Summary: Mrs X complains the Council failed to provide a suitable education for her son and failed to provide Speech and Language and Occupational Therapy provision set out in his Education Health and Care Plan. We found there was fault by the Council and missing provision over a prolonged period. We recommended an apology and an appropriate payment to recognise the injustice caused.

The complaint

1. Mrs X complains the Council:
• Failed to provide suitable alternative education when her son (Y) was unable to attend school full-time from January 2023 and placed on a part-time timetable from February 2023.
• Failed to ensure Y received the provision set out in his Education Health and Care Plan (EHC Plan). Most notably this related to his Speech and Language Therapy (SALT), Occupational Health support and One-to-One support.
• Failed to ensure that Y’s school provided a safe learning environment.
2. Mrs X complains that as a result of the Council’s failings Y missed a significant amount of education and support during an exam year and this affected Y’s physical and mental health considerably. It also had placed significant pressure on them as a family.

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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. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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

7. Mrs X complained about events concerning her son that occurred since 2021. We expect complaints to be brought to us within 12 months of the complainant having knowledge of the events subject to complaint. Mr and Mrs X brought a complaint to us in May 2024. The events prior to May 2023 are out of time. However, we will exercise discretion to consider the events between January and May 2023 as these were relevant to what happened. Our investigation considers events up to May 2024 when the complaint was raised with us.

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How I considered this complaint

8. I spoke to Mrs X and considered the information she provided. I asked the Council for information and considered its response to the complaint. I took account of relevant law and guidance.
9. Mr and Mrs 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

Children and Families Act 2014

10. The Council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for a child or young person (s.42 of The Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).

Education Act

11. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
12. 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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
13. 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)

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. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the Council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What Happened

17. What follows provides an overview of the key events of the complaint. It does not detail everything that happened.
18. Mrs X’s son (referred to as Y in this statement) attended a special school in the Council’s area named in his Education Health and Care Plan (EHC Plan). Y was aged 13 at the time of Mrs X’s complaint in 2023.
19. In early 2023 Y was struggling to attend school due to anxiety and he was placed on a part-time timetable by his school. Mr and Mrs X complained to the Council and stated Y had not been receiving the support his EHC Plan required.
20. Y’s EHC Plan required (amongst numerous other things) full-time, dedicated, one‑to‑one support from a Teaching Assistant (TA) throughout the school day, and an identified key adult with whom Y could develop a trusting relationship and talk to about worries and concerns to reduce his levels of anxiety. It also included Speech and Language (SALT) sessions and Occupational Therapy input to make recommendations. The EHC Plan also specified input from a psychotherapist, a weekly play and creative arts session and use of alternative methods for recording (use of a tablet or laptop, with appropriate software for example).
21. I understand Mr and Mrs X considered the school was not using the same person to provide full-time dedicated 1:1 provision to Y each day. They complained that this was detrimental for Y and they noted that Y’s EHC Plan required a ‘dedicated 1:1 support throughout the school day’.
22. In addition to concerns about 1:1 support Mr and Mrs X complained that the support required by Y’s EHC Plan was not being provided.
23. In early 2023, the Council told us an officer was in contact with the school about Mrs X’s concerns about provision and to establish what education Y was receiving. It established Y was only attending school in the mornings and receiving some ‘outreach sessions’ two days per week. The Council noted the school also put in place attendance at an alternative equine provision service one day per week from around April 2023. The Council stated an officer remained in communication with the school and Mr and Mrs X but was unable to solve the issues.
24. The Council provided a record of the annual review of Y’s EHC Plan. The report states an annual review meeting took place on 5 June 2023. Mrs X provided evidence it took place on 19 June.
25. The annual review report includes comments on Y’s progress. It records that Y had not been offered 1:1 speech and language therapy ‘as he does not meet the criteria according to the SALT clinicians’. It stated he had taken part in some group [SALT] work. Mr and Mrs X reiterated their concerns that the SALT required by Y’s EHC Plan had not been provided. Mr and Mrs X also explained their view that Y still needed 1:1 support. In the discussion about this the Council suggested, work should be done to gradually reduce the level of it. They explained why this could be considered over time.
26. There is evidence that Mr and Mrs X sent an email to the Council the 26 June 2023 providing comments on the issues discussed at the meeting. They set out the areas of support that they did not agree should be removed. They re-iterated comments made at the annual review meeting about provision in the plan that was not being met.
27. Mr and Mrs X say they never had a response to the emails sent in June.
28. A draft EHC Plan was sent to Mr and Mrs X on 31 August 2023.
29. During 2023 the Council told us Y’s attendance at school fluctuated significantly and he remained on a part-time timetable
30. On 12 and 13 September 2023 Mrs X resent the June email and comments. She stated they had sent four emails providing parental views and she asked the Council to take all of them into account. Mrs X noted that the draft EHC Plan sent to them had wrongly referred to comments made in 2020. She stated they considered the outcomes from the last EHC Plan in 2021 should not be changing.
31. The Council told us it sent a Final EHC Plan on 3 October. It provided a copy of the covering letter suggesting it had been sent. Mrs X told us she does not recall receiving a final EHC plan on this date.
32. The Council’s position is that, on 31 October, it received further amendment requests from Mr and Mrs X to the final plan issued on 3 October. As a result, it says it sent a second final EHC plan dated 13 November 2023. The requirements for providing Y’s 1:1 support were unchanged. It stated that Y needed a ‘dedicated 1:1 support throughout the school day’.
33. Mrs X told us something different. She was clear that she made their comments in June 2023 immediately after the annual review. These were sent to the Council again in September 2023 because they had been ignored. Mrs X provided evidence of this. She says she did not make more comments after this and we have seen no evidence of new comments on 31 October.
34. In email correspondence with Mr and Mrs X in October 2023, the school stated Y was attending 25 hours per week.
35. In early November 2023 Ofsted inspected Y’s school. It found it inadequate in all areas. Amongst other things the report stated the school was ‘chaotic’ and neither pastoral care or the curriculum met pupils’ complex special educational needs (SEN). It stated staff were not sufficiently trained to understand how children with SEN learned best. It also found that staff were not aware of the support requirements set out in pupils’ EHC Plans and EHC Plans were not used to inform teachers how to teach and support pupils who had them.
36. In any event, the school did not have an up-to-date version of Y’s EHC Plan and seemed confused about its content. An email Mrs X to the council on 3 November 2023 evidences this.
37. From 1 December 2023 all pupils at the school were placed on part-time timetables for their safety following the Ofsted finding that the school inadequate.
38. In February the school stated it planned to return to a full timetable by the end of the following term. This meant Y, along with other pupils remained on a part-time timetable until April 2024.
39. Mrs X complained to the Council on 6 February 2024. The Council provided an initial response on 1 March. It responded at the final stage of the complaints process in April 2024.
40. In its response to the complaint the Council acknowledged Mr and Mrs X’s concerns that Y’s 1:1 support had not been consistent. It acknowledged that the school had requested additional resources to meet Y’s needs in 2022. In particular it stated there was some discussion about whether Y needed full time 1:1 support given he was in a specialist setting. The Council considered additional funding and decided it should not be agreed. It stated that it expected the school to be able to meet Y’s needs as it had funding as a special school and it had agreed it could meet his needs at the outset.
41. The Council told us that Y did receive 1:1 TA support when he was attending part-time and provided emails from Y’s school indicating 1:1 support was being provided. The Council noted this was not always provided by the same member of staff as Mr and Mrs X believed was required. Rather, the school considered a number of different staff could used, but that they would still provide dedicated 1:1 support for Y (i.e. not support that was shared between several pupils).
42. The Council accepted that it did not act in a timely manner to provide alternative educational provision for Y while he was on a reduced timetable. It also accepted that the individual Speech and Language Therapy (SALT) sessions set out in Y’s EHC Plan were not being provided from January 2023 and not all group sessions were provided. It stated that, while a therapist was of the opinion in June 2023 that SALT was no longer needed, the provision remained in Y’s EHC Plan and should have been provided. The updated EHC Plan issued in November 2023 still included individual and group SALT provision. The Council also accepted the required OT input was not acted upon.
43. The Council acknowledged there were difficulties at the school which were highlighted by recent Ofsted inspections which it was working with the school to address.

Was there fault by the Council

Education Health and Care Plan (EHC Plan) Timescales

44. The 2022 annual review of Y’s EHC Plan took place on 5 May 2022. So, Y’s EHC Plan should have been reviewed again by 5 May 2023. The 2023 review took place around 10 weeks late on 19 June. A draft EHC Plan should have been issued to Mrs X setting out the proposed amendments within four weeks of the Annual Review meeting. In Y’s case, the draft was due by 17 July.
45. The Annual Review paperwork was not circulated until 10 July, and it took until 31 August to issue a draft EHC Plan. This was around 6 weeks late.
46. The Council says it sent a final EHC Plan on 3 October 2023. It then sent a revised final EHC Plan on 13 November 2023.
47. It is not clear whether a final EHC Plan was actually issued on 3 October. If it was, it seems most likely that the Council issued it without considering Mr and Mrs X’s comments from June (resent in September). I say this firstly because it was necessary to issue a further EHC Plan on 13 November. Secondly, there is no evidence that this second EHC Plan was needed because of additional comments made by Mr and Mrs X on 31 October as the Council has suggested. There is, however, evidence that Mrs X had already had to resend their parental comments in September because they had not been taken into account in the draft EHC Plan, having originally been sent in June. I also note that in a separate investigation about this Council for a different child, we found that the Council had to issue a second final EHC Plan for them in November 2023 because the Council had failed to consider key information when issuing the first final EHC Plan in October 2023.
48. Overall, the final EHC Plan issued on 19 November 2023 was around 18 weeks late. The delays in reviewing the EHC Plan occurred at a point that Y was known to have been struggling. This is a point where we would normally expect an urgent review to happen, to determine whether the school could still meet Y’s needs and what support was required to help Y return to education. The delay represents fault.

Educational Provision

49. The Council has a legal duty to make sure a child or young person receives the special educational provision set out in section F of their EHC Plan. This is non-negotiable.
50. 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. However, 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. 

51. Where a pupil is not in school, or is on a part-time timetable and they also have an EHC Plan we also expect councils to try and secure as much Section F provision as is possible in the home or alternative provision setting.

1:1 Provision

52. The Ombudsman can only decide complaints about a lack of provision based on an ordinary interpretation of how it is described in an EHC Plan. Where the wording is open to interpretation, we cannot speculate about what may have been intended.
53. I understand Mr and Mrs X consider the 1:1 support Y received was inconsistent and not always with the same dedicated person, even if they were seemingly available. The Council provided evidence that indicates that Y was receiving dedicated 1:1 support. However, this was being provided by one of a number of different staff on different days. On the basis of the information I have seen, I do not have grounds to conclude that Y’s 1:1 provision was not being met. Any dispute about whether the wording of the EHC Plan is sufficiently clear would need to be appealed to a Tribunal to seek to re-phrase or better specify and quantify provision.

SALT & OT Provision

54. The Council was aware in January 2023 that Y was unable to attend school full-time and that he was largely not receiving the relevant SALT or the OT related provision. Although the Council was aware of this, it did not act promptly to ensure this provision was made available, so Y missed out on this provision for over a year. This was clearly fault and impacted Y during a key year of education. It also caused distress to Mr and Mrs X.

Overall EHC Provision and Education

55. I note the Council was in contact with the school, and some education was being provided, part-time for Y. Y’s attendance increased during 2023 and for six months of the year the school provided equine therapy. So, some education was being provided.
56. When a pupil of compulsory school age is unable to attend school for physical or mental health reasons, or otherwise, s.19 of the Education Act may apply. Statutory guidance (Arranging education for children who cannot attend school because of health needs) makes it clear that Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. However, we would expect a council to provide evidence that it has objectively considered whether the education arranged by the school is suitable.
57. In Y’s case there is no indication that the Council actively considered what education Y was receiving to determine if it was a suitable education. Officers had contact with the school and with Mr and Mrs X but it has provided no evidence that it properly considered the suitability of the part-time provision Y was receiving. This was fault.
58. In addition to not considering its Section 19 duty, we found the Council had failed to properly follow up and determine what EHC Plan provision was being made for Y as a whole. Councils are under non-delegable duty to ensure that pupils receive the support set out in their EHC Plan. There is clear evidence that the lack of EHC Plan support went much further than SALT and OT provision. A memo by the school evidenced numerous areas where it openly accepted the EHC Plan support had not been, and was not being provided in early 2024.
59. Taken together, the evidence provided by Mrs X, the Council and Ofsted findings from an inspection in November 2023 provide evidence that Y’s school was chaotic and that staff at the school were not aware of, nor making available the provision that children with EHC Plans were legally entitled to receive. Ofsted remarked that EHC Plans were not being used. As Y’s school is a special school where all pupils have EHC Plans, this is an unacceptable state of affairs that is difficult to understand.
60. The information we have now seen provides evidence that in various specific areas, Y’s EHC Plan support was not provided. These included a lack of SALT and OT requirements, no input from a psychotherapist, the lack of a weekly play and creative arts session and the use of alternative methods for recording (use of a tablet or laptop with appropriate software).
61. Furthermore, Y’s EHC Plan included many additional, elements that should underpin and tailor teaching methods and Y’s curriculum to his needs. This is to best enable him to take advantage of his education, regardless of his attendance. On balance, it seems doubtful that Y also received the wider support that these elements required, other than the availability of the 1-2-1 staff member. The failure to ensure he received his overall EHC Plan provision was fault. Given our findings, we have recommended a remedy for overall non-provision of his EHC Plan support between January 2023 and May 2024.
62. Where fault has resulted in a full loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In deciding this, we consider, amongst other things, the severity of the child’s SEN as set out in their EHC plan, any educational provision – full time or part time, without some or all of the specified support – that was made during the period. We will also consider if the period concerned was a significant one for the child or young person’s school career.
63. In Y’s case we found that, for four and a half terms (all of 2023 and half of 2024), he did not receive the EHC Plan support that he should have. Given Y’s needs and taking account that he received some limited provision, I have recommended the Council should pay Y £1,750 per term. This is a total of £7,875.
64. I have also recommended £500 be paid to Mr and Mrs X to recognise the distress caused by the prolonged period of missed provision and the delays in the EHC Plan review process.
65. We have not investigated the safety of the school as we do not have jurisdiction to consider the way schools are run and because general issues at the school were addressed via an Ofsted inspection.
66. I have not made recommendations for service improvements in this case. This is because we have made similar decisions about this council about similar complaints over the same time period. These have included service improvement recommendations.

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Action

67. Within four weeks of my final decision:
68. The Council should apologise to Mrs and Mrs X and Y for the fault we have identified. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
69. The Council should make a payment to Mr and Mrs X for Y of £7,875 to recognise the missed Education, Health and Care Plan provision over a prolonged period.
70. The Council should make a payment to Mr and Mrs X of £500 to recognise the distress the lack of education and delays on the Education Health and Care Plan review process caused.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. There was fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman