Summary: Mrs X complained the Council failed to provide her child, W, with the special educational provision in their Education, Health and Care Plan. The Council was at fault. The Council has already made Mrs X a suitable remedy to acknowledge W’s injustice. It will also apologise to Mrs X and issue a staff reminder.

The complaint

1. Mrs X complained the Council failed to provide her child, W, with the special educational provision in their Education, Health and Care Plan while they were out of school. Mrs X said issues had been ongoing on since 2020.
2. Mrs X said the lost education had affected W’s mental health and caused hardship for her and W’s sibling.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. 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).
7. Mrs X’s complaint dates back to 2020 but she did not complain to the Ombudsman until March 2024. I have seen no good reason to investigate that entire period as Mrs X could reasonably have complained to the Ombudsman sooner. I have chosen to investigate back to June 2022, when W stopped attending school. This is because the Council took five months too long to respond to Mrs X’s complaint, which was a delay outside of her control.

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How I considered this complaint

8. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
9. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational provision

10. 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.
11. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

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)  
13. 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. 

Education, Health and Care Plan annual reviews

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. This is called an annual review. Annual reviews have two parts; the first is a review meeting. Following the meeting, councils must by issuing a decision to keep the EHC Plan unchanged, amend the content of the Plan or stop the Plan.
15. If the council decides to amend a child’s EHC Plan, caselaw has found it must issue the amended final Plan within 12 weeks of the annual review meeting.

Complaints handling

16. The Council operates a two stage complaints procedure. The Council’s policy sets out it should respond to a stage one complaint within 15 working days.

What happened

17. Mrs X’s child, W, has difficulties with their emotions and mental health. W’s previous experiences in education meant it was hard for them to trust adults and engage in education. In the 2021/2022 school year, W was in year 7 and attended a specialist school (school A) with an EHC Plan. The provision in W’s EHC Plan included:
• a personalised curriculum with extra opportunities to do practical activities;
• support to read, in group and individual settings; and
• significant support to manage their mental health and emotions, particularly during interactions with other children.
18. In June 2022, school A held an emergency meeting because it was struggling to meet W’s needs. The school decided W should stop attending during the day and should receive after-school provision instead. This was made up of one 30 minute online tutoring session per week. School A told the Council that for W to return during the day they needed 2:1 support. This meant two people would help W alone.
19. In July 2022, the Council agreed to this arrangement and school A said it would take time to hire the extra staff necessary.
20. W tried to attend the after-school provision but was unable to.
21. In September 2022, the Council asked the school to put more provision in place for W. The school agreed to commission educational support from an external provider (provider A) who specialises in re-engaging children in education. School A did not have staff available to give W 2:1 at the start of the school year so W was unable to attend.
22. In mid-October, the Council held W’s annual review meeting and issued a draft amended EHC Plan in late November 2022.
23. In January 2023, school A had 2:1 support available for W. It tried to reintegrate them into day-time school, but the attempt failed.
24. Provider A began supporting W for six hours per week in January 2023. Mrs X says that W refused to participate in formal education because of their needs so staff from Provider A spent the time building a relationship and engaging in activities W enjoyed.
25. The Council issued W’s final amended EHC Plan in March 2023. The provision was largely unchanged from that in the March 2022 Plan. There was some new provision which focused on helping W to manage in a classroom setting and on understanding and managing their emotions.
26. In May 2023, Mrs X complained to the Council. She said it had failed to provide W with a suitable full-time education or the special educational provision in their EHC Plan.
27. The Council agreed to put an Education Otherwise Than in School (EOTAS) package in place in July 2023 and W left school A. EOTAS is an alternative to traditional schooling, when a child or young person has a package of different educational provisions in place.
28. In September 2023, W continued to attend provider A six hours per week but struggled to attend consistently.
29. In mid-October 2023, the Council held an annual review meeting. Following the meeting, the Council decided to amend W’s EHC Plan.
30. The Council issued an amended EHC Plan for W in November 2023, which set out that W would receive EOTAS. The special educational provision was largely unchanged from the March 2023 EHC Plan. The Council decided W could continue attending provider A for six hours a week and identified two more providers for W to attend. One began in February 2024 but W was never able to attend and Mrs X refused the other because she said W would not engage with it.
31. The Council responded to Mrs X’s stage one complaint in late November. It accepted it had failed to secure the full special educational provision in W’s EHC Plan since June 2022. It apologised to Mrs X and offered her £3,300 in recognition of W’s lost education. The Council’s stage two response referred Mrs X to the Ombudsman as it had nothing further to add. Mrs X has accepted and received the Council’s financial offer.
32. I asked Mrs X what provision she thought W could have coped with in the period I have investigated. Mrs X said she did not think W could have managed much more than the six hours they got per week but that animal therapy might have been successful.

Previous Ombudsman investigations

33. The Ombudsman recently upheld a complaint against the Council where we found it failed to amend a child’s EHC Plan in time. As a result of that investigation, the Council agreed to remind staff to complete annual reviews of EHC Plans in line with the statutory timescales.
34. In response to another investigation, the Council agreed to review what steps it can take to reduce the backlog of complaint responses.

Findings

Special educational provision

35. At the end of the 2021/2022 school year, the Council was aware W would no longer attend school in the day and would move to 30 minutes of online tutoring per week. School A also told the Council W would need 2:1 support to return to normal schooling and that this would depend on it hiring more staff. This meant W would only receive 30 minutes of online tutoring per week for the foreseeable future.
36. The fact that the Council asked school A to arrange more alternative provision for W once it reopened for the new school year in September 2022, indicates it thought the existing provision was inadequate. However, the Council should have taken action promptly after school A said it would need to hire more staff to deliver W’s 2:1 support. It should have arranged more provision directly rather than relying on school A, which was impacted by school holidays. This was fault.
37. In addition, the provision school A agreed to seek was not in place until January 2023. This delay was also fault. Because W had been unable to access the online tutor session each week, the faults in paragraphs 35 and 36 meant W went without any of the special educational provision in their EHC Plan for the whole autumn term. W’s ability to engage with the support from provider A once it started in January 2023 was not consistent, but they were able to access some of it. I am therefore satisfied, on balance, that had the Council arranged it by the start of the autumn term as it should have, W would have been able to benefit from some of it. The lost education was an injustice for W in its own right but also caused them avoidable distress.
38. Attempts to reintegrate W to school A in January 2023 failed and they began attending provider A for six hours per week. While the support delivered by provider A was not academic in nature, I am satisfied that in building a relationship with W and taking part in activities that interested them, provider A was delivering at least some of the special educational provision in W’s EHC Plan, namely that relating to managing their emotions and mental health.
39. However, the Council is unable to evidence how it decided those six hours were delivering as much of the special educational provision in W’s EHC Plan as they could manage, or how it kept that provision under review when it continued to be W’s only education until November 2023, when it issued W’s amended EHC Plan. This was fault.
40. Mrs X recognises that W’s ability to engage with education was low due to their needs and previous experiences. However, she feels something like animal therapy may have worked. I have considered Mrs X’s view and note that after the Council issued W’s EHC Plan in November 2023, which noted they would have an EOTAS package, it agreed to arrange support from two providers, in addition to provider A. This indicates it believed W may be able to manage with extra provision. Therefore, on balance, I consider that but for the fault, the Council would have offered more provision. However, given the two other providers the Council arranged did not work out for W, I cannot say, even on balance, the fault meant W missed out special educational provision they could have accessed. The injustice is therefore frustration and uncertainty for Mrs X.
41. W’s November 2023 EHC Plan stated they would receive EOTAS and as part of that package, the Council tried to arrange two new providers. However, neither provider could start supporting W immediately. This meant W continued receiving the six hours per week from provider A until the end of the period I have investigated; December 2023. This delay was fault. However, for the same reasons set out in paragraph 40, I cannot say the fault meant W missed out on provision they could have accessed. Mrs X, however, experienced avoidable frustration because of the delay.
42. The Council has accepted it failed to secure the special educational provision in W’s EHC Plan since June 2022 and paid Mrs X £3,300 in recognition of the injustice to W. I am satisfied that amount remedies the injustice to W in accordance with the Ombudsman’s guidance on remedies, so I have not made a further financial recommendation.

EHC Plan amendment delay

43. The Council held W’s EHC Plan annual review meeting in mid-October 2022. To comply with the statutory timescale, it should have issued W’s final amended EHC Plan by mid-January 2023. It issued the final Plan in March 2023, two months late. This delay was fault and caused Mrs X avoidable frustration. It did not cause W a significant personal injustice because the provision in the March 2023 was largely identical to that in the May 2022 Plan and because Mrs X did not want to appeal its contents.
44. When, in July 2023, the Council agreed W could leave school A and receive an EOTAS package instead, it should have held an early annual review to amend the EHC Plan to reflect that agreement. The Council did not do this, and instead held the review meeting in October 2023. This was fault and caused Mrs X frustration. But for the fault, the Council would have issued W’s November 2023 Plan sooner. However, any delay in arranging the two new providers in line with the provision in the November 2023 Plan did not cause W an injustice because they were ultimately unable to access the new provision.
45. Because, as noted in paragraph 33, we recently made a recommendation on this issue, I have not made a further recommendation below.

Complaints handling

46. In accordance with its complaints policy, the Council should have responded to Mrs X’s stage one complaint by early June 2023. It responded in late November, more than five months late. This significant delay was fault and caused Mrs X further avoidable frustration.
47. I welcome the action the Council has agreed to complete to address its complaints backlog, so have not made a further recommendation below.

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Agreed action

48. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration and uncertainty she experienced as a result of its failure to secure the special educational provision in W’s EHC Plan between June 2022 and December 2023, the delays in reviewing and amended W’s EHC Plan and because of its poor complaints handling. 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.
2. Remind staff that where a child with an EHC Plan is struggling to attend school and is receiving provision in another way, they must keep adequate records of how they decide the alternative provision on offer is securing as much of the special educational provision in the child’s EHC Plan as possible.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman