Thurrock Council (24 006 343)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 16 Apr 2025

The complaint
The Ombudsman’s role and powers
What I have and have not investigated
How I considered this complaint
What I found
Action
Decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council had failed to provide education and support for her son (Y) when he could not attend school. We found fault with the Council. This fault caused injustice to Y as he missed out on the support he needed and to Mrs X. The Council agreed to apologise, make payments to recognise Y’s loss of education and Mrs X’s distress and carry out service improvements.

The complaint

Mrs X complains about the Council’s failure to arrange education for her son (Y) when he could not attend his school from October 2023. The Council, she says, failed to complete actions identified at the Council’s special educational needs (SEN) panel meetings and to communicate with her following these meetings.
Mrs X says the lack of provision impacted Y’s health and caused avoidable stress to the whole family.

The Ombudsman’s role and powers

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)
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)
We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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)
Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

What I have and have not investigated

I have not investigated any actions of Y’s mainstream school (School 1). As explained in paragraph five our jurisdiction does not extend to schools.
I have not investigated the Council’s actions about Y’s education from October 2023 up to the end of February 2024. Mrs X appealed Y’s Education, Health and Care (EHC) Plan issued in August 2023 asking for a special school (School 2) to be named in place of School 1. During the appeal the Council agreed to name School 2 for Y from September 2024 and Mrs X withdrew her appeal in February 2024. School 1 remained named in Section I of Y’s EHC Plan for the rest of the school year 2023/2024.
As explained in paragraph seven we cannot investigate any matter which is linked to the appeal issues. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
As Y’s school non-attendance was linked to the issues Mrs X raised in her appeal, we cannot investigate what happened with Y’s education between October 2023 and February 2024.

How I considered this complaint

I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I also referred to our guidance notes “Principles of Good Administrative Practice”.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Legal and administrative framework

Alternative provision

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.
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. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Special educational provision

The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
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)
It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

EHC Plan review

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 take place. The process is only complete when the council issues a decision about the review. (Children and Families Act 2014, section 44)

What happened

Background

In 2022/2023 Y struggled with attending School 1. The number of fixed period exclusions increased even though School 1 had implemented behaviour and learning interventions. School 1 introduced part-time timetables for Y.
Y’s difficulties at School 1 were discussed during an Annual Review of his EHC Plan in April 2023. Mrs X noted her intention to ask for a change of placement, pointing out School 2 as her preference.
The Council issued Y’s final amended EHC Plan in August, naming School 1 in Section I. Mrs X appealed and asked for School 2 for Y.
Y stopped attending School 1 in October 2023.

From March to July 2024

At the end of February 2024 the Council told Mrs X School 2 had offered a place for Y from September 2024. The Council asked her to send the costs of the provision (Provider 1) she wanted Y to access until the end of the school year.
When replying to the Council’s request Mrs X explained why Y could not attend School 1:

he did not feel safe there;
Y kept receiving fixed period exclusions;
despite having a part-time timetable Y had to leave school early;
School 1 said they had offered all the support they could but still had struggled to keep Y safe;
Y could not leave the house at the time.

At the end of March School 2 invited Y to attend a transition programme on two days in July. School 2 also suggested attending an open evening earlier in the month.
Mrs X asked Y’s case officer for an update about Y’s education at the beginning of May 2024. She said School 1 failed to try to get Y back to school or to send any work for him. He stopped receiving speech and language therapy (SLT).
Y’s case officer explained she was not aware of Y being out of education as she had only recently taken over Y’s case. The case officer suggested asking School 1 to arrange a review of Y’s EHC Plan to discuss his education and transition to School 2.
Mrs X told Y’s case officer the Annual Review of Y’s EHC Plan had already taken place and it was agreed he would remain on School 1’s roll. The Council told her Y would receive education at an outdoor education centre (Provider 2) on three days a week and tutoring sessions once a week to support his transition to School 2. This did not happen. Y had been receiving some support from the specialist outreach service. Mrs X said she had been paying a friend to keep Y safe at home when she and her husband were at work.
The specialist outreach service teacher who had been supporting Y offered also to help Y in the transition to School 2. The Council did not follow this up.
At the beginning of July 2024 the Council reviewed Y’s EHC Plan.

The Council’s SEN panels from the end of February 2024

At the SEN panel meeting at the end of February Y’s education was discussed. After considering Provider 1’s costs the panel did not agree to fund this provision. The panel decided Y’s case officer should arrange a tutor or carer who would support Y’s social interaction in the community and support Y’s transition to School 2 in the summer term. The case officer should also explore Provider 2.
At the beginning of May 2024 the Council’s SEN panel considered an outstanding financial query about some funding which was paid to School 1 for Y and could not be used for him as he was not at school. The panel agreed to reclaim this funding from School 1.
Nearly two weeks after Mrs X’s contact with the Council in May 2024 the Council discussed Y’s education at the SEN panel meeting. The case officer asked the panel to clarify details of the provision needed from Provider 2 and details of tuition for Y. The panel’s outcome was for the case officer to talk to School 2 about transition and what they could facilitate.

Complaint

In its stage one response to Mrs X’s complaint the Council did not accept it had failed to action the outcomes of its SEN panels.
At stage two the Council accepted there was a lack of communication between senior caseworkers and Y’s case officers about the steps agreed for Y. The Council also recognised poor communication with Mrs X. The Council apologised and said it would carry out some training for its staff.

Analysis

In February 2024 the Council agreed to arrange a tutor or carer for Y as well as to explore tutoring from Provider 2. This suggests the Council decided Y could not access School 1 and needed alternative provision. The Council failed to follow this up.
The Council failed to ensure Y received suitable education and the special educational provision included in his EHC Plan when he could not attend school. Although the Council did not have to agree Provider 1, whom Mrs X had asked for, it should have found alternative arrangements to ensure Y received the education and support he needed. The Council also failed to follow up the offer from the outreach service teacher of support for Y during transition to School 2.
In its stage two response to Mrs X’s complaint the Council recognised its failings in the communication between members of the SEN panels and Y’s case officers. The case officers were not aware of the panel’s decisions, which meant that no action was taken.
Y’s new case officer who responded to Mrs X’s correspondence in May 2024 did not know anything about Y’s educational circumstances, including his long-term absence from school. This suggests a lack of handover when allocating new case officers. Staff changes should not affect the service provided by the Council to the children with SEN.
The Council failed to communicate with Mrs X about Y’s education. Y’s case officers responded to Mrs X’s requests by referring them to the Council’s SEN panels. The panel decisions lacked details which made further submissions from the case officers necessary. No action followed despite the Council’s agreement Y needed support when out of school until the end of July 2024.
To demonstrate good administrative practice councils should provide effective services and keep to its commitments. This did not happen for Y and Mrs X.
The Council’s failings described in the paragraphs above are fault. This fault caused injustice to Y and Mrs X:

for Y the Council’s failings meant that he did not receive the suitable education and special educational provision he needed for a few months before he moved to School 2. The only support he received was weekly sessions with the specialist outreach teacher. As a result Y fell further behind his peers academically. The Council’s failure to follow up the specialist outreach teacher’s offer of support for Y during his transition to School 2 would have made the process more difficult for Y. At the time of the transition the specialist outreach teacher was the only professional with whom Y had a trusting relationship.
Mrs X was increasingly frustrated by the Council’s lack of support for Y. After refusing to fund Provider 1 she had identified as suitable for Y, the Council failed to make alternative arrangements. Mrs X spent much time contacting the Council and asking it to provide services to Y. Despite SEN panel’s decisions about support for Y, no education or support were put in place. Mrs X remained concerned about a growing gap between Y and his peers and Y’s readiness to start a new school from September 2024.

When advising on what to do to ensure educational support for Y, his case officer told Mrs X to ask School 1 to arrange a review of Y’s EHC Plan. It is the council’s responsibility to ensure EHC Plans are reviewed at least annually but more often if needed. The Council can ask a school to arrange a review but the ultimate responsibility rests with the Council. The Council should have decided whether Y’s EHC Plan needed to be reviewed and if so it should have made arrangements for this to happen.
Although the Council failed to take responsibility for arranging a review of Y’s EHC Plan in the summer term of 2024, the review took place at the beginning of July 2024. The Council’s failing did not, therefore, cause injustice to Y and Mrs X.

Action

To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:

apologise to Y and Mrs X for the injustice caused to them by the faults identified. 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 the apology I have recommended;
pay Mrs X £2,400 to recognise Y’s loss of education and special educational provision from March up to the end of July 2024;
pay Mrs X £500 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

We also recommend the Council within three months of the final decision:

review its decision-making process by SEN panels to ensure:

when making decisions SEN panels give enough details to allow case officers making specific arrangements for children and young people with SEN;
there is a system in place for checking how outcomes of the SEN panels have been implemented.

ensure new SEN case officers receive briefing when taking over children’s cases.