Summary: Miss X complained about how the Council provided a suitable education for daughter, Y, and how it met Miss X’s needs as a carer. There was fault in how the Council delayed reviewing Y’s Education Health and Care plan, failed to keep her education under review when she was not attending school, failed to assess Miss X’s needs as a carer and how it communicated with her. This caused Y to miss out on some education and caused both Miss X and Y significant, avoidable distress. The Council agreed to apologise, pay them a financial remedy and make arrangements to review their social care needs. It also agreed to review how it identifies and monitors remedial action when responding to complaints.

The complaint

1. Miss X complains the Council has failed to ensure her daughter, Y, received a suitable education since 2019. She says the Council failed to:
• update Y’s EHC plan, including naming a suitable school and ensuring the plan met Y’s needs;
• provide alternative education when Y stopped attending school;
• review Y’s EHC plan or provide alternative education when the school removed Y from its roll in April 2023;
• offer Miss X a parent carer assessment or support her as a carer;
• respond to her requests for more support; and
• keep its promises to resolve the problems.
2. As a result, Miss X says:
• Y went without suitable education for several years and has lost out on opportunities to develop and make friends;
• both she and Y were caused significant distress, including affecting their relationship; and
• she suffered financial losses due to increased utility costs and a lack of free school meals.
3. She wants the Council to:
• apologise;
• keep in contact with her regularly;
• properly recognise the education Y missed;
• provide her with the support she needs as a carer; and
• pay her a financial remedy.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. 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.
11. 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

12. I have not investigated Miss X’s complaints about events before December 2022. Miss X’s complaint about those events are late and I am not satisfied there are good reasons to consider those earlier events now.
13. I have also not investigated:
• anything which Miss X could have appealed to the SEND Tribunal. This includes the content of Y’s EHC plan, or which schools the Council said Y could attend. I am satisfied it would have been reasonable for Miss X to have used her appeal rights if she disagreed with Y’s EHC plan; or
• the actions of Y’s school, including how it decided to remove Y from its roll or how to provide Y’s free school meals. The Ombudsman cannot investigate the actions of schools apart from where a school is performing the duties of a council relating to special educational needs.
14. I have investigated the other parts of Miss X’s complaint from December 2022 onwards.

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How I considered this complaint

15. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
17. 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 found

Education health and care plans

18. 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.
19. 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)
20. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
21. 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 council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. 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.
22. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Social care support for children and parent carers

23. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
24. The expectation of the ‘Working Together’ statutory guidance is that an assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
25. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.
26. The Council says child in need plans for disabled children can be overseen by social workers or family support workers, depending on the needs of the children. The Council is likely to assign a family support worker and review plans less frequently for children who:
• are not a risk of being placed into council care;
• have parents who can advocate for them, but needs some support to do this; and
• do not live in a home where domestic abuse, mental ill health or substance misuse is present.
27. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
28. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

School meals

29. Some families with children are entitled to free school meals. Originally, the law said that councils were responsible for providing free school meals in maintained schools.
30. However, the Government moved this responsibility to the schools themselves in 1999 (The Education (Transfer of Functions Concerning School Lunches etc.) (England) (No. 2) Order 1999, as amended). From this point, councils no longer had any responsibilities for providing free school meals during term time.

Background

31. Miss X’s daughter, Y, has special educational needs and has an Education Health and Care (EHC) plan from the Council.
32. Y has struggled to attend school for several years. The Council issued an amended final EHC plan in December 2022, based on a review it carried out in May 2022. The plans said Y should continue to attend School A, a mainstream secondary school. However, Miss X School A was not suitable for Y and she has not attended that school.
33. Y has been receiving some out-of-school support, initially arranged by School A, since 2021. As of the end of 2022, this was for nine hours a week, but did not include any subject specific tuition.

What happened from December 2022

34. The following is a summary of key events. It is not intended to be a comprehensive account of everything that happened.
35. After the Council issued the December 2022 EHC plan, Y continued to attend the out-of-school provision for 10 hours a week. At this time, the Council knew that Y was not attending the school named in her EHC plan and, therefore, was not receiving all the support set out in her EHC plan, including a full-time education.
36. In May 2023, School A removed Y from its roll. Miss X told the Council this had happened at the time. In its response to Miss X’s complaint the Council said “Y was taken off roll for a short period of time in the hope that further actions would be taken to ensure that Y has some form of education. There were no actions taken and as a result Y was put back on the school roll with School A”.
37. In mid-2023 the Council considered Miss X’s requests for Y to be educated otherwise than at school. It decided Y’s needs could be met in a mainstream school setting, but also noted that “Y is not able to engage in a school environment” and that it should refer Y to its education support centre for more support. However, there is no evidence this referral was made.
38. In August 2023, the Council asked the existing out-of-school provider to increase Y’s weekly hours to 15 hours a week, and to introduce more academic tuition.
39. Around this time the Council also carried out a children and family assessment, looking at the needs of Miss X and her children, including Y. That assessment led to the Council placing both children on a child in need (CIN) plan, overseen by a family support worker.
40. The plan said that:
• Miss X would continue to receive a direct payment to pay for four hours of support a week to help Y to access services the in community;
• Miss X would receive regular respite to help her meet her own needs as a carer;
• Miss X needed a carers assessment.
41. The Council reviewed the CIN plan in April and June 2024. Both reviews noted that the carer’s assessment for Miss X was still outstanding.
42. The Council carried out a review of Y’s EHC plan in May 2024. It sent Miss X a draft EHC plan, following that review, a few weeks later. It said that the plan was for Y to attend a different education placement from September 2024, and Miss X said she was happy with the choice of placement.

My findings

Delays reviewing Y’s EHC plan

43. The last review the Council carried out of Y’s EHC plan, before 2024, was in May 2022. The Council should therefore have ensured it reviewed Y’s EHC plan by May 2023. There is no evidence it did this, which was fault.
44. The Council also failed to consider carrying out a review of Y’s EHC plan when School A removed her from its roll in May 2023. The Council knew, at that time, that Y was no longer attending School A. In its response to Miss X’s complaint the Council accepted no action was taken at the time, apart from having School A readmit Y. Since the Council knew the school placement has broken down in May 2023, it should have considered whether to carry out a review. Its failure to do so was fault.
45. I cannot say what would have happened if the Council had carried out a review of Y’s EHC plan in 2023, either as a regular review, or an emergency review. However, I am satisfied there is a remaining uncertainty about what the outcome would have been and what changes might have been made to Y’s education. I am satisfied that uncertainty is significant, given the education Y had missed out on up to that point. The failure to carry out the review also denied Miss X of her right to appeal the outcome of the review to the SEND Tribunal.
46. The Council should also have issued a final EHC plan following its May 2024 review by 24 July 2024. However, as of 30 July it had still not issued a final amended plan. That delay was fault, though I do not consider this caused Miss X or Y a significant injustice, since Miss X said they were happy with the plan for Y’s education from September 2024.

Education provision for Y

47. Y’s December 2022 EHC plan said she should receive a full-time education at School A. However, the Council knew Y was not attending School A at the time it issued the plan, and when Miss X told it School A had removed Y from its roll.
48. The Council has a duty to secure the provision in Y’s EHC plan. If the Council knew Y was not receiving all the provision in her EHC plan, it had a duty to take action to address this.
49. However, there is no evidence the Council retained any effective oversight of the education Y was receiving, even when it knew she was not attending school. While it knew Y was receiving some out-of-school support, it has provided no evidence it kept this under regular review since December 2022 or worked with Y’s school to ensure she was receiving all the education she could take part in. Even after the Council accepted in mid-2023 that Y could not engage in a school environment, it did not take steps to review the out-of-school support Y received until August 2023.
50. The records of Y’s engagement with the out-of-school provision show that Y was engaging with this well throughout 2023 and she had no difficulty moving from nine to 15 hours in September 2023.
51. Had the Council properly kept Y’s education under review since December 2022, I consider it is likely Y would have taken part in more education than she did. Therefore, I am satisfied the Council’s failure to properly keep Y’s education under review led to Y missing out on some education between December 2022 and October 2023.
52. Y was entitled to a full-time education; for someone of her age this would have been 25 hours a week. However, councils are entitled to treat one-to-one contact as equivalent to more than the same number of classroom hours. Taking into account Y’s difficulties, and her reluctance to take part in academic subjects she might find challenging, I am satisfied it is unlikely Y would have been able to take part in more than 15 hours of one-to-one support each week.
53. Y received only nine hours a week support between December 2022 and October 2023. Therefore, I consider Y only received around 60% of what she could have taken part in for two and a half terms in 2023.
54. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Taking into account Y’s needs as set out in her EHC plan, the education she would likely have been able to take part in, and the part-time support she did receive during that time, I consider a payment of £720 per term, for terms in which Y received only nine hours a week support, to be an appropriate remedy.
55. I am also satisfied this lack of support caused significant distress and upset for both Miss X and Y, especially given the education Y has missed out on since 2021. While I cannot make any recommendations for any injustice before the period I have investigated, I can take that into account when considering the impact on Miss X and Y of the injustice they experienced since December 2022.

School meals

56. The Government has passed the responsibility for free school meal provision from councils to schools. Therefore, the Council is no longer responsible for deciding how to provide any school meals Y was entitled to. This was the responsibility of School A. I cannot investigate how the School made those decisions, since the School was not acting on behalf of the Council.

Social care support for Y

57. The Council carried out a child and family assessment, including Y’s needs, in August 2023. That assessment took into account both Miss X’s and Y’s views, along with the other evidence available to the Council at the time. There was no fault with how the Council carried out that assessment, and therefore I cannot question the outcome of the assessment.
58. Miss X said she wanted the plan to be overseen by a social worker and to be reviewed frequently. However, the Council is entitled to decide how it supervises and monitors child in need plans. Its policy says that some plans will be overseen by social workers and other plans will be supported by other officers in the Council’s disabled children’s team.
59. Miss X’s circumstances fall within the Council’s policy for plans to be supported by a family support worker and reviewed at least every six months. Therefore, I do not consider it was fault for the Council to monitor the child in need plan in the way that it has.
60. However, the last two reviews of the plan no show significant progress towards addressing the outcomes in the child in need plan, particularly respite for Miss X, and it was also not clear from those plans who the named practitioner overseeing the plans should be. The Council should ensure these issues are fully explored in its next review of the CIN plan, which it has planned for late September 2024.

Carers assessment for Miss X

61. The Council said Miss X had not asked for a parent carer’s assessment. However, in both of the CIN reviews it completed in 2024, the Council noted that a carer’s assessment for Miss X was still outstanding.
62. The Council noted in both reviews that Miss X had needs as carer, particularly for respite from her caring role. The Council’s failure to complete a parent carer’s assessment for Miss X is fault. While I cannot say what support Miss X might have missed out on, as this will not be known until the Council completes the assessment, I am satisfied the delay caused Miss X avoidable distress, and added to her feelings of not being listened to.

Communication and complaints handling

63. The Council’s communication with Miss X about Y’s education has been, at times, poor. The Council accepted in its complaint response that there had been a lack of communication. I am satisfied this was the case for much of 2023 and that this caused Miss X significant avoidable frustration, on top of the other distress she experienced.
64. Despite upholding Miss X’s complaints in September 2023, the Council did not take action to resolve several of the problems it had accepted. This caused Miss X further upset and meant that she had to complain further to the Council in early 2024.

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Agreed action

65. Within one month of my final decision the Council will:
1. apologise to Miss X and Y for the distress, upset and missed education caused by the fault I have identified above;
2. if it has not already done so, issue the final EHC plan following its 2024 review;
3. complete a parent carer’s assessment for Miss X, which should be overseen by a qualified social worker;
4. ensure Miss X is aware of the name and contact details of the practitioner responsible for Y’s CIN plan;
5. arrange with Miss X the date for the next review of Y’s CIN plan and for a qualified social worker to check the outcome of the review / the amended plan;
6. pay Miss X £3,200, made up of:
1. £1,800 to recognise the education Y missed between December 2022 and October 2023, intended for Y’s future educational benefit;
2. £400 to recognise the distress and uncertainty caused its failure to review Y’s EHC plan in 2023;
3. £400 to recognise the distress and inconvenience caused by its failure to provide all the provision in Y’s EHC plan and keep her alternative education under review;
4. £200 to recognise the distress and uncertainty caused by the delay in completing a parent carer’s assessment; and
5. £400 to recognise the distress, time and trouble caused by its poor communication and handing of her complaint.
7. pay Y £900, made up of:
1. £400 to recognise the distress and uncertainty caused its failure to review her EHC plan in 2023; and
2. £500 to recognise the distress and loss of opportunity caused by its failure to provide all the provision in her EHC plan and keep her alternative education under review.
66. 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 I have recommended in my findings.
67. Within three months of my final decision the Council will review how it identifies and monitors necessary remedial action when responding to complaints about special educational needs and children’s social care. The Council should ensure that its complaints process considers what actions are necessary to resolve or remedy a complaint, and that it has an effective process for ensuring these actions are completed.
68. The Council should provide us with evidence it has complied with the above actions.
69. I would normally have made further recommendations for how the Council should improve its services around special educational needs. Particularly around how it ensures reviews are carried out in a timely way and how it keeps provision or part-time timetables under review. However, the Government issued a formal Improvement Notice to the Council in January 2024, requiring it to make improvements covering these areas. Therefore, I have not made similar recommendations, as the Council is already required to implement an improvement plan.

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Final decision

70. I have completed my investigation as I am satisfied with the action the Council has agreed to take. There was fault in how the Council delayed reviewing Y’s Education Health and Care plan, failed to keep her education under review when she was not attending school, failed to assess Miss X’s needs as a carer and how it communicated with her. This caused Y to miss out on some education and caused both Miss X and Y significant, avoidable distress. The Council agreed to apologise, pay them a financial remedy and make arrangements to review their social care needs. It also agreed to review how it identifies and monitors remedial action when responding to complaints.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman