Summary: Miss X complained the Council delayed issuing an education, health and care plan for her child, failed to provide sufficient alternative education, gave her misinformation about a placement, and communicated poorly with her. Miss X said this caused distress, meant she had to leave her job, and her child missed out on education. We find the Council at fault and this caused injustice. The Council will apologise and make a further payment to remedy the injustice.

The complaint

1. Miss X complained about the way the Council handled her child’s special educational needs. Specifically, she complained the Council:
1. delayed issuing an education, health and care plan after a review;
2. failed to provide sufficient alternative educational provision for her child;
3. wrongly said her child had a secured and funded placement; and,
4. communicated poorly with her.
2. Miss X said this caused unnecessary and avoidable distress. She said she had to leave her job to care for her child, which had a financial impact. She said her child missed out on education and was isolated because they were not being socialised with other children.

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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 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)
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. 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. 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

9. As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
10. Regarding part b of the complaint, Miss X complained to us in June 2024. She complained that her child, B, had been on a reduced timetable since June 2022. She said this was not sufficient provision for B.
11. I have found no good reasons to exercise our discretion and look back any further than 12 months before Miss X complained to us. I do not consider it proportionate to investigate B’s educational provision for a short number of weeks at the end of the summer term 2023.
12. For this reason, I have investigated B’s educational provision between September 2023 and July 2024.

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How I considered this complaint

13. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
14. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, health and care plans

15. A child or young person with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
16. 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 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) 
17. Where the council proposes to amend an EHC plan, case law found councils must issue the final amended EHC plan within a further eight weeks. This means the council must issue the final plan within 12 weeks of the review meeting.

Alternative educational provision

18. 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.
19. The Department for Education guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
21. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

22. Miss X’s child, B, has an education, health and care (EHC) plan.
23. There was a review of B’s EHC plan in October 2023. The Council decided to amend B’s EHC plan to include a specialist placement.
24. Between December 2023 and February 2024, Miss X called the Council 13 times. She wanted an update on the specialist placement and the EHC plan.
25. In January, Miss X complained.
26. The Council contacted Miss X in April. It met with Miss X in May. The Council told Miss X it would not issue a stage one complaint response. This was because it had spoken to her about her complaint and was working to resolve the issues.
27. Miss X asked for stage two.
28. The Council sent Miss X its stage two response in August. It accepted it had not responded to Miss X’s 13 requests for callbacks between December and February.
29. The Council said it had consulted with specialist schools. The Council said while it did this, B had been getting alternative provision at their current school. It said B had been on a part-time timetable since September 2023.
30. The Council accepted it still had not issued B’s EHC plan. It also accepted it should have arranged a phone call or a meeting with Miss X to discuss her complaint. It accepted it had not engaged with its own stage one complaint process. The Council said it had made no effort to resolve her complaint by phone call or meeting, and there was no written stage one response.
31. The Council said it would issue B’s EHC plan within two weeks. It offered Miss X £450 to acknowledge the delay issuing B’s EHC plan which had denied Miss X her right to appeal the plan. It offered £100 for its poor communication which included the lack of a stage one response. The Council said it would remind staff of its stage one complaint process.
32. Miss X accepted the £450 and £100 payments.

Analysis

Issuing the education, health and care plan

33. Miss X complained the Council delayed issuing an education, health and care (EHC) plan after a review (part a of the complaint).
34. The EHC plan review was held in October 2023. The Council should have issued the amended EHC plan in January 2024 (12 weeks after the review meeting). The Council actually issued the plan in August 2024.
35. This is a delay of seven months. This is fault. This caused Miss X injustice because she was denied her right to appeal the plan.
36. The Council made a payment to Miss X of £450 to remedy the injustice caused by this delay. I am not satisfied this fully remedies the level of injustice caused.
37. I have considered our published guidance on remedies. I find that £100 per month of delay is appropriate and proportionate to the level of injustice caused. £100 per month multiplied by seven months is £700.
38. The Council has already paid £450. I therefore find the Council should make an additional payment of £250, which would add up to £700 in total to remedy this injustice.

Alternative educational provision

39. Miss X complained the Council failed to provide sufficient alternative educational provision for her child, B (part b of the complaint). She said B did not get enough educational provision. She said B was bored and was not being challenged.
40. The Council said its section 19 duties to provide alternative educational provision were triggered in October 2023. It said it worked with B’s school to design and provide a package of alternative provision which the school put in place and monitored.
41. The Council said it kept this provision under review. It said it increased B’s provision twice between October 2023 and July 2024 because it considered this was appropriate for B’s needs. I find this is evidence of good practice.
42. The Council said B’s provision was one-to-one which was more intensive than a classroom education. I agree, and this is in line with national guidance (see above) about part-time timetables and one-to-one tuition.
43. I find the Council satisfied itself that the package of alternative provision was suitable for B’s age, ability, aptitude and special educational needs. I find no fault in how the Council decided this.
44. For these reasons, I do not find the Council at fault.

B’s placement

45. Miss X complained the Council wrongly said her child had a secured and funded placement (part c of the complaint).
46. Miss X said the Council told her in early August 2024 that B’s specialist placement, and the funding for that placement, had not been secured. She said it then told her in its stage two complaint response later that month that the placement had been agreed, and funding had been secured.
47. Miss X said the Council did not agree funding, and therefore did not secure the placement, until the end of August at its panel. She said the Council told her that B’s placement and funding had been secured two days before term started.
48. The Council’s stage two complaint response said it understood from B’s officer that the Council had agreed to fund the placement.
49. The Council said it considered B’s placement at its panel in July. It said the panel agreed the placement in principle pending discussions about funding and provisions regarding B’s EHC plan. It said the exact amount of Council funding was not agreed at that panel. The funding was agreed in late August.
50. I do not find the Council wrongly said that B had a secured and funded placement in its stage two complaint response in August. In that response, the Council said it understood it had agreed to fund the placement. This was accurate, because the Council had agreed in principle, at the July panel, to fund the placement. All that remained was to agree funding and details of EHC plan provision.
51. For this reason, I do not find the Council at fault.

Communication

52. Miss X complained the Council communicated poorly with her (part d of the complaint).
53. In the Council’s stage two complaint response, it upheld that it had communicated poorly with Miss X by failing to respond to her 13 requests for callbacks. I agree that this is fault. This caused injustice because it caused unnecessary and avoidable distress and uncertainty.
54. Also in the Council’s stage two response, it upheld that it had failed to properly respond to Miss X’s complaint at stage one. The Council did not call Miss X or meet with her to discuss her complaint, and it failed to send a stage one complaint response. This is fault. This caused injustice because it caused unnecessary and avoidable distress and uncertainty.
55. The Council made a payment to Miss X of £100 to remedy the injustice caused by its poor communication. I am not satisfied this fully remedies the level of injustice caused.
56. I have considered our published guidance on remedies. This sets out a maximum payment of £500 to remedy distress and uncertainty. In this case, I consider a payment of £350 is appropriate and proportionate to the level of injustice caused here. I take into account the lengths that Miss X went to in trying to contact the Council, the length of time involved, and the Council’s failure to respond to Miss X’s complaint appropriately at stage one.
57. The Council has already paid £100. I therefore find the Council should make an additional payment of £250, which would add up to £350 in total to remedy this injustice.

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Action

58. Within four weeks of this decision, the Council has agreed to apologise to Miss X in writing for the injustice caused by the delay issuing B’s EHC plan (part a of the complaint) and the injustice caused by its poor communication (part d of the complaint).
59. We publish 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 this apology.
60. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £500. This is made up as follows:
• £250 for the injustice caused by the delay issuing B’s EHC plan (part a of the complaint). As I have said above, this £250 added to the £450 the Council has already paid adds up to £700, which I find is an appropriate and proportionate remedy for the level of injustice caused by this delay; and,
• £250 for the injustice caused by its poor communication and poor complaint response (part d of the complaint). As I have said above, this £250 added to the £100 the Council has already paid adds up to £350, which I find is an appropriate and proportionate remedy for the level of injustice caused by the poor communication and poor complaint response.
61. The Council should provide us with evidence it has complied with the above actions.
62. We have upheld a number of complaints against the Council for issues relating to its duties around children’s special educational needs and EHC plans. The Council has an action plan to improve its service around issuing EHC plans after annual reviews and to monitor its processes. For this reason, I do not consider it necessary to recommend any further service improvements.

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Decision

63. I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman