Summary: Miss X complained that the Council had failed to secure suitable education for her son (Y) and had failed when reviewing his Education Health and Care Plan. She also complained about the lack of adequate training for the Council’s staff. We found fault with the Council’s delay to address Miss X’s concerns about the delivery of certain special educational provision by Y’s school and its delay to issue Y’s amended Education Health and Care Plan. We also found fault with the Council’s delay when considering Miss X’s complaint. The Council’s fault caused injustice to Miss X. We recommend the Council apologise and make payments to Miss X to recognise her distress and time and trouble taken to complain.

The complaint

1. Miss X complains about the Council’s:
• delays completing the Education, Health and Care (EHC) Plan process after an Annual Review of Y’s EHC Plan frustrating Miss X’s appeal rights;
• failure to consider the suitability of Y’s placement;
• failure to comply with the guidance regarding reintegration;
• failure to provide Section F provision, including securing appropriate staff training;
• failure to provide alternative educational provision;
• threats of prosecution;
• failures within the Council’s complaint handling, including not addressing parental concerns within the Council’s complaint responses and incomplete information on the incident that happened at school;
• failure to implement training for staff working with neurodivergent families;
• missed opportunities by staff members to support processes to ensure a suitable placement for Y and full-time education.
2. Miss X says the Council’s failings had a negative effect on Y’s education and development. They also, she says, affected her finances as she had to suspend her work.

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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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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.
9. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
10. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
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)
12. 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.

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What I have and have not investigated

13. We normally investigate what had happened in the last 12 months before the complainant came to use. Miss X brought her complaint at the end of July 2024. Because of the Council’s delay in providing its stage two response to Miss X’s complaint, I have decided to extend my investigation to May 2023.
14. I have investigated what happened up to the beginning of July 2024, when the Council issued Y’s final post-review EHC Plan. This is because, as explained in paragraph five of this decision, any later issues would need to be raised with the Council first.
15. I have not investigated anything that happened at Y’s school, including an incident in December 2023, after which Y stopped attending school. This is because the law prevents us from investigating such matters.

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How I considered this complaint

16. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
17. Miss 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

Legal and administrative framework

Alternative 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 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)

Attendance

20. Councils must have regard to statutory guidance - Arranging education for children who cannot attend school because of health needs (Dec 2023). This 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. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative education.

Delivery of special educational provision

21. 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)
22. 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))
23. 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 demonstrate appropriate oversight in gathering information to fulfil its legal duty. At a minimum we expect it 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. 

Reviews

Special Educational Needs and Disability Regulations 2014 specify councils’ duties when reviewing children’s and young person’s EHC Plans:

• councils must review an EHC Plan at least every 12 months;
• within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• when the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• where the council does not agree the suggested changes it may still issue the final EHC Plan;
• in any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)

Equality Act 2010

24. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.

Complaints

25. The Council will acknowledge receipt of the complaint within three working days. It will aim to respond in full within 15 working days. If it is not possible to respond within this timescale the Council will provide the complainant with regular updates at least every two weeks, explaining its reasons for the delay.
26. At stage two a senior Council’s officer will review the complaint. The timescales and the process are the same as at stage one.

What happened

Background

27. From September 2022 Y was placed at a special school (School 1). In Y’s EHC Plan issued in April 2023 the Council noted that following the transition Y started attending School 1 with individual support and his mother present for two hours twice a week. Y continued hourly community visits with two members of staff and his mother. School 1’s headteacher and Miss X were to review this plan at least half-termly.
28. School 1 is a community special school for pupils with profound and multiple learning difficulties, severe learning difficulties and autism spectrum disorder (ASD).

Y’s education from May 2023 up to July 2024

29. Y’s EHC Plan issued in April 2023 included provision for:
• full-time 1:1 support;
• consistent school staff with an identified key person;
• staff working with Y will be trained in ASD, demand avoidance and autistic anxiety and low arousal approach.
30. After a transition meeting in May 2023 School 1 suggested Y should continue with the plan described in paragraph 27 above.
31. In June 2023 Miss X told School 1 Y had been struggling when attending school. Miss X queried the suitability of certain members of staff working with Y. School 1 agreed to fund offsite swimming lessons for Y in the summer term and expressed a long-term goal for Y to attend school full-time.
32. School 1 confirmed that in September 2023 all members of School 1’s staff would receive training on pathological demand avoidance. At the July transition meeting the current plan for Y’s education was confirmed. Miss X was concerned about Y’s anxiety which was affecting all the family members.
33. In August 2023 Miss X asked School 1 to consider offering Y a bespoke package of support from an external organisation which helps children who have disengaged from education (the Education Centre).
34. In September 2023 Y could not return to School 1. School 1 carried out checks and provided some materials for Y to use at home. Miss X communicated her concerns about Y’s inability to attend School 1.
35. In late October Y returned to School 1. The person who provided him with the individual support could only offer her help in short term and only for some of Y’s sessions.
36. At the beginning of December 2023 Y was part of a safeguarding incident at School 1. At this point he stopped attending. School 1 agreed to fund the Education Centre for Y for two days a week from the end of February 2024.

Annual Review

37. An Annual Review of Y’s EHC Plan took place at the end of October 2023. At the review Miss X attended with her advocate. She repeated her request for the support from the Education Centre. She did not think Y’s transition to School 1 was successful and School 1 could meet Y’s needs. She asked the Council to consider other special schools for Y (School 2 and School 3).
38. Both School 1 and the Council disagreed with the parental view on the suitability of School 1. They suggested Y should be attending full-time to achieve his educational outcomes. The Council’s officer said that “she would not want Mum to be prosecuted for Y’s non-attendance”.
39. The Council’s officer stated the Council would not fund the Education Centre provision. The consultations would be sent to the schools Miss X had indicated. Miss X was concerned about Y’s EHC Plan being out of date and asked for the consultations to include the post-review amendments.
40. The next day after the review meeting Miss X’s advocate complained to the Council. Miss X felt attacked and blamed by the Council’s officer, who told her she could be prosecuted for Y’s low school attendance. Besides the Council failed to put in place reasonable adjustments for Miss X when she became distressed. As an autistic parent Miss X needs more time to process complex situations.
41. At the end of January 2024 the Council sent Miss X a draft EHC Plan with some post-review amendments. The Council also consulted with School 2 and School 3. Both schools refused to offer Y a place as they considered they could not meet Y’s needs. School 2 replied at the end of January 2024 and School 3 two weeks later.
42. Miss X asked the Council to consult with other special schools (School 4 and School 5) but neither could offer Y a place.
43. In the meantime School 3 placed Y on its waiting list for an assessment. After the assessment School 3 reiterated its previous position it could not meet Y’s needs.
44. In May 2024 School 5 offered Y a place from September 2024.
45. In the second week of July 2024 the Council issued Y’s final EHC Plan, naming School 5 in Section I. In Y’s final EHC Plan the Council included amendments to the Speech and Language therapy (SLT) provision, based on the independent SLT report prepared in the summer 2023. Other amendments were based on the independent Occupational Therapy (OT) and Educational Psychology (EP) reports.
46. Miss X appealed Sections B, F and I of Y’s final EHC Plan in mid-August 2024.

Complaint

47. At the end of November 2023 Miss X complained about the Council’s actions regarding Y’s education. She said his transition to School 1 had not progressed and School 1 had failed to make arrangements for alternative provision for Y at the Education Centre.
48. The Council responded to Miss X’s complaint at the end of December 2023.
49. At the beginning of March 2024 Miss X asked for her complaint to be escalated to stage two. She explained that her delay was caused by the need to employ a consultant to help her. She considered the Council had failed to address all the issues raised in her complaint. At the end of March Miss X provided a detailed list of her complaints against the Council.
50. At the beginning of April the Council told Miss X she would receive its stage two response within 15 working days. If it was not possible, the Council would provide regular updates at least every two weeks.
51. Not having received any correspondence from the Council, Miss X asked for the updates in mid-May and at the beginning of July 2024.
52. Explaining its delays the Council pointed to the staff shortages within the management team due to ill health and vacancies. The Council’s officer could not provide the date by which the Council would send its stage two response to Miss X’s complaint.
53. The Council sent its final complaint response in mid-August 2024. The Council accepted it had delayed amending Y’s EHC Plan following the Annual Review in October 2023. It explained the delay had partly been caused by Miss X’s change in preference for Y’s school placement. The Council did not uphold the rest of Miss X’s complaint.

Analysis

Alternative provision

54. The Council named School 1 in Section I of Y’s EHC Plan from September 2022. Following an Annual Review of Y’s EHC Plan, in April 2023 the Council issued a final amended EHC Plan with School 1 in Section I. There is no evidence that at this time Miss X queried School 1’s suitability for Y.
55. Since starting School 1 in September 2022 Y was on a part-time timetable. The plan was agreed between Miss X and School 1 as necessary for Y’s smooth transition to School 1 and was regularly reviewed. The Council considered School 1 could meet Y’s needs. This position was based on School 1’s opinion. For this reason the Council refused to fund the Education Centre for Y when Miss X asked for it in August 2023. I do not find any fault with the Council’s actions.
56. The Council was aware of Y’s part-time timetable and relied on School 1’s explanation why the arrangements continued. The Council took part in the Annual Review in October 2023, where Y’s part-time timetable was discussed and School 1 was encouraging Miss X to increase Y’s time at school. School 1 is a special community school where all staff are trained to support children with ASD. I find no fault in the Council’s reliance on School 1’s expertise to support Y including his re-integration. As explained in paragraph six we cannot look at School 1’s actions, only whether the Council followed the right process.
57. The Council’s position on the suitability of School 1 for Y remained the same throughout the review of his EHC Plan in the autumn of 2023. The Council considered School 1 was available and accessible for Y.
58. In the Annual Review meeting notes School 1 recorded its disagreement with Miss X about the reasons for Y’s very limited school attendance. I do not find fault in the Council’s mention of the possible prosecution for non-attendance. In the circumstances the Council’s referral to the law on the consequences of keeping a child out of school cannot be seen as an unlawful action.
59. The incident which happened at School 1 in December 2023 which led to Y’s complete dis-engagement with the school, triggered the change in School 1’s position on its ability to meet Y’s needs. Following the incident Y’s inability to access School 1 was not disputed and School 1 arranged for the Education Centre to deliver some sessions to Y. This is what we would expect.
60. We would normally allow about six weeks for making the alternative provision arrangements. Y started receiving provision at the Education Centre from the end of February 2024. Any delay in arranging education for Y at the Education Centre was not significant enough to be considered maladministration.
61. Although alternative provision funded by School 1 at the Education Centre was part-time, we cannot say, even on the balance of probabilities, whether Y could have accessed more education. This is because of his SEN profile and a very limited engagement with education in the past. We would therefore not criticise the Council for arranging part-time education for him.
62. In her comments to my draft decision Miss X said that with the right support Y was likely to access more education, as had been proven recently. I do not think that we can decide, even on the balance of probabilities, that Y’s ability to access education in the spring of 2024 was the same as later in 2024 and 2025.
63. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect councils to:
• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending.
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• retain oversight and control to ensure your duties are properly fulfilled. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
64. For the reasons explained in paragraphs 54 to 62 I consider the Council followed the right process when deciding on its duty to make alternative educational arrangements for Y.

Delivery of special educational provision

65. Responding to Miss X’s concerns School 1 repeatedly stated that without increasing Y’s school attendance it was not possible to deliver the content of Section F of his EHC Plan.
66. The Council failed, however, to explore Miss X’s concerns about the unsuitability of some members of staff working with Y, the inadequate training and the lack of consistency. Miss X was raising these issues from June 2023. As explained in paragraph 23 we would expect the Council to quickly investigate and act on Miss X’s concerns. The Council failed to do so. This is fault which caused injustice to Miss X in the form of uncertainty of whether addressing the issues raised by her would have improved Y’s ability to engage with education.
67. All Y’s special educational provision needed to be delivered by an educational setting. From the end of February 2024 Y was educated at the Education Centre chosen by Miss X. Although his education was still part-time as indicated in paragraph 62 we cannot say, even on the balance of probabilities, if Y could access any more education at the time. As a specialist provider the Education Centre was equipped to deliver Y’s special educational provision. I found no fault with the Council with respect to delivery of Y’s special educational provision from the end of February 2024.

Annual Review

68. The meeting to review Y’s EHC Plan took place at the end of October 2023. Following the review the Council decided to amend the plan and should have completed it within 12 weeks, so by mid-January 2024. The Council issued Y’s final EHC Plan in the second week of July 2024.
69. The delay in issuing Y’s EHC Plan of nearly six months is fault. It caused injustice to Miss X as her appeal rights were delayed and she spent much time contacting the Council. The Council’s fault did not cause significant injustice to Y as it is likely his school place would have been secured from September 2024, even if the Council had completed school consultations sooner. Besides when waiting for the school placement Y was receiving education at the provider found by Miss X.
70. The schools’ refusals to offer a place to Y cannot justify the Council’s delays with issuing Y’s post-review EHC Plan. The recent case law clarified the lack of councils’ flexibility regarding the review timescales.

Staff training and reasonable adjustments

71. Councils should comply with its duties under the Equality Act 2010 legislation and offer reasonable adjustments for people with disabilities to ensure access to their services. There is no specific training required but councils’ staff should recognise individual needs and act upon them. Rather than checking any training for staff on neurodiversity I have, therefore, looked at the way the Council dealt with Miss X.
72. I have seen no evidence Miss X asked for any specific adjustments to help her access the Council’s services. As Miss X is autistic School 1 funded an advocate for her, which seems a reasonable way of ensuring she received the right support, especially during meetings. I find no fault with the Council.

Complaint

73. The Council delayed its stage two response to Miss X’s complaint by over four months. It also failed to regularly communicate with Miss X during its complaint process, despite telling Miss X it would in April 2024. This is fault which caused injustice to Miss X. Miss X spent much time contacting the Council and asking when she would receive a final response to her complaint. This caused her frustration.

Service improvement remedies

74. The Council has the SEND and inclusion transformation programme in place to address the identified areas of weakness. It is currently carrying out a review of its process for the EHC Plan Annual Reviews. Because of that I have not made any service improvement recommendations.

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Action

75. 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 Miss X for the injustice caused to her 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 Miss X £750 to recognise the distress caused to her by the Council’s failings identified in my investigation;
• pay Miss X £100 to recognise her time and trouble when complaining.

The Council will provide the evidence that this has happened.

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Decision

76. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman