considered the complaint. I have investigated the first three complaints. I have not investigated the fourth complaint because the Council has upheld this complaint. But I have considered the impact on Ms X and Y by this fault.

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How I considered this complaint

10. I have considered Ms X’s written complaint and spoken to her on the telephone. I made enquiries of the Council and considered its written response.
11. I issued a draft decision statement to Ms X and to the Council. I have taken into account their further comments when reaching my final decision.

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What I found

Special Educational Needs (SEN)

12. An EHC plan sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the SEN provision and Section I names the suitable placement.
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.

Annual reviews

15. Councils oversee delivery of EHC plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
16. EHC plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
17. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC plan it must do that “without delay”.
18. A recent court case stated that a council should issue a final amended EHC plan within 12 weeks of the annual review.

Children out of school because of medical needs

19. Section 19 (s19) of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
20. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
21. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
22. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
23. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]).
24. Parents are entitled to home educate their children under section 7 of the Education Act 1996.

Key facts-Events of 2022 and 2023

25. Y is adopted. Ms X says he struggled while at primary school and was badly affected by the Covid-19 lockdown period. Y is identified in his EHC Plan as having significant social and emotional needs due to the trauma experienced in his early childhood.
26. In September 2022, Y was finding it too difficult to attend his secondary school, School B, because of his high anxiety. The Council says that School B authorised the absences. In late September, the Council says that School B told it that Ms X had withdrawn Y from school and was home educating.
27. At this point, Ms X contacted the Council asking for help and alternative provision. The Council has accepted that it failed to respond to Ms X’s requests for help until May 2023. And it has accepted that its record keeping was poor. During this period (September 2022 to May 2023), Ms X was struggling to ensure Y received some education and social engagement.
28. The Council says that it accepted a duty to provide alternative education to Y under s19 in June 2023. Ms X says she was exploring the possibility of having an ‘Education Otherwise Than At School’ (EOTAS) which she considered could provide a therapeutic educational package for Y based at home and funded by the Council.
29. In July 2023, the Council’s SEN Panel refused the request for alternative education because it considered there should be a review of Y’s EHC Plan first. It also considered that Y did not require alternative provision or outreach work and that he may be better placed in a smaller independent school. The Panel recommended that the Council should consult possible schools.
30. In July, there was an annual review meeting. The Council agreed to amend Y’s EHC Plan and wrote to Ms X to tell her this, a couple of days outside the statutory timescale of four weeks from the annual review meeting.
31. The Council consulted three schools. Two declined admission, the third school did not respond. Ms X says the Council did not tell her about the outcome of these consultations.
32. Because of a misunderstanding between relevant departments, the Council arranged for individual home tuition to begin. A tutor, to whom Y related well, started to work with him. But this was abruptly stopped, the Council says that this was because the tutor was unwell (which Ms X disputes). Ms X says that Y was adversely affected and lost trust in the education system.
33. In November 2023, there was a meeting about the draft EHC Plan, issued after the annual review. Ms X says that she asked for amendments to the draft because some of the information was incorrect. But she did not hear from the Council.
34. The Council says that, in November 2023, it invited Ms X to view a fourth school. But she declined this. Ms X says that this is not the case. She emailed the Council and the school about arrangements, but she did not hear from the Council. Ms X was fed up having to chase the Council for responses and she gave up trying.
35. Ms X also considered the Council showed a lack of understanding of Y’s educational needs, and she could not risk the Council causing him more distress.
36. Ms X therefore decided that it was best for her to arrange Y’s education and is now doing so. It is also the case that Y had been out of school for too long to make a return to secondary formal education feasible.
37. In relation to Ms X’s concern about other pupils missing education, the Council says that between September 2022 to July 2023, 431 pupils were known to its Education Welfare Team, who were not attending school. And 211 pupils missing from education.

Events of 2024

38. In January 2024, the Council sent Ms X its final complaint response. It stated that it recognised the avoidable distress caused to Ms X and to Y by its actions. The Council explained that its SEN team was trying to improve its communication with parents/carers. But there was a national problem for councils in dealing with the rise in EHC plans and assessments.
39. The Council apologised to Ms X and to Y for their distress.
40. The Council issued a final amended EHC Plan in May 2024. The Plan states that Ms X is home educating Y under section 7. If Ms X disagrees with the EHC Plan, she has the right of appeal to the SEND Tribunal.
41. The Council says that its recent Ofsted inspection recognises that there have been improvements in its communication and effective arrangements to meet the needs of pupils with special educational needs. The Council says that 90% of its EHC plans are now issued within timescales.

Findings

42. There was a clear delay in dealing with Ms X’s September 2022 requests for help when Y became unable to attend his named school. To the Council’s credit, it fully accepted that this was the case, when it investigated her complaints, and that it only became properly involved in May 2023. It also accepted that the case records were inadequate. My view is that this amounts to fault.
43. There was also a delay after the annual review of August 2023. It has taken the Council some nine months (rather than three months) to issue an amended final EHC Plan. My view is that this too amounts to fault.
44. What injustice have these faults caused? The Council accepted it had a duty to provide alternative education to Y under s19 in June 2023. I appreciate that the Council considers Ms X was home educating at this stage and therefore there was not a significant loss of education. But, had the Council responded promptly, back in September 2022, when Ms X first approached the Council seeking alternative education, I have to ask whether the Council would have accepted a s19 duty earlier.
45. On balance of probabilities, given the Council decided that Y needed a smaller independent school, it would have made this decision sooner than June 2023. Moreover, when the Council did respond in May 2023, it decided by June 2023 that its duty to provide alternative education under s19 was triggered.
46. So, I consider that, but for the faults, the Council would have accepted the duty to provide alternative education to Y by December 2022. My view is that this duty would have run to November 2023 when Ms X decided it was more appropriate for her to arrange Y’s education. That equates to two and a half terms of education.
47. However, I cannot say what the alternative education might have entailed or whether Ms X would have accepted what the Council offered. I have taken this into account when recommending a remedy for this.
48. Accordingly, the Council’s delays in responding to Ms X’s requests for help and alternative education, and the significant delay in issuing an amended final EHC Plan, has meant that Ms X has been left responsible for Y’s education. It is to Ms X’s credit that she has now arranged education for Y.
49. It is also the case that Y, as an adopted child with previous childhood trauma, would respond badly to being let down by adults and to having a tutor, with whom he had engaged well, suddenly leaving. The Council appreciates this but says that this was due to unexpected illness, so was not fault.
50. I am not able to make any finding on this.

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Agreed actions

51. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
52. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
53. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
54. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

55. Y had specific difficulties which impacted on his education. I do not consider we can put Y back in the position he would have been but for the Council’s faults. Therefore, I have looked at a symbolic payment.
56. Within one month of the final statement, the Council has agreed to:
1. make a symbolic payment of £4,000 to Ms X which she can use for Y’s benefit (£1,500 per term);
2. I appreciate the Council has apologized to Y. But it will send a written apology letter to Y explaining that the Ombudsman has found fault causing him an injustice;
3. make a payment of £500 to Ms X for her avoidable distress, frustration and delays, and for her loss of faith in the Council’s ability to make appropriate educational provision for Y; and
4. I had asked the Council to consider whether there were other pupils with special needs who may have been affected by the same faults in this case. The Council has referred to its recent Ofsted inspection which evidences improvements in its EHC plan processing. I do not consider I can take this matter further.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. The Council had already found fault and I endorse those findings. The Council has agreed the ways to remedy the injustice caused. Therefore, I am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman