Summary: Delay by the Council amending B’s Education, Health and Care (EHC) Plan and finding a new school meant he was without a full-time school place for almost four terms. He received some alternative provision for much of this time, but we have no way of knowing whether this was enough. The Council has agreed a remedy.

The complaint

1. Ms M complains about disruption to her son B’s education. She complains about delay amending B’s Education, Health and Care (EHC) Plan following a review in June 2022. She complains B was out of school between November 2022 and February 2024 and did not receive suitable provision.

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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. Once 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 M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. He attended a mainstream school.
7. The school held an annual review meeting on 27 June 2022. On 9 August 2022, the Council notified Ms M that it intended to amend B’s EHC Plan.
8. B’s school placement subsequently broke down. He stopped attending school on 14 November 2022.
9. The Council issued a final amended EHC Plan on 20 January 2023. The Plan said B would remain a pupil at his current mainstream school, although he was not attending at the time.
10. B received four hours of tuition per week from 31 January 2023 and six hours of outdoor education based alternative provision from 9 February 2023.
11. Ms M complained to the Council on 1 August 2023. She complained the 10 hours of alternative provision B received was less than the full-time education to which he was entitled. She was also concerned about arrangements for B’s education from September 2023 since none of the schools the Council had consulted could offer B a place, and the tutor providing the four hours of tuition was no longer available.
12. The Council responded on 4 August 2023. The Council apologised and explained it was doing everything it could to secure a school place for B. The Council acknowledged the alternative provision was an interim measure and did not match the full-time education to which B was entitled. The Council said it would look to extend the tuition until it found a suitable school place.
13. The Council issued a further final amended EHC Plan on 2 February 2024. The Plan said B would attend an independent school offering alternative education.
14. Unhappy with the Council’s response, Ms M complained to the Ombudsman in March 2024.

Complaint 1: delay 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 legislation and Government guidance.
16. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
17. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
18. 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.
19. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
20. B’s school held an annual review meeting on 27 June 2022. The Council issued a final amended EHC Plan 29 weeks later on 20 January 2023. This was 17 weeks late. The Council did not meet the statutory deadline. This was fault.
21. The 20 January 2023 EHC Plan did not, however, secure B’s return to school.
22. The Council had consulted 23 schools, both mainstream and special schools, but none was able to offer B a place. Six months later, in response to Ms M’s complaint, the Council explained that it was continuing to look for a suitable school.
23. It was not until 2 February 2024 that a school place was identified for B and the Council issued a new EHC Plan naming this school. By this time, he had been out of school for over a year.
24. The full extent of the delay amending B’s EHC Plan following the June 2022 annual review meeting was 71 weeks.
25. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice.
26. B was without a full-time school place for almost four terms.
27. He was not, however, completely without education. To assess the injustice to B, I will first consider the alternative arrangements the Council made.

Complaint 2: alternative provision and B’s absence from school

28. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
29. The Education Act 1996 says every council shall “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
30. 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)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
31. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
32. B last attended school on 14 November 2022. The Council arranged alternative provision from January 2023 until it amended his EHC Plan again in February 2024. B received a maximum of 10 hours per week.
33. In response to my enquiries, the Council explained the officers involved no longer work for the Council. The Council sent me the case records, but they are brief and do not explain how the Council decided how much or what type of provision to arrange. It appears B had complex needs, and efforts were focused on re-engaging him with learning so the Council would have evidence to send to potential schools.
34. Without records to show how the Council made its decisions, I have no way of knowing B received all the education he needed. This is fault.
35. The injustice is uncertainty. It is possible the Council should have arranged more alternative provision. The injustice is compounded by the length of time it took to find B a school place.
36. We may recommend a remedy for injustice that is the result of fault by the Council. We can also make recommendations to ensure similar faults do not happen in the future. My recommendations are at the end of this statement.

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Agreed action

37. 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 M and B, we may recommend the Council makes a symbolic payment.
38. Delay by the Council amending B’s EHC Plan and finding a new school meant he was without a full-time school place for almost four terms. He received some alternative provision for much of this time, but I have no way of knowing whether this was enough.
39. The impact on B’s education is incalculable. There is no formula I can use. Any recommendation I make for a financial remedy can only be a symbolic payment in recognition of this impact. It is not ‘compensation’.
40. I recommended the Council:
• apologises to Ms M and B for the faults I have identified;
• offers a symbolic payment of £3,500 to recognise the impact on B’s education; and
• offers a symbolic payment of £500 to acknowledge the impact on Ms M.
41. The Council agreed to make the apologies and payments within six weeks of my final decision. The Council should send us with evidence it has done so.
42. An inspection by Ofsted, the Regulator, in 2022 identified significant areas of weakness in the Council’s SEND service and required a Written Statement of Action. I will not, therefore, make further recommendations.

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Final decision

43. I have ended my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman