Summary: the Council agreed to amend Ms P’s son B’s Education, Health and Care (EHC) Plan. It issued a final amended Plan 16 weeks after the annual review meeting. This was 4 weeks late. As B was not attending school, this compounds the injustice caused by the delay. The Council has agreed a symbolic remedy.

The complaint

1. Ms P complains about her son B’s education. In particular, Ms P complains:
1. the Council failed to make alternative arrangements for B’s education when he stopped attending school on 14 November 2023; and
2. the Council delayed unreasonably amending B’s Education, Health and Care (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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

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

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What I found

6. Ms P’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. He attended a special school, School A, until 14 November 2023.

Ms P’s complaint to the Council

7. Ms P complained to the Council on 30 November 2023. She complained B was not attending school and the Council had not made alternative arrangements for his education. She was unhappy with the delay finding an alternative school.
8. The Council responded to Ms P’s complaint at stage 1 of the corporate complaints process on 18 December 2023 and at stage 2 on 12 February 2023.
9. The Council’s position, as I understand it, was that School A remained responsible for B’s education while the Council identified a new school.
10. The Council said it understood Ms P had some “issues” with the school, and noted the school had said it may not be able to meet B’s needs in the long term. A new placement, School B, had been commissioned and the Council said School A was responsible for B’s education until he moved to school B.
11. B started at school B on 26 February 2024.
12. Unhappy with the Council’s response, Ms P complained to the Ombudsman.

Consideration

13. Ms P wanted B to move to a new school because he was suffering from severe anxiety following a serious assault which happened at School A. I have not included the details here so as not to compromise Ms P and B’s anonymity. The perpetrator of the assault remained a pupil at the school and attempts to keep B separate from the perpetrator were proving unsuccessful. Attending the school, where the assault took place, made B’s anxiety worse.
14. Matters came to a head in summer 2023. Ms P asked for a new school at the annual review of B’s EHC Plan.

Amending B’s Education, Health and Care Plan

15. The procedure for reviewing and amending an Education, Health and Care Plan is set out in regulations and Government guidance.
16. The process begins with a review meeting which is usually organised by the school on behalf of the Council. The school must send a report to the Council.
17. School A held an annual review meeting for B’s EHC Plan on 17 October 2023.
18. In its report, the school recognised B’s anxiety and accepted it could not do anything to mitigate it. The school supported Ms P’s request for a change of placement.
19. Following the meeting, the Council must decide within four weeks whether it intends to make changes to the Plan.
20. 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.
21. Councils must consult with schools before naming them in a Plan.
22. Ms P complained the Council consulted schools which she says were too far away for B to attend, and this delayed the change of placement.
23. It is for the Council to decide which schools to consult, not the Ombudsman. We have neither the authority nor the expertise. Our job is to check the Council undertook the consultations within the required timescales.
24. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
25. The Council agreed to amend B’s Plan. It issued a final amended Plan on 9 February 2024, 16 weeks after the annual review meeting. This was 4 weeks late. The Council did not comply with the timescales. This is fault.
26. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
27. To assess the injustice, I will now consider B’s absence from school.

Arrangements when B stopped attending school

28. B stopped attending school on 14 November 2023. Ms P informed the Council on 21 November 2023. She complained about the lack of alternative provision on 30 November 2023.
29. Councils have a duty to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”. However, this only applies to children of compulsory school age.
30. B was no longer of compulsory school age.
31. The Council’s duty was to arrange the provision in B’s EHC Plan. It had done this by commissioning a place at School A. Since the school was no longer suitable, the Council’s duty was to amend the Plan. Regulations and recent case law set out the timescale for amending the Plan.
32. The Council missed the deadline by 4 weeks. As B was not attending school, this compounds the injustice caused by the delay.
33. However, there is no formula I can use to calculate the impact. Any recommendation I make for a financial remedy can only be a symbolic payment in recognition of this impact. My recommendations are at the end of this statement.

Other matters

34. Given the seriousness of the assault, Ms P is understandably upset by the Council’s reference to her “having some issues with the school” in its complaint response.
35. B was struggling with the placement, and the school supported Ms P’s request for a change of placement.

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Agreed action

36. 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, as in the case of Ms P and B, we may recommend the Council makes a symbolic payment.
37. I recommended the Council:
• apologises for the faults I have identified; and
• offers a symbolic payment of £500 for the delay amending B’s EHC Plan.
38. The Council should provide us with evidence it has complied with the above actions.
39. The Council accepted my recommendations.

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Final decision

40. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman