Summary: the Council took too long to amend Ms M’s son B’s Education, Health and Care (EHC) Plan and B received only part-time education until the Council found a new school place. The Council has agreed a remedy for the impact on Ms M and B.

The complaint

1. Ms M complains about her son B’s education. In particular, Ms M complains:
1. the Council took too long to amend B’s Education, Health and Care (EHC) Plan following an emergency review; and
2. B missed education as a result.
2. Ms M says she has been unable to work as she has had to look after B when he should have been at school. She wants the Council to pay compensation.

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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 injustice 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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How I considered this complaint

6. I 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

7. Ms M’s son, B has an Education, Health and Care (EHC) Plan maintained by the Council. He was a pupil at a mainstream primary school.
8. Following an incident at school in October 2023, the school decided it could no longer meet B’s needs and keep him safe. The school held an emergency review of B’s EHC Plan on 8 November 2023 and asked the Council to find an alternative school.
9. B has not attended school since the incident. The school arranged 8 hours of alternative provision a week for B from the end of January 2024.
10. Ms M complained to the Council on 8 February 2024. She said B had missed three months of school following the incident in October 2023, and the Council had not amended his Plan following the emergency review meeting on 8 November 2023.
11. The Council responded on 27 February 2024. The Council accepted it had not met the timescales following the review meeting and apologised. The Council said the officer dealing with the review had left, and it had allocated a new officer who would deal with B’s review as a matter of urgency.
12. Ms M complained again on 16 April 2024. She said the Council had promised to deal with B’s review in 4 weeks. Six weeks had passed, and she had not had a reply.
13. The Council responded at the second stage of its complaints process on 15 May 2024. The Council upheld Ms M’s complaint. The Council noted it had still not amended B’s Plan despite its promise to complete the review as a matter of urgency. The Council apologised for the delay.
14. Unhappy with the Council’s response, Ms M complained to the Ombudsman.
15. The Council notified Ms M it intended to amend B’s EHC Plan on 16 May 2024.
16. The Council issued the final amended Plan on 14 June 2024. The Plan said B would remain at his current mainstream primary school until the end of term and start at Ms M’s preferred special school in September 2024.

Amending B’s Education, Health and Care Plan

17. The procedure for reviewing and amending an Education, Health and Care Plan is set out in regulations and Government guidance.
18. 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.
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. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
22. The school held an annual review meeting for B’s EHC Plan on 8 November 2023. The Council agreed to amend B’s Plan. It should have issued a final Plan by 31 January 2024. It issued a final amended Plan on 14 June 2024, 31 weeks after the annual review meeting. This was 19 weeks late. The Council did not comply with the timescales. This is fault.
23. 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.
24. To assess the injustice, I will now consider B’s absence from school.

Arrangements when B stopped attending school

25. B last attended school on 31 October 2023. The school decided it was not safe for him to return. Ms M and the school both notified the Council in early November 2023.
26. Parents, schools and councils all have responsibilities to ensure children receive a suitable education.
27. 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”.
28. 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))
29. 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.
30. 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)
31. B received part-time alternative provision from a private company providing alternative provision, starting on 22 January 2024. The provision was arranged by the school but funded by the Council. B attended the alternative provision until the end of the summer term in 2024.
32. I asked the Council how it satisfied itself B was receiving suitable education and continued to receive the provision in his EHC Plan when he stopped attending school. I asked the Council to send evidence which satisfied it he was. I asked the Council to explain why B did not receive full-time education.
33. The Council said the provision was arranged by B’s school and was managed through conversations between the school and the alternative provision setting. The Council sent me a chronology from B’s records.
34. It appears the alternative provision worked well. But I was expecting to see evidence the Council had considered B’s needs and the suitability of the provision, particularly as he was not receiving the full-time education to which he was entitled. The Council appears to have relied on the school.
35. I cannot tell from the records why B only received part-time education. The company providing the alternative provision says on its website that it only offers part-time provision.
36. I have not seen any evidence to say full-time education was not in B’s interests. I understand the plan was for him to return to full-time education in September 2024 when a special school place became available.
37. For these reasons, I find the Council to be at fault for failing to consider B’s needs and ensure he received suitable, full-time education.
38. I note that as well as the impact on B’s education, his part-time attendance had a significant impact on Ms M, and in particular her ability to work.
39. I also note that it took almost three months for alternative provision to start when it was decided B could not return to school. In the circumstances, I would have expected alternative provision to be in place much sooner. Although the Council was aware of the problem, it does not appear to have done anything to arrange alternative provision. This is fault.
40. I have set out my recommendations to remedy the injustice cause by the Council’s faults below.

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Agreed action

41. 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. We do not have the capacity to recommend compensation for lost earnings.
42. Fault by the Council meant B did not begin to receive alternative provision for almost three months when it was decided he could no longer go to school, and then he only received part-time education for two terms.
43. I recommended the Council:
• apologises for the faults I have identified;
• offers a symbolic payment of £3,000 to recognise the impact on Ms M and B of the disruption to B’s education.
44. I recommend the Council makes the apology and payment within six weeks of my final decision. The Council should send us evidence it has completed the agreed actions.
45. The Council accepted my recommendations.
46. We can also make recommendations to ensure similar faults do not happen in the future. We recently investigated a similar complaint and the Council agreed to share our report, “Out of school, out of mind?” with staff. I will not, therefore, make further recommendations on this occasion.

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Final decision

47. 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