Summary: We have completed our investigation. The Council was at fault. It did not provide Miss X’s child, B, with education, while out of school. It did not properly assess B’s welfare during this time and failed to review B’s Education, Health, and Care (EHC) Plan in a timely manner. It should apologise to Miss X, award a symbolic payment to her, and carry out a review of internal policy.

The complaint

1. Miss X complains about the way in which the Council:
• failed to find and support her child, B, to remain in suitable education,
• provided inconsistent education at home for B,
• failed to consider B’s welfare,
• failed, since 2018, to carry out a review of B’s EHC Plan, and
• made amendments to the EHC Plan.
2. Miss X says the disruption to her child’s education has caused significant distress and anxiety resulting in them being prescribed medication due to deterioration in their mental health.
3. Miss X reports an impact on her whole family of distress, time, and trouble. She says having to be at home for her child during the day has resulted in a loss of earnings. Miss X is concerned about how her child will transition to college following their experiences in education over the last few years.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
9. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 investigated from January 2023 when Miss X’s child stopped going to school, to October 2023, when an amended EHC Plan was issued.
13. I have investigated the education provided to B, during this time, and the way in which the Council conducted welfare checks for B, while out of mainstream education.
14. I have not considered matters which took place after October 2023. This is because once the amended EHC Plan was issued in October 2023 Miss X had the right to lodge an appeal with the SEND Tribunal if she was unhappy with the content.
15. The way in which the amendments were made to the draft plan, would ultimately contribute to the content of the final plan. Miss X could have taken these matters to the SEND Tribunal, and therefore I have not investigated the way the Council made its amendments to the draft plans.
16. I have not considered whether the Council failed to review the EHC Plan from 2018 – 2022. These matters are late.

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How I considered this complaint

17. I considered the complaint and information provided by Miss X.
18. I made written inquiries of the Council and considered its response along with relevant law and guidance.
19. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
20. Miss X and the Council had the opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

21. 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. 
22. 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.
23. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. 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) 
24. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
25. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
26. 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)  
27. 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. 

28. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
29. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution.
30. There is a right of appeal to the SEND 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.
31. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
32. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
33. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
34. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

What happened

35. Miss X’s child, B, was in Year 11 of high school in January 2023. B has autism spectrum disorder and learning disabilities.
36. An EHC Plan had been in place for B since 2018.
37. In January 2023, after a series of similar events, B was involved in an incident at school which led to B being suspended.
38. Miss X decided not to send B back into school. She told the Council and the school.
39. In February 2023 the Council conducted an EHC Plan review.
40. Two weeks later, the Council agreed to amend the EHC Plan to reflect a change in placement. The Council said it needed to consider what B’s plans were upon leaving school.
41. The Council said it sent Miss X a decision letter. There is currently no evidence to suggest it did.
42. Over the course of the next week views were sought by the Council from B and B’s parents about the placement for B.
43. The Council made attempts to consult several different education providers during March.
44. Miss X and B’s father raised concerns about the content of the EHC Plan the Council was sharing with prospective placements. Information in the plan was out of date by many years and did not reflect B’s current needs.
45. For a few months at the start of 2023 the school sent work home for B to complete. This was ad hoc. There was nothing in place for Miss X to return work and have it marked by teachers at the school. Miss X said she had to buy paper, books and a printer to facilitate home learning.
46. At the start of April, the Council decided that mainstream further education may not be suitable for B in September 2023. Later that month the Council started to consult with education providers about arrangements for B upon leaving school.
47. At the same time a new SEND caseworker was assigned to B.
48. At the end of April B’s father raised concerns about the lack of education being provided for B. He also raised concerns about the lack of an education welfare officer. B’s parents were concerned that no one from education had checked on B since January.
49. Other professionals working with the family also told the Council about the difficulty Miss X had trying to educate B at home.
50. It appears that consultations for both provisions needed to complete year 11 and move on to year 12 were ongoing at the same time.
51. At the start of May B’s parents raised further concerns with the Council about the lack of education being provided for B. The Council asked the school to provide home tuition.
52. Due to B’s needs the school had some concerns about suitability. The school also raised concerns about cost of tuition with the Council. However, the action remained for the school to source home tuition.
53. Tuition was sourced by the school and started for B towards the end of May 2023. B received six hours of tuition a week. Two hours a day, three times a week.
54. Miss X complained about the suitability of some of the tutors. She asked for experienced male tutors to be sent to work with B at home. She said this did not always happen and therefore made home education difficult.
55. The Council contacted professionals involved in B’s care and support and asked for updates to form part of the reviewed EHC Plan.
56. Miss X and B’s father complained to the Council at the start of July. The complaint to the Council was about lack of education at home for B, lack of support from school to send work home or to mark it, the progress of the EHC Plan review, and the outdated content in the current plan being shared with prospective education providers. B’s father also complained about the lack of welfare checks since B stopped going to school in January.
57. Miss X said the home tuition for B went well throughout June and July. B was assigned an experienced male tutor during this time. She asked the Council if this could continue in September 2023. The SEND Caseworker made attempts to arrange this.
58. Shortly after this request, the Council explained to Miss X that it could only continue with this provider if B remained on roll at the current school. The Council said it had to adhere to a tender process that enabled all tuition companies to apply to deliver the tuition.
59. Miss X was unhappy about this. She said that the tutor working with B had been a success. She was frustrated that it appeared procurement of services was prioritised over B’s best interests.
60. In late July and mid-September, Miss X said meetings with the Council to discuss B’s education did not go ahead as planned. Miss X and B’s father said they were left waiting for meetings to start, with no communication from the Council. B’s father had rescheduled a holiday and taken time off work to attend these meetings.
61. There was no record of these meetings, on the two dates in question, having been scheduled and cancelled, or having gone ahead, in Council records.
62. Further placements were considered at the start of August and the Council kept in communication via email with B’s parents.
63. However, B’s father reported further concerns to the Council in August about the lack of reliable communication with them about B’s education.
64. The Council’s response to B’s father’s complaint at stage one, was started in August 2023. It said following a conversation with B’s father it had made amendments to the response. The date reads ‘15th August, updated 15th September.’
65. The SEND Caseworker wrote to Miss X and B’s father in mid-August. A proposal was being put forward for B to receive 2 days education and 3 days social care provision per week. The Council asked B’s parents for their thoughts.
66. At the start of the school term in September 2023 Miss X contacted the Council, asking what the provision for B was. She had not heard from the Council since mid-August and had nothing arranged for B to start the school year.
67. The same day the Council said it was putting B’s tuition out to tender and had a deadline of the end of the day to receive responses.
68. One week later the Council wrote to Miss X to tell her the second draft EHC Plan was ready for parents’ comments. It said parents had 15 days to share comments before the EHC Plan would be finalised. It provided an update about a home tuition provider (provider X) that had been sourced for B and a second visit at a prospective placement.
69. The Council made its response to B’s father’s complaint at stage one of the corporate complaints process. It split the complaint into two parts, 1) B’s EHC Plan and 2) B’s welfare. It upheld both complaint points. It accepted fault. It said the EHC Plan currently in use did not reflect B’s needs and needed amending. It said it should have ensured B’s welfare was monitored during the time B was not in school. It offered to arrange a multi-agency meeting with B’s parents to discuss how to move forward and made an apology to B’s parents. It also said it would facilitate a learning session for staff to learn from what happened to B.
70. Miss X declined the offer of home tuition from provider X. She said she did not want to risk another negative experience at home, for B. She remained frustrated the Council would not allow the tutor B worked with in June and July to return.
71. A placement for B was finally found at the end of September. Miss X said she felt she had no choice but to accept the placement, because she was scared there would be nothing else offered to B if she did not. The EHC Plan was finalised mid-October 2023.
72. The Council made its response to B’s father’s complaint at stage two of the corporate complaints process, at the end of October 2023. It referred to two points, 1) B’s EHCP and 2) B’s education. It said it would not investigate further the way in which the Council amends EHC Plans as it had resolved concerns about B’s plan. It said it would not consider B’s education at stage two because B’s parents had not complained about it earlier. It referred to the procurement process around home tuition providers and that B has now found a placement. The EHC Plan now had a named setting, so the Council informed B’s father he could take matters to the SEND Tribunal should he wish to challenge content of the EHC Plan.

My Findings

73. Matters discussed in this decision take place in important transitional years for B.

Delay

74. A review meeting report should have been shared with B’s parents two weeks after the EHC Plan review meeting. There is currently no evidence to suggest the Council shared a meeting report with Miss X. This was fault by the Council.
75. There was a delay in issuing the amended EHC Plan, and the accompanying letter to Miss X, of 23 weeks. The Council say this was because of workload and a back log of EHC Plan reviews. This was fault by the Council.
76. A backlog of reviews, and increased workload, is commonplace for Councils across the Country. We often find that this is likely due to widespread service failure. However, there appear to have been opportunities available to the Council to act sooner that it did not take.
77. The Council spoke to agencies supporting B regularly between January – July 2023. However, there are no records available to suggest the Council consulted with agencies supporting B, specifically about an update for the EHC Plan until July 2023. Had it done so before July, the EHC Plan may have been finalised sooner.
78. Further to this, it appears, through reviewing Council records, the Council waited until securing a placement to issue the amended EHC Plan.
79. The Council failed to consider the timeliness of reviewing B’s EHC Plan in preparation for the transition to a year 12 placement. It should have made extra efforts to ensure the review was completed on time due to the impact on this transition. The impact is notable. B did not start a year 12 placement in September 2023, as planned. It is likely this will have impacted how B settled into the placement. This was fault by the Council.
80. In its stage one complaint response the Council accepted it was at fault. It said there was delay in progressing the EHC Plan for B. It said it will deliver a training event for Council staff to ensure learning takes place following B’s experiences.
81. When asked, the Council was unable to provide evidence of the learning session that it said it would arrange for staff. It referred only to its attempts at resolution with Miss X and her family. This is disappointing, considering it had made assurances to B’s parents that this would take place.

Educational provision

82. The Council said the school where B was on roll provided alternative provision from January 2023 to July 2023. It referred to this, when asked what it did to ensure B received education from January to October 2023.
83. Miss X withdrew B from school in January 2023. The placement was however still available for B. It appears after the EHC Plan review meeting in February the Council accepted that the placement was unsuitable for B because it started looking for alternatives. The evidence currently suggests that B’s parents regularly reported concerns to the Council about B not receiving suitable education from February to July 2023. They were concerned that what was in place at home was unsuitable.
84. B was without structured education from January 2023 to May 2023. This is a loss of education of 5 months. The Council should not have taken an approach of relying solely on the school to deliver education during this time. Once B’s parents raised concerns the Council should have taken action to make sure the education on offer from school was suitable for B. The evidence currently suggests it did not. This was fault by the Council.
85. Home tuition that was delivered during June and July was not full time. B received six hours of education through home tuition, a week. There is no evidence to indicate this level of provision was all that B could cope with. B suffered further loss of education because of the part time timetable.
86. The Councils statutory duty to provide alternative provision is explained in paragraph 33. The Council knew B was out of full-time education and it had a duty to ensure that provision was in place for B, whether B was on roll at school or not. The Council failed to do this in a timely manner. This was faut by the Council.
87. The Councils statutory duty to ensure a child receives what is outlined in section F of an EHC Plan is explained in paragraph 26. As already complained about by Miss X, the EHC Plan in place prior to October 2023 did not reflect B’s needs. Using the EHC Plan in place at the time, it would have been difficult for the Council to ensure the relevant provision was being delivered to B. However, it should have made efforts to do so and recorded its actions. The evidence currently suggests it did not. This was fault by the Council.
88. When asked, the Council said procurement was not a factor in deciding a placement, or suitable tuition for B. This was not what was explained to Miss X in August 2023, or later in 2023, when she asked why the tutor B had worked well with, could not return to the home. In the stage two complaints response from the Council to B’s father, procurement is also referred to.
89. B’s parents complained about the EHC Plan the Council originally shared with prospective education providers. It was not reflective of B’s needs. I am not investigating Miss X’s complaint about failure to review the EHC Plan prior to 2023. However, the EHC Plan in place prior to October did not aide my investigation. This was because Section F of the plan was many years out of date. It did not provide a thorough description of what B should have been receiving or explain how the provision would be delivered. It made my analysis of loss and injustice difficult to quantify and hindered my analysis.
90. It is likely having a final EHC Plan in place as early as possible would have assisted the Council to discuss B’s needs with prospective placements. The Council had already admitted fault about this matter.
91. The Council consulted with over 20 different prospective placements from March 2023 to September 2023, when a placement was found.
92. There was initial delay in some placement responses because an up-to-date EHC Plan was not available to share. However, many placement options were unable to meet B’s needs.
93. B’s final amended plan, issued in October 2023, listed additional provision and a new placement setting. This suggests that B missed out on the additional provision, due to the delay in issuing the plan.
94. On the balance of probabilities, had the plan been issued in line with statutory guidelines B would have had access to the additional provision sooner. Miss X would also have had appeal rights available to her sooner. Fault by the Council caused significant injustice to B and Miss X.

B’s welfare

95. B’s parents raised concerns in writing about the lack of a welfare check for B, in April 2023.
96. Aside from parents voicing their concerns, the Council was aware that B was out of school from January 2023.
97. Still, no one from the Council or school saw B for seven months.
98. The first time B was seen was on a virtual online call. This was fault by the Council.
99. In its complaint response to B’s parents, the Council admit fault in failing to ensure B’s welfare during this time. Acknowledgement of this is welcome.
100. The Council apologised, and invited B’s parents to attend a multi-agency meeting to discuss B.
101. When asked, the Council was unable to provide information about the policy / internal procedure it follows to ensure that children’s welfare is monitored when they are out of school.

Complaint Handling

102. The Councils reply to B’s father’s complaint at stage one failed to consider the complaint about alternative provision offered to B during Spring /Summer 2023. B’s father complained about the lack of alternative provision offered to B and about issues with work being sent home from school. He made it clear he was unhappy about B being without education during this time.
103. Concerns were being raised about this throughout 2023, however specifically in the complaint to the Council in July, B’s parents made it clear that this was a complaint point they wanted addressed.
104. The Council responded to two complaint points at stage one: B’s EHC Plan and B’s welfare.
105. In the request to escalate to stage two of the corporate complaint process it appears B’s father referred to being unhappy about the home tuition provider changing, and them being offered tuition with provider X.
106. This is different to a complaint about failure to provide alternative provision altogether to B. The Council decided it was different and said it would not investigate it.
107. However, failure to respond to the complaint, at stage one of the process, about the lack of alternative provision is fault by the Council. The Council should have considered this in its response to B’s father in August/September 2023. The Council had an opportunity to correct this at stage two. The stage two complaint response should have recognised that the complaint about alternative provision had not been considered or responded to, at stage one.

Injustice to others

108. As part of this investigation, I asked the Council questions about potential widespread injustice relating to the delay in issuing EHC Plan reviews.
109. The Council only provided data relating to the specific area in which Miss X lives. I cannot accurately calculate the injustice to residents in the whole Council area.
110. In the area Miss X lives, nearly 40% of EHC Plans are overdue a review.
111. The Council said it had an issue with its recording system and that this data may not be accurate. It said the issue with the recording system was being rectified.
112. The above data is evidence of widespread service failure and is fault by the Council.
113. We have only seen data relating to one geographical area of the Council. It is likely that there are many more families impacted by this fault.
114. We decided on four complaints in the last year that focused on issues with the Councils handling of the EHC Plan review process. This included failure to adhere to timescales and issuing information to parents appropriately. We made decisions on three separate complaints in the last year that focused upon the Council’s duty to provide education to children who are out of full-time education / mainstream school.
115. As part of those investigations, we made several recommendations to the Council. We received several assurances from the Council about its proposed actions to deal with the issues identified. The Council recognised the impact of staffing on the ability to review plans efficiently. The Council have had two recruitment drives this year. In October 2024 it is scheduled to recruit again into the SEND Team.
116. We will monitor the effectiveness of the actions already taken, over the next 12 months, and give the Council time to implement the changes it has assured us it will make.

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Agreed Actions

117. To remedy the injustice caused by the Council, to Miss X and her family, I recommend that within four weeks of a final decision the Council takes the following action:
• Apologise to Miss X and her family, in line with our guidance on making an effective apology,
• Make a symbolic payment to Miss X of £3000 to reflect the period B was out of education. This takes into consideration June and July where B received minimal education at home in the form of tuition, and the period Miss X refused tuition at home (with provider X) during September and October.
• Make a symbolic payment to Miss X of £300 to recognise the delay in issuing B’s EHC plan and the subsequent delay in Miss X being able to appeal to the SEND Tribunal.
• Make a payment of £100 to Miss X to recognise poor complaint handling.
• In total, pay Miss X £3,400.
118. The Council should, within twelve weeks of a final decision being made, ensure the following action is taken:
• Provide evidence that internal policy or procedure provides guidance to staff about how welfare checks are carried out for children out of school. This should include frequency of welfare visits.
• Share a copy of this decision with the SEND Team and ensure that a learning session takes place with all relevant staff.
119. The Council should provide us with evidence it has complied with the above actions.

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Final decision

120. Subject to further comments by Miss X and the Council, I intend to complete my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused to Miss X and her family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman