Summary: Miss X complained about how the Council provided a suitable education for son, Z, and how it met her needs as a carer. There was fault in how the Council failed to make a decision following a review of Z’s Education Health and Care plan, failed to keep his education under review, reduced his hours of education in early 2024, failed to assess Miss X’s needs as a carer and how it communicated with her. This caused Z to miss out on some education and caused both Miss X and Z avoidable distress. The Council agreed to apologise and pay Miss X a financial remedy.

The complaint

1. Miss X complains the Council has failed to ensure her son, Z, received a suitable education since 2019. She says the Council failed to:
• name a suitable school in Z’s EHC plan and ensure the plan met his needs;
• provide suitable alternative education when Z did not start at his named school in September 2022;
• provide free school meal vouchers when Z was not on a school roll;
• provide suitable social care support for Z;
• offer Miss X a parent carer assessment or support her as a carer;
• respond to her requests for more support; and
• keep its promises to resolve the problems.
2. As a result, Miss X says:
• Z went without suitable education and has lost out on opportunities to develop and make friends;
• both she and Z were caused significant distress, including affecting their relationship; and
• she suffered financial losses due to increased utility costs and a lack of free school meals.
3. She wants the Council to:
• apologise;
• keep in contact with her regularly;
• properly recognise the education Z missed;
• provide Z with suitable education and an EHC plan which meets her needs;
• increase the out of home activities it arranges to the 15 hours a week it previously paid for;
• increase the social care support it provides for Z;
• provide her with the support she needs as a carer; and
• pay her a financial remedy.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. 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.
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)

Back to top

What I have and have not investigated

12. I have not investigated Miss X’s complaints about events before September 2022. Miss X’s complaint about those events are late and I am not satisfied there are good reasons to consider those earlier events now.
13. I have also not investigated anything which Miss X could have appealed to the SEND Tribunal. This includes the content of Z’s EHC plan, or which schools the Council said Z could attend. I am satisfied it would have been reasonable for Miss X to have used her appeal rights if she disagreed with Z’s EHC plan.
14. I have investigated the other parts of Miss X’s complaint from September 2022 onwards. While Miss X’s complaint about events from September 2022 to February 2023 are also late, I am satisfied are good reasons to investigate. There were delays in how the Council acted on Miss X’s complaint in 2023 and it is necessary to consider events from September 2022 onwards to properly investigate events after February 2023.

Back to top

How I considered this complaint

15. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
17. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education health and care plans

18. 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.
19. 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)
20. 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 show suitable 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 yearly 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.
21. Councils must arrange for EHC Plans to be reviewed at least once a year to make sure they are up to date. A 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.
22. There is a right of appeal to the 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.

Social care support for children and parent carers

23. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
24. The expectation of the ‘Working Together’ statutory guidance is that an assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need. Whether a service is required depends on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
25. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.
26. The Council says child in need plans for disabled children can be overseen by social workers or family support workers, depending on the needs of the children. The Council is likely to assign a family support worker and review plans less frequently for children who:
• are not a risk of being placed into council care;
• have parents who can advocate for them, but needs some support to do this; and
• do not live in a home where domestic abuse, mental ill health or substance misuse is present.
27. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
28. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

School meals

29. Some families with children are entitled to free school meals. Originally, the law said that councils were responsible for providing free school meals in state funded schools.
30. However, the Government moved this responsibility to the schools themselves in 1999 (The Education (Transfer of Functions Concerning School Lunches etc.) (England) (No. 2) Order 1999). From this point, councils no longer had any responsibilities for providing free school meals during term time.
31. In March 2024, the Government updated its guidance on free school meals for children who are not on a school roll and are educated otherwise than at school. The new guidance says councils should consider providing equivalent free meals or other support where:
• a child would meet the same criteria if they were in a state-funded school; and
• any meals would be provided alongside that education and would allow the child to benefit fully from the education provided.
32. During school holidays, the Council provides vouchers for children eligible for free school meals though low income, through the Household Support Fund. Schools apply for these vouches from the Council.

Background

33. Miss X’s son, Z, has special educational needs and an Education Health and Care (EHC) plan from the Council.
34. Z has struggled to attend school for several years. Before mid-2022, Z was on the roll of his local primary school (School A). However, Z had not attended school for some time and the Council had arranged 10 hours a week of out-of-school support for several years.
35. The Council issued an amended EHC plan in July 2022 saying Z should attend School B, a special secondary school, from September 2022. The Council said it sent the EHC plan to School B when it issued it, and it expected School B to arrange for Z’s transition from September 2022.

What happened from September 2022

36. The following is a summary of key events. It is not intended to be a comprehensive account of everything that happened.
37. School A contacted the Council in early September 2022 as Z had not started at School B. The Council contacted School B, asking it what was happening with Z’s transition to secondary school. The Council tried to arrange a meeting to plan Z’s transition to School B, but this meeting did not take place and School B told the Council, on reflection, that it could not meet Z’s needs. Instead, Z continued with the 10 hours a week out-of-school support, which increased to 15 hours a week after the start of the school year.
38. Around this time, the Council carried out a review of how Z could access short breaks. It agreed to provide Miss X with a direct payment to help Z access other activities out of the home during both term time and school holidays.
39. In March 2023 the Council completed a child and family assessment to consider Z’s social care needs. This resulted in the Council placing Z on a child in need plan and reviewing the direct payment it provided. This changed to 15 hours a week during school holidays. The Council assigned the plan to a family support worker and held several reviews between April 2023 and 2024.
40. The Council reviewed Z’s EHC plan in April 2023. However, there is no evidence the Council made a decision about whether to amend Z’s EHC plan and the existing out-of-home education continued.
41. At the start of 2024, the Council reduced Z’s hours of out-of-home education to 10 hours a week. It said this was because it intended to introduce more formal tuition.
42. However, it did not refer Z for extra tuition until March 2024, and the full tuition hours were not in place until May. Meanwhile, Miss X used some direct payments to fund extra hours for Z outside the home, as this helped with his behaviour while at home. Even once the extra tuition was in place, Miss X said Z struggled to take part in all the tuition hours, though he still enjoyed the other out-of-home activities.

My findings

Education provision for Z

43. The Council said it expected School B to arrange Z’s transition to secondary school. However, it was still the Council’s responsibility to secure all the provision in Z’s 2022 EHC plan, including the school placement. It knew, in early September 2022, X had not started at School B. The Council tried to arrange for Z’s transition to School B, but this did not happen because the School told the Council it could not meet Z’s needs. Given that, at the time, Miss X expressed reservations about Z attending School B and the School said it could not meet Z’s needs, I do not consider there was fault in how the Council took no further steps to arrange for Z to attend School B. Instead, it tried to look for alternative school placements and continued to provide alternative education for Z.
44. The Council should have kept any alternative education under review. However, there is no evidence the Council had effective oversight of the education Z was receiving between September 2022 and April 2023, when it carried out an annual review. When it carried out the annual review in 2023, the Council again missed opportunities to properly review the education it was providing for Z, or to work towards him moving back into more formal education. It did not make any changes to Z’s education until 2024 and has provided no evidence to show how it decided the arrangements it made were suitable.
45. I am satisfied that lack of oversight into Z’s education was fault. However, I do not consider this led to Z missing out on education between September 2022 and the end of 2023. The evidence shows Z was on a restricted part-time timetable when he was last in school, and that he has struggled to take part in the full 20 hours a week the Council arranged from mid-2024. Therefore, I consider it would have been unlikely Z would have been able to take part in more than the 15 hours a week education the Council provided to the end of 2023.
46. The hours of the existing out-of-home education Z received reduced from 15 to 10 hours a week at the start of 2024. The Council said this was because it wanted to increase the amount for formal tuition Z took part in. However, it did not refer Z for that tuition until March 2024, and the full hours were not in place until May 2024. The Council has not provided any explanation for why it believed Z did not need or could not take part in 15 hours of education between January and May 2024. I consider the Council’s failure to provide the full 15 hours of education for Z between January and May 2024 to be fault.
47. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to recognise the impact of that loss. Taking into account Z’s needs as set out in his EHC plan, the education he would likely have been able to take part in, and the part-time support he did receive during that time, I consider a payment of £600 per term, for two and one third terms in which Z received only 10 hours a week support, to be an appropriate remedy.
48. From May 2024 the Council arranged 20 hours a week of education for Z, of which he has been able to take part in around 15 hours. Given this is one-to-one support, I am satisfied it is broadly equivalent to full-time education. It is not the Ombudsman’s role to decide what education the Council should provide or how this should be split between formal tuition and other out-of-home education.
49. Since the period I have investigated, the Council has agreed a new alternative education package for Z with Miss X.

2023 annual review

50. After the Council reviewed Z’s EHC plan in April 2023, it should have told Miss X whether it planned to make any amendments to his EHC plan within four weeks. However, there is no evidence the Council made this decision or told Miss X what it had decided. That was fault which caused Miss X avoidable worry and distress and denied her the right to appeal the Council’s decision.
51. I cannot say what would have happened had the Council decided whether to amend Z’s EHC plan at the time. However, there is a remaining uncertainty about whether Z’s education would have been different. That is a further injustice to Miss X.

School meals

52. The Council accepts that Z would have been entitled to free school meals if he had been on a school roll in September 2022. However, Z did not start at School B and I am satisfied this was because there was a general agreement that School B could no longer meet his needs.
53. From April 2024, when the Government introduced new guidance, councils had a duty to consider whether to provide equivalent support for children who would be entitled to free school meals but were being educated otherwise than at school. There is no evidence the Council reviewed Z’s entitlement to that support when the guidance changed. That was fault. The Council should decide, following the guidance, whether it should have offered equivalent free school meal support to Miss X from April 2024 onwards and, if appropriate, make up the support it did not provide.

Social care support for Z

54. The Council carried out a child and family assessment, considering Z’s needs, in March 2023. That assessment took into account both Miss X’s and Z’s views, along with the other evidence available to the Council at the time. It is not the Ombudsman’s role to decide what support Z needs. That was the Council’s decision to make. Since there was no fault with how the Council carried out its assessment, I cannot question the outcome.
55. Miss X said she wanted the plan to be overseen by a social worker and to be reviewed frequently. However, the Council is entitled to decide how it supervises and monitors child in need plans. Its policy says that some plans will be overseen by social workers and other plans will be supported by other officers in the Council’s disabled children’s team.
56. Miss X’s circumstances fall within the Council’s policy for plans to be supported by a family support worker and reviewed at least every six months. Therefore, I do not consider it was fault for the Council to monitor the child in need plan in the way that it has.

Carers assessment for Miss X

57. The Council said Miss X had not asked for a parent carer’s assessment. However, in several CIN reviews it completed in 2024, the Council noted a carer’s assessment for Miss X was still outstanding.
58. The Council noted Miss X had needs as carer, particularly for respite from her caring role. The social care assessment and reviews the Council carried out focused on Z’s needs and did not explicitly consider Miss X’s needs as a carer. The Council’s failure to complete a parent carer’s assessment for Miss X is fault. I cannot say what support Miss X might have missed out on, as this will not be known until the Council completes the assessment. However, I am satisfied the delay caused Miss X avoidable distress, and added to her feelings of not being listened to.
59. We considered the same fault and injustice in a related, earlier investigation. Therefore, I have not recommended a further remedy in this decision.

Communication and complaints handling

60. The Council’s communication with Miss X about Z’s education and social care needs has been, at times, poor. The Council accepted in its complaint response that there had been a lack of communication. I am satisfied this was the case for much of 2023 and that this caused Miss X significant avoidable frustration, on top of the other distress she experienced.
61. Despite upholding Miss X’s complaints in September 2023, the Council did not take action to resolve several of the problems it had accepted. This caused Miss X further upset and meant that she had to complain further to the Council in early 2024.
62. We considered the same fault and injustice in a related, earlier investigation. Therefore, I have not recommended a further remedy in this decision.

Back to top

Agreed action

63. Within one month of my final decision the Council will:
1. apologise to Miss X and Z for the distress, upset and missed education caused by the fault I have identified above;
2. decide what support it should have provided to Miss X instead of free school meals from April 2024 and pay Miss X any backdated support it decides she was entitled to, including any support it would have offered over the school holidays;
3. arrange with Miss X the date for the next review of Z’s CIN plan and for a qualified social worker to check the outcome of the review / the amended plan;
4. pay Miss X £2,100, made up of:
1. £1,400 to recognise the education Z missed between January and mid-May 20242, intended for Z’s future educational benefit;
2. £300 to recognise the distress, uncertainty and denial of Miss X’s appeal rights caused its failure to make a decision following its 2023 review of Z’s EHC plan;
3. £200 to recognise the distress and inconvenience caused by reducing Z’s weekly education for several months in early 2024 and failing to keep his alternative education under review; and
4. £200 to fund a suitable gift for Z to recognise the distress caused by him having his out of home activities reduced for several months in early 2024.
64. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
65. The Council should provide us with evidence it has complied with the above actions.
66. We recommended, in a related complaint, that the Council should:
• complete a parent carer’s assessment for Miss X;
• make a symbolic payment for the delay in completing this and its poor communication with her; and
• review how it identified and monitored remedial actions when responding to complaints.

I have not repeated those recommendations in this decision.

67. The Council has also already taken steps to identify children receiving education otherwise than at school since April 2024 and has begun inviting eligible parents to apply for support from the Council. Therefore, I have not made any service improvement recommendations about this.

Back to top

Final decision

68. I have completed my investigation. There was fault in how the Council failed to make a decision following a review of Z’s Education Health and Care plan, failed to keep his education under review, reduced his hours of education in early 2024, failed to assess Miss X’s needs as a carer and how it communicated with her. This caused Z to miss out on some education and caused both Miss X and Z avoidable distress. The Council agree to apologise and pay Miss X financial remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman