Summary: We found fault with the Council in its failure to arrange alternative provision for the complainant’s son (Y), when reviewing his Education Health and Care Plan and when communicating with the complainant (Miss X). We also found fault in the way the Council dealt with Miss X’s complaint. The Council has accepted its fault and recognised the injustice it caused to Y and Miss X. The remedies offered by the Council were not enough. The Council agreed to apologise, to make symbolic payments and to send this decision to its Partnership and Assurance Board to review.

The complaint

1. Miss X complains about the Council’s failure to:
• ensure her son Y received education;
• find a suitable placement for Y;
• follow the statutory timescales when reviewing Y’s Education Health and Care (EHC) Plan;
• communicate with her effectively.
2. Miss X says the Council’s failings meant Y lost education and they impacted his mental health and trust in professionals. She says the Council had failed to ensure making arrangements for Y’s General Certificate of Secondary Education (GCSE) exams. They caused Miss X distress and anxiety and impacted her mental health.

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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. 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)
5. We cannot decide if an organisation has breached the Human Rights Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. I have not investigated the content of Y’s EHC Plan or whether the Council named a suitable setting in Section I. These matters can be appealed to the Special Educational Needs and Disabilities (SEND) Tribunal. As explained in paragraph four of this decision we would normally not investigate any matters which can be appealed.
9. I have investigated what happened until mid-May 2024. Any later events were not included in Miss X’s complaint and would need to be considered by the Council first, before we can investigate.

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How I considered this complaint

10. I spoke with Miss X and considered the information she provided.
11. I made enquiries with the Council and considered the information it provided.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

SEND appeals

13. 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.
14. There is a right of appeal to the Tribunal against:
• 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

Annual Reviews

The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:

• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHC Plan;
• In any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
4. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Alternative provision

16. 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.
17. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
18. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
19. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)

Communication

20. Parents views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC Plan in relation to a child. Local Authorities should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and will be acted upon. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 1.7)
21. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

22. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))

Human Rights

23. Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms Article 2 protects the right to an effective education. (Human Rights Act 1998 schedule 1 part II article 2).

Complaint

24. In line with its complaint policy the Council should acknowledge every corporate complaint within three working days and respond at stage one within four weeks. If the complaint is progressed to stage two either the complaints manager or a senior manager will respond within five weeks. If the review is likely to take longer the Council will contact the complainant explaining the reasons and will provide its response within 13 weeks.

What happened

Background

25. The Council issued Y’s final EHC Plan at the beginning of November 2022.
26. In the school year 2022/2023 Y struggled with anxiety and school attendance. In December 2022 Miss X asked the Council to arrange alternative provision for Y. Various meetings and discussions took place. The Education Support for Medical Absence (ESMA) got involved but said to Miss X that Y’s education should be provided by Y’s school (the School). Reintegration targets and a timetable were prepared.

May to October 2023

27. At the beginning of May 2023 the Council held an early review of Y’s EHC Plan. Miss X queried the content of the EHC Plan and the delivery of special educational provision. She said the School failed to meet the ESMA advice.
28. In the third week of June an Educational Psychologist (EP) commissioned by the Council provided her advice on Y’s educational needs and the support he needed to access education.
29. Miss X contacted the Council at the end of June. She asked about the Council’s proposal for amendments to Y’s EHC Plan. She also reminded the Council there were only three weeks left of Y’s Year 10 and the Council needed to support Y to prepare for his GCSE exams.
30. After much correspondence from Miss X throughout the summer, at the end of August the Council told her the School failed to send the early review paperwork.
31. At the beginning of September Miss X contacted Y’s special educational needs (SEN) officer (Officer 1) about Y’s online timetable. She said Y’s cognitive assessment carried out in May 2023 showed online tutoring was not a suitable option for him. She asked the Council to provide Y with suitable education.
32. When the School sent back the early review paperwork to the Council Miss X complained about its content. She said Y’s diagnosis and relevant professional reports were missing.
33. In mid-September the School stated it could not meet Y’s needs. It asked the Council to arrange an emergency review of Y’s EHC Plan.
34. Miss X continued asking the Council to arrange alternative provision for Y.

October 2023 to mid-May 2024

35. In mid-October 2023 the Council held an emergency review of Y’s EHC Plan. The plans for Y’s education were discussed. The Council did not have a suitable offer for Y but undertook to investigate and to provide some options.
36. In the second week of November 2023 the Council told Miss X it would amend Y’s EHC plan. A few days after receiving Miss X’s complaint the Council sent her the proposed amendments.
37. From January 2024 the Council agreed to fund three hours a week of Maths and English tutoring for Y.
38. From January to March 2024 Miss X contacted the Council multiple times. She was asking for updates on Y’s final post-review EHC Plan, which should have been issued at the beginning of January 2024.
39. In January 2024 Miss X asked the Council to allow Y to take his GCSE exams in the following year. He could make up for lost education and prepare for the exams. The Council liaised with the School but the School did not agree.
40. At the beginning of April 2024 Miss X discussed Y’s education with the Council’s officer (Officer 2). Miss X confirmed Y had been receiving three hours of Maths and English tutoring at home and the School entered him for the GCSE exams. Y’s interests and aspirations were also discussed. Officer 2 said she would consult with a specific college (College 1) and explore other options for Y.
41. The Council issued Y’s final EHC Plan in mid-May 2024.
42. Miss X told me that Y was not offered a place in College 1 because he had failed to apply before 31 March 2024.

Complaint

43. Miss X complained to the Council at the end of November 2023.
44. In the second week of December Miss X asked the Council to consider her complaint at stage two.
45. The Council responded to Miss X’s complaint in mid-December. It acknowledged it had failed to provide the right level of service to Y. Miss X did not consider the Council addressed all the issues raised by her.
46. A few days later the Council told Miss X it would take her complaint to stage two and would respond within 25 to 65 days.
47. At the end of March 2024 Miss X brought her complaint to us.
48. The Council provided its stage two response to Miss X’s complaint in mid-April 2024. In its response the Council:
• said it expected the setting named in a child’s EHC Plan to deliver provision included in Section F of the plan;
• accepted the SEND team had failed to maintain oversight of Y’s education;
• stated the School offered various educational options to Y;
• confirmed it was consulting with two colleges for Y;
• accepted some delays within the EHC Plan review process.
• offered £100 a week for a period of 12 weeks of missed provision between September and December 2023, so £1,200 in total and £200 for Miss X’s time and trouble taken to pursue her complaint.
49. At the end of July the Council sent an additional response to Miss X’s stage two complaint. The Council:
• provided Miss X with the contact details of Y’s EHC coordinator;
• explained it would not be possible to notify parents of every change in EHC coordinators for their child;
• apologised for the delays in issuing Y’s final EHC Plan and missing the post-16 transfer deadline of 31 March 2024;
• confirmed the Council should have arranged alternative provision for Y after receiving the EP’s advice in June 2023;
• offered extra remedy for the provision missed by Y in five weeks of the summer 2023, so £500 in addition to £1,200 that had already been offered from September to December 2023;
• offered a payment of £400 in recognition of the Council’s delays with Y’s EHC Plan reviews in May 2023 and October 2023.

Analysis

Reviews

50. The Council has accepted its failings within the early review process in May 2023 and an emergency review in October 2023 as well as with Y’s post-16 transfer. The Council failed to:
• send Miss X a letter with its post-review decision four weeks after the review meeting in May 2023;
• send Miss X the Council’s proposed amendments to Y’s EHC Plan within four weeks from the review meeting in October 2023;
• comply with the timescales for issuing a final EHC Plan for Y after the Council’s decision to amend the plan. The Council should have issued Y’s final EHC Plan at the beginning of January 2024, but it happened in mid-May 2024;
• consult with placements for Y and name a post-16 setting in Section I of Y’s EHC Plan by the end of March 2024.
51. The Council’s failings listed above are fault. This fault caused injustice to Y and Miss X:
• For Y – the delay in finalising EHC Plan with the amendments agreed after the review meeting in October 2023 meant Y’s EHC Plan was not a correct reflection of his profile. Y was in Year 11 and having an updated EHC Plan was important to secure both appropriate arrangements for his GCSE exams and the next educational placement. The Council’s failing to consult with post-16 placements for Y and to find his next setting by the end of March 2024 meant he had no security of the next stage of his education.
• For Miss X – Miss X spent much time requesting updates and asking the Council to finalise Y’s EHC Plan. She realised Y was not ready to take his GCSE exams in May 2024 as he had missed so much education. She was increasingly distressed by the Council’s delays and lack of planning for the next stage of Y’s education. Miss X’s appeal rights were delayed as she had no decision to appeal after the early review in May 2023 and no final EHC Plan to appeal until mid-May 2024.

Alternative provision

52. In its extra stage two response to Miss X’s complaint the Council accepted it should have arranged alternative provision for Y from June 2023. Its failure to do so between June and December 2023 is fault.
53. The Council’s refusal to accept its responsibility for Y’s education when Y was on the School’s roll, shows the lack of understanding of the Council’s duties under Education Act 1996 section 19. In our focus report “Out of school, out of sight? Ensuring children out of school get a good education” we have identified this issue as a learning point for councils.
54. The Council’s fault caused significant injustice to Y as he missed much education when he should have been preparing for his GCSE exams. The Council’s fault meant Y’s confidence was undermined and he struggled throughout the exams as he had gaps in his knowledge and was not sufficiently prepared.
55. The Council’s fault caused injustice also to Miss X as for many months she kept contacting the Council asking to arrange education for Y. She appreciated the importance of Y’s preparation for GCSE exams and post-16 education and felt frustrated at the Council’s failings and delays.

Communication

56. The Council failed to provide adequate communication with Miss X. The importance of involving parents and children/young people into the EHC Plan processes is clearly stated in the relevant legislation.
57. Besides the Council’s effective communicate with people who use its services is a necessary element of good administrative practice, as explained in our “Principles of Good Administrative Practice”.
58. Miss X often felt distressed at the lack of the Council’s response to her communications. She did not have direct contact details for the members of the Council’s staff who could help with your queries.

Human Rights

59. When performing their functions and making decisions councils should consider the impact of their actions and decisions on the individuals’ rights. There is no evidence the Council considered the impact of its failure to arrange alternative provision for Y on his right to receive suitable education.

Complaint handling

60. The Council should have responded to Miss X’s complaint by the end of March 2024. Miss X kept chasing the Council and finally came to us. The Council provided its stage two response three weeks later. In view of Miss X’s comments on the Council’s stage two complaint, the Council provided an extra response at the end of July 2024, accepting more failings and increasing the offer of remedies.
61. The Council’s complaint handling was chaotic and it delayed consideration of Miss X’s complaint at stage two. Even though the Council took so long to provide its stage two response, it failed to properly address the issues of Miss X’s complaint and sent another response a few months later. The Council’s failings when dealing with Miss X’s complaint are fault. This fault caused injustice to Miss X as she spent much time contacting the Council and was increasingly frustrated by the lack of resolution.
62. In its comments to my draft decision the Council recognised its complaint handling did not meet the expected standards and offered apologies to Miss X. It also said:
• during the period of Miss X’s complaint the Council faced significant challenges including staff shortages, which contributed to the delay in taking Miss X’s complaint through stage two;
• the Council has now taken steps to address the backlog and improve its complaint handling. This included reallocating resources, recruitment of additional members of staff and implementing further training;
• the Council made every effort to address Miss X’s concerns comprehensively. Following Miss X’s feedback to its stage two response, the Council conducted a further review and provided an additional response in July 2024. This showed the Council’s commitment to address fully Miss X’s concerns.
63. The Council told me it has already implemented certain measures to address its failings within complaint handling. These include enhanced training, resource allocation and process improvements.

Remedies

64. The Council did not offer appropriate remedies for its failings. When deciding what should be recommended to remedy the injustice caused to a child/young person and his parent we consider:
1. for the injustice caused by a council’s fault within the review processes:
• the impact the council’s review failings on a child/young person;
• the length of the council’s delays;
• the effect of the council’s failings on the parent’s appeal rights.
1. for the loss of education caused by a council’s failings to arrange alternative provision:
• the severity of the child’s SEN as set out in their EHC Plan;
• any educational provision that was made during the period;
• whether the period concerned was a significant one for the child or young person’s school career;
• lost or delayed right of appeal to tribunal.

Service improvements

65. In December 2023 the Council published its Special Educational Needs and Disabilities (SEND) Improvement Plan to address widespread and systemic failings found during the Ofsted inspection. The failings which impacted Y and Miss X are within the areas the Council has undertaken to improve. We will be monitoring the effectiveness of the Council’s actions through our casework.

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Agreed action

66. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Y and Miss X for the injustice caused to them by the faults identified. We have published 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;
• pay Miss X £3,200 to recognise the loss of education for Y from the third week of June 2023 until the end of December 2023;
• pay Miss X £750 to recognise the impact on Y of the Council’s failings within the reviews of his EHC Plans;
• pay Miss X £1,000 to recognise her distress caused by the Council’s failings within the reviews of Y’s EHC Plans and when communicating with her;
• pay Mrs X £200 to recognise the time and trouble taken to pursue her complaint.

The Council will pay Miss X £5,150 in total and will provide the evidence that this has happened.

67. We also recommend the Council’s SEND Partnership and Assurance Board within three months of the final decision review this decision to inform its work as part of the Council’s SEND Improvement Plan. The Council will provide the evidence this has happened.

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Final decision

68. I uphold Miss X’s complaint. The Council has accepted its fault in the way it delivered its educational services to Y, when reviewing his Education Health and Care Plan and when communicating with Miss X. The remedies offered by the Council were not enough. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman