Summary: Mrs N complains about the actions of the Council’s Special Educational Needs and Disabilities Team regarding her daughter’s Education, Health and Care Plan. This includes the new placement it proposed for her daughter, the way it arranged transition planning and poor communications. We cannot look at the school named in the Plan, as the Special Educational Needs and Disabilities Tribunal is better suited to look at that issue. But we have upheld some of Mrs N’s complaints; principally about the Council’s lack of oversight of the delivery of the outcomes of the Education, Health and Care Plan and the provision of alternative education for Mrs N’s daughter. The Council has agreed to our recommendations of remedies.

The complaint

1. The complainant (Mrs N) complains about the actions of the Council’s Special Educational Needs and Disabilities (SEND) Team. She complains it:
• did not listen to her or professionals about the type of school her daughter (X) needed. This included a report from Children’s Services (social services), which recommended a residential placement;
• failed to heed warnings from professionals that, because X was not at school, she was falling into dangerous vulnerability;
• sent an Education, Health and Care (EHC) Plan naming a school without consulting her? And not arranging any transition, visit, travel, or enough notice. This did not suit the needs of a child with autism;
• did not provide any continuity in SEND officers; for example one week X had three workers;
• was poor in its communications and updates;
• covered up staff failings;
• named X’s biological father in her EHC Plan.

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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 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)
3. 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. 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)
4. 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.
5. 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)
6. 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

7. I have investigated the Council’s administration of X’s EHC Plan, including timeliness, adherence to the statutory framework and some other administrative parts of the Plan.
8. I have not investigated the contents of Sections B, F and I of the EHC Plan, for the reasons set out at paragraph 11.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs N;
• made enquiries of the Council and considered its response;
• spoken to Mrs N;
• sent my draft decision to Mrs N and the Council and invited them to provide comments.

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What I found

Legal and administrative background

EHC Plan

10. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.

Content of an EHC Plan

11. We cannot direct changes to the sections of an EHC Plan setting out a child or young person’s needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. In this complaint, that includes the following sections:
• Section B: Special educational needs;
• Section F: The special educational provision needed by the child or the young person;
• Section I: The name and/or type of educational placement.

Maintaining the EHC Plan

12. 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)

Reviewing EHC Plans

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
14. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) A council must inform the child’s parents or the young person of their right to appeal the decision to the SEND Tribunal.

Children not at school

15. 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
16. 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 (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;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

17. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

18. X is a young person with a diagnosis of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). She has had an EHC Plan since 2018.
19. From the autumn term of 2022 X changed school (to what I shall call School 1), a mainstream secondary school. Soon after starting, X was struggling with attending the main school site.
20. From January 2023 School 1 arranged for X to attend a therapeutic arts centre (the arts centre), as an alternative, for a day and a half a week, to attending school.
21. The annual review of X’s EHC Plan was in March; early due to X being on a reduced timetable with alternative provision. The record of that review meeting notes:
• Mrs N had wanted the placement in a mainstream school to work but could see it was not and supported the request for a change to a specialist setting. The alternative provision at the arts centre was working well;
• the school’s staff said X was on a reduced timetable and alternative provision, although this was not always working well in the short-term;
• a recommendation that an extra session at the arts centre be sought;
• an acknowledgement that little progress had been made towards the outcomes in X’s EHC Plan;
• the NHS’s Child and Adolescent Mental Health Service (CAMHS) had recommended a flexible approach and part-time timetable, which was in place;
• Mrs N had suggested a residential placement. The Council’s SEND Lead Worker advised any residential settings would have to be part funded by social care and only if no other suitable alternative was available locally.
22. The Council sent a draft EHC Plan at the beginning of April. The draft:
• noted that School 1 had seen a Court Order that said X was to have no contact with her biological father;
• had unchanged Sections B and F (except for the addition of goals for post-16 education and preparation for adulthood);
• said its Section I would be updated when the Council issued the final Plan.
23. The Council began to look for an alternative placement for X. The Council asked social care and CAMHS for advice to inform the placement search.
24. In early May School 1 contacted the Council to advise X’s behaviour was such that it had decided she should not attend school. She could continue to attend the arts centre and it would also set up online learning provided by a specialist provider (Organisation B).
25. On 19 June the Council issued its revised EHC Plan. It named School 1 in Section I.
26. Later in June X was a victim of an assault. The police and the Council’s children’s services became involved with the family.
27. Mrs N continued to request the Council find a residential school placement for X. Internal Council emails noted that Children’s Services were making efforts to keep X in the family home. That Service’s view was X needed a special school but did not agree she needed a residential school.
28. In late June the Council’s SEND Officer had a meeting involving a psychotherapist from CAMHS. The psychotherapist’s view was X was at risk of harm from her choices, she needed more support from social services and there was a risk of family breakdown.
29. At the end of July, the Council’s SEND panel approved the Council searching for an independent special day school placement for X.
30. At the start of the new school year, X’s SEND Officer contacted School 1. She noted X was attending the arts centre for a day and a half a week. She asked it to confirm what else it was providing X. School 1 responded to advise it had set up online learning from Organisation B for the rest of the time.
31. Towards the end of September, the Council found a school for X (School 2), in a different town to where X lived. Its SEND Officer advised Mrs N in a telephone conversation. The Council’s case notes say Mrs N refused the offer, because of School 2’s distance from their home, X’s ability to get there due to her disabilities and her preference for a residential placement.
32. At the beginning of October, the Council says its SEND service was restructuring, so X’s case moved between SEND teams (and so SEND Officers). Both X’s old and new officers discussed with Mrs N the Council’s decision on the new placement.
33. At the beginning of October, the Council issued an amended EHC Plan. The main change was naming School 1 until the end of the first week in November and School 2 after that. It advised Mrs N that, if she had not already done so, she should contact School 2 directly to make admission arrangements.
34. The EHC Plan at first named X’s biological father in it. Mrs N complained about this and the Council sent an amended version to School 2’s admission’s team soon after. School 2’s administrator advised they had not shared the old version with others in the School.
35. The Council’s Head of Service wrote to Mrs N:
• apologising for its error in naming X’s father on the form;
• noting Mrs N’s preference for X to have a residential placement in a specialist school. The Council’s view was there was no supporting evidence for that need;
• noting the travel distance to School 2 was around 45 minutes each way. While not insignificant, the Council’s view was that was reasonable for a young person of secondary school age;
• noting it had already advised Mrs N of her rights of appeal in its early October letter.
36. In early November a social worker who was carrying out an assessment of X’s needs contacted the Council’s SEND Team, noting X’s time at the arts centre was due to end the following day. She noted the SEND Officer had advised there was no start date set up for School 2. So she asked for the provision at the arts centre to continue.
37. The new SEND Officer considered X’s transition arrangements. She contacted School 2. It noted difficulties it had in contacting Mrs N. It wanted to arrange a visit and then provide X with opportunities for online learning and visits, building up to her attending full-time.
38. On X’s scheduled start date School 2 contacted the SEND Officer to ask if X was attending that day. The School noted it had not been able to contact Mrs N.
39. The SEND Officer contacted the arts centre. She also contacted the Council’s social care team who in turn offered to support X in visits to School 2. School 2 and the Council agreed that X could continue to attend the arts centre during a transition period.
40. The Council’s records show it had contacted Mrs N about transport, but she had refused offers, due to her concerns about the route.
41. Mrs N complained. The Council’s complaint response noted:
• that, regarding the number of officers, while there had been some changes in officers, the number was not excessive, with four workers over a five-year period;
• the school placement (School 2) was the result of an extensive search. The provision was within the travel guidelines set out by the Government;
• it noted concerns from Mrs N about X travelling in a car. But all its drivers had undergone checks to ensure safety for vulnerable people;
• all X’s EHC Plans had been reviewed either in line with the annual review process, or when there was a change of provision.
42. X did not start at School 2. Around 10 days after she should have started, the Council’s SEND Officer took advice on how to deal with X’s non-attendance.
43. The Council has sent the arts centre’s records for the period to March 2024. But its own records have no further case notes, or other documentation, until March 2024. This record is of an annual review of X’s EHC Plan. X was still not attending School 2. Instead, she was continuing to attend the arts centre. The note of the review records the school was providing “online work”, although Mrs N’s view was this did not work, as X was not motivated.
44. Mrs N complained to the Ombudsman. In response to my enquiries, the Council advised:
• it had sought to provide a flexible programme for X at School 2, which followed CAMHS’ recommendations;
• it was hoping the arts centre could provide mentor support for X, to support her placement;
• in response to Mrs N’s complaint that its Children’s Services had advised that X needed a residential placement, it advised it did not have a letter on file from Children’s Services, and the SEND Officer did not remember receiving a letter. The SEND service did have a letter from CAMHS and its Specialist Special Educational Needs Service (SSENS). These made recommendations about the type of placement. But they did not specify a residential placement;
• it was aware of the advice about X having no contact with her father. But as he held parental responsibility, its system automatically used his details. The Council accepted this error would have been distressing to the family. It reassured Mrs N it had not sent the EHC Plan to X’s father;
• while at School 1, the offer of alternative provision had not been equivalent to full time hours, as it was in addition to the hours X was accessing at school;
• once X stopped attending School 1, it offered X online learning from Organisation B. But X had not accepted that;
• since X left School 1, it had put in place transition support.

Was there fault by the Council?

Whether the Council should have named a residential placement

45. Mrs N’s complaints about the advice about residential placements are not something the Ombudsman will investigate. This is because the suitability of the placement named in the amended EHC Plan is something Mrs N and X could have appealed.

The Council sent an EHC Plan naming a school without consulting Mrs N

46. In June the Council had issued a final EHC Plan naming School 1. Shortly after it began searching for a new placement for X. It did involve Mrs N in this, although, ultimately, naming a school she did not agree with. It spoke to Mrs N by telephone to advise her of this and sent the revised EHC Plan a few weeks later.
47. There was no fault in this process. Draft EHC Plans do not name a particular educational establishment in Section I. This is because the EHC Plan is a description of a child or young person’s needs and provision to meet those needs. The school is not a need or provision, but a way of meeting those needs. And the Council has a record it told Mrs N of its decision. To have issued a further draft would have delayed Mrs N’s appeal rights, which was the proper place for her to challenge the contents of the Plan.

Not arranging any transition, visit, travel, or sufficient notice

48. The Council sent its final EHC Plan a month before the date X was due to start at School 2. That was not an unreasonable notice period, given it had already advised Mrs N of the placement.
49. The Council advised Mrs N to contact School 2 directly to discuss admission arrangements. I do not criticise that advice. But the School then had difficulty contacting Mrs N. Given the Council was ultimately responsible for the delivery of X’s EHC Plan, it should have had processes in place to be more proactively involved in those arrangements (when, as here, there were difficulties).
50. Instead, the Council has no records of further contact, until the week before X was due to start at School 2. Then the Council’s SEND Team (seemingly prompted by contact from a social worker) noted steps it was taking to arrange a transition package. That was too close to the start date and was fault. The opportunity of a visit should have been explored earlier with Mrs N and X.
51. I do not find fault with the travel arrangements, as the Council has a record it suggested options to Mrs N. The suitability of the school, because of how X would get there, is something the Tribunal could have looked at. So it is not something the Ombudsman will consider further.

Alternative provision/delivery of the EHC Plan when X was not at school

52. The Council is responsible for X’s education. And, while it is for the Council to decide how to organise its service, it must deliver suitable, full-time education unless it decides full-time education would not be in the child’s best interests.
53. In X’s case CAMHS had recommended she should receive reduced, flexible provision. There are notes in the Council’s files of it checking with School 1 what educational provision it was arranging for the time after X stopped attending it. So for the early period, there was no fault.
54. But, after the March 2023 annual review of X’s EHC Plan, I have found fault for the following reasons.
• The EHC Plan review recommended that an extra day for X at the arts centre be explored. But in September 2023 (see paragraph 30) School 1 advised X was attending the arts centre for a day and a half a week. As that was the same provision as X had been receiving earlier, this suggests the extra day was not actioned. The Council has no records to confirm this either way, which points to a lack of oversight.
• After X moved to School 2’s responsibility, she continued to attend the arts centre. But it is unclear from the Council’s records what other, if any, educational provision she was receiving. In the March 2024 EHC Plan review Mrs N mentions online learning, but also that it was hard to get X to engage with this.
• In response to my enquiries, the Council advised School 1 had offered the online provision from Organisation B, but X had refused to access it. But in the records the Council sent me, I cannot find any record the Council was aware at the time X was not using the provision offered. I would have expected to see sufficient oversight from the Council that would have ensured it picked up on this earlier and sought solutions.
• The annual review record accepts limited progress in meeting the outcomes in X’s EHC Plan. Yet there is little reference in the Council’s records of it addressing that issue. While I acknowledge the challenges the Council faced in delivering the Plan, given X’s absence from school, it was responsible for this delivery. As an example of where the Council could have been more pro-active, in May 2023 School 1 decided that X could no longer attend the school. The Council then issued a revised final EHC Plan in June. But there was no reflection in the Council’s records of how this change of circumstances might affect the ability to meet the goals set out in X’s EHC Plan.
• The Council has a lack of records from November 2023 (the proposed start date at School 2) to March 2024 (the annual review of X’s EHC Plan). It seems X remained on School 2’s role. But the lack of records suggests inadequate oversight by the Council during this period.
55. My decision is the Council allowed the situation to drift, with inadequate oversight. This was in regard to both the alternative provision and X’s EHC Plan. I consider that was fault.

The number of SEND officers

56. During a period of restructuring there was some inconsistency in officers. This was unfortunately at the time of X’s transition between schools, which I have addressed above. But, overall, I agree with the Council that, outside this period, the turnover in officers was not excessive and so not fault.

Communications and updates

57. There are some gaps in communication – most notably about transition planning and contacting Mrs N before the proposed move to School 2.

The Council covered up staff failings.

58. My review of the evidence from Mrs N and the Council finds no evidence to show any attempt by the Council to cover up fault by its officers.

The Council named X’s biological father on her EHC Plan

59. The Council did name X’s biological father on an amended EHC Plan, despite an instruction on the draft Plan that school staff should have no contact from him. The Council has accepted that was fault. On Mrs N’s contact, the Council quickly reissued the Plan with this information removed. It wrote to Mrs N apologising for the fault.

Did the fault cause an injustice?

60. There has been considerable disruption to X’s education since May 2023. But it is difficult to say:
• how much of the education X missed was as a direct result of fault by the Council; and
• if the Council had kept more oversight of the outcomes of X’s EHC Plan, whether more could have been done to help her meet these outcomes.

That uncertainty is itself an injustice that demands a remedy.

61. I have found some fault with the Council’s monitoring of X’s admission and transitional arrangements to School 2. But I need to take account of the fact Mrs N did not engage with the offer or seek to make arrangements with the School. I understand her reasons where because she disagreed with the Council’s decision to name School 2 in Section I of X’s EHC Plan, which she did not believe was suitable for X.
62. But, as already noted, the merits of the decision to name School 2 in X’s EHC Plan is for the SEND Tribunal, not the Ombudsman. So much of the uncertainty about X’s start at School 2 stems from the dispute about the placement. This remained unresolved due to the lack of consideration by the SEND Tribunal. But, on the balance of probabilities, it is unlikely X would have attended School 2, even if the Council had liaised better and not delayed in offering the transition arrangements. That affects the injustice for that part of the complaint.
63. There was avoidable distress to Mrs N and X in naming X’s biological father on the form. The Council swiftly issued a revised form and apologised to Mrs N. But given the distress this likely caused, this also warrants a remedy by way of a symbolic payment.

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Agreed action

64. 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. When this is not possible we may recommend the Council makes a symbolic payment to acknowledge the injustice. We may also recommend a council reviews its policies and procedures.
65. I recommended that, within a month of my final decision, the Council:
• Write to Mrs N and X apologising for the faults I have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Make Mrs N a symbolic payment of £500 for the uncertainty of whether X might have received more alternative education but for the faults.
• Make Mrs N a symbolic payment of £500 for the uncertainty of whether X might have met more of the contents of her EHC Plan but for the faults.

Mrs N should use these payments for X’s educational benefit as she sees fit.

• Make Mrs N a payment of £100 as a symbolic remedy for the distress caused by naming X’s biological father in her EHC Plan.

The Council has agreed to these remedies.

66. The Council has also agreed that, within three months of my final decision, it will produce an action plan for how it can better monitor, at the earliest opportunity, failings in both delivery of EHC Plans and alternative provision. This should include a review of the faults identified in X’s case.

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Final decision

67. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman