Summary: Mrs X complained the Council failed to ensure her children D and P received the special educational needs provision in their Education, Health, and Care Plans. D and P did not receive all the provision in their Plans and the Council failed to properly investigate when Mrs X raised concerns about this. This meant D and P missed provision, and caused distress to D, P, and their parents. The Council agreed to apologise, pay a financial remedy, and issue reminders to its staff.

The complaint

1. Mrs X complains the Council failed to ensure her children D and P received the special educational needs (SEN) provision in their Education, Health, and Care (EHC) Plans, from November 2023 onwards. It also failed to properly investigate and respond when she raised concerns the provision was not in place.
2. Because of this Mrs X says D and P missed SEN provision, stopped attending their final year of primary school in May 2024 for seven weeks, and fell behind with their education. This also caused distress to D, P, and their parents.
3. Mrs X wants the Council to:
• ensure the EHC Plan provision is in place without delay, as this is still not in place since D and P started secondary school in September 2024;
• provide D and P access to suitable counselling or therapy to address the mental health impact this had; and
• review its failings in this case to improve its services.

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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. 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 complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. 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.
8. 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)

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council, and relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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 found

Legislation and guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
13. 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)  

Alternative education while out of school

14. 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.
15. 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)
16. 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))
17. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

18. Mrs X has two children, D and P, who both have EHC Plans. D and P both started year 6 at the same primary school in September 2023.
19. In late-November 2023, the Council issued amended EHC Plans for D and P. Mrs X began raising concerns with both the school and the Council in November/December 2023 that the school was not delivering the SEN provision outlined in the Plans.
20. In April 2024, Mrs X still had concerns so complained to the Council. She said she did not consider D and P should return to school following the Easter break without the proper support being in place. She asked the Council to arrange transfer to a new school placement which could deliver the Plans, and suitable alternative education while it identified a new placement.
21. Both D and P stopped attending school at the start of May 2024. Mrs X wrote to the Council again asking it to arrange alternative education. She said D and P could not attend school due to their mental health.
22. In June 2024 the Council issued responses to Mrs X’s complaint at Stage 1 and Stage 2 of its complaints procedure. It said it had spoken with the school and was satisfied the SEN provision from D and P’s EHC Plans was in place.
23. In mid-June 2024, the children returned to school on a gradually increasing timetable, and attended for the last few weeks of the school year. Mrs X continued to escalate her complaint because she did not consider the Council had properly investigated whether D and P had received the SEN provision. She said the Council had relied on verbal confirmation from the school instead of seeking proper evidence of delivery.
24. In July 2024, the school held annual review meetings for both D and P’s EHC Plans. This was at the request of the Council following Mrs X’s complaint.
25. In August 2024 the Council issued its final response to Mrs X’s complaint. It kept its position that the school had delivered both EHC Plans, but said it accepted there could have been better communication with Mrs X to properly assure her of this.
26. In September 2024, Mrs X brought her complaint to the Ombudsman. D and P then started year 7 at a new secondary school placement. The EHC Plan reviews that had begun in July 2024 were still ongoing.

What I have and have not investigated

27. Mrs X says the Council delayed in completing the annual reviews it started in July 2024. She made a new complaint to the Council about this in September 2024, after she brought this complaint to the Ombudsman. I have not considered this as part of my investigation because the Council had not yet had opportunity to respond to Mrs X about this issue when she brought this complaint to us. If Mrs X is dissatisfied with the Council’s response to this later complaint, she can make a new complaint to us to ask us to consider it.
28. Mrs X also says D and P are still not receiving the SEN provision outlined in their EHC Plans since they started secondary school in September 2024. Again, this is not something I can include in my investigation because it is a new issue which arose after Mrs X came to us, when the children started attending a new placement. She would need to make a new complaint to the Council about any failure to deliver the Plans in the 2024/25 school year. She could then make a new complaint to us if she is dissatisfied with the Council’s response.

My findings

Delivery of EHC Plans

29. The November 2023 EHC Plans set out the SEN provision D and P should receive.
30. In reaching a view about what provision D and P received, I considered:
• comments and evidence Mrs X provided to the Council when she first complained in April 2024. This included documentation she had received from the school about what had been in place; and
• the Council’s May 2024 Stage 1 complaint response which described conversations it had with the school about what had been in place. In response to my enquiries the Council confirmed it had no records of these conversations other than the complaint response, and no other evidence of what was delivered to D and P.
31. I decided that although D and P received some SEN provision from their EHC Plans, they did not receive all the support required, as outlined in the Plan.
32. D missed key interventions, examples of which are outlined in the table below.

33. P missed key interventions, examples of which are outlined in the table below.

34. The Council did not meet its duty to secure all the provision set out in D and P’s November 2023 EHC Plans. This was fault.
35. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
36. I consider the Council at fault because:
• it failed to check provision was in place after it issued new EHC Plans for D and P;
• once Mrs X raised concerns in November/December 2023 that provision was not in place, it did not properly investigate this. In a January 2024 email to Mrs X, the Council confirmed the school should be delivering all provision in the Plan, but told her “the setting is responsible for how they implement this”. It failed to recognise this non-delegable duty lay with the Council, and it should properly investigate Mrs X’s concerns; and
• once Mrs X raised a formal complaint in April 2024, it still did not properly investigate this. The Council reported in its complaint response a conversation it had with the school. However, it did not properly record this conversation, or adequately seek to verify the school’s claims, given Mrs X had provided school documentation which contradicted that support had been in place.
37. This fault by the Council meant D and P missed provision they were entitled to. The Council should remedy the injustice caused by the approximately two terms of SEN provision missed after the EHC Plans were issued in November 2023, to the end of the school year in July 2024.
38. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
39. In deciding an appropriate financial payment to recognise the impact of D and P’s missed SEN provision, I considered the following.
• During this period, D and P were in their final year of primary school. Our guidance on remedies says we consider this year before the transfer to secondary school to be one of the more significant periods in a child’s school career.
• D and P both had some support in place but missed key interventions. Mrs X said the lack of support with social and emotional skills had a significant impact on D and P’s wellbeing and contributed to them being unable to attend school due to their mental health.
40. The Council should provide a financial remedy of £600 per term for each child, for missed SEN provision.

Alternative education while out of school

41. The Council knew D and P had been out of school for 15 days or more, after Mrs X raised this in May 2024. From the point it was aware, the Council should have considered its duty to arrange suitable alternative education under section 19 of The Education Act 1996.
42. In its June 2024 Stage 2 response to Mrs X’s complaint, the Council said it was in contact with the school to discuss short-term alternative provision while D and P were out of school. It said it expected the school to arrange a minimum of 15 hours per week of alternative education. However, the following day it then told the school it did not need to arrange this if it was satisfied it could accommodate the children’s health needs within school.
43. The Council may delegate the arranging of alternative education to the school, but the law says the duty to provide this lies with the Council. It should therefore keep proper oversight to assure itself suitable education is in place and properly investigate when a family raises concerns that it is not.
44. The Council did not properly consider its section 19 duty and form its own view about whether the duty applied in this case, and so whether it should provide alternative education. This was fault. Also, as I have found the Council did not properly investigate Mrs X’s concerns about EHC Plan provision, I must conclude it did not properly consider whether the education available was suitable for D and P’s SEN.
45. I cannot make a decision in the Council’s place about whether there was suitable education available which was “reasonably practicable” for the children to access. I can only conclude there remains uncertainty about this, and about whether they would have received alternative education while out of school if the Council had properly considered its section 19 duty. The Council should provide a remedy for the distress caused by this remaining uncertainty.

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Action

46. Within one month of our final decision the Council will:
1. apologise to Mrs X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology;
2. pay the family a total of £3,300, comprising of:
1. £1,200 to recognise the SEN support D missed;
2. £1,200 to recognise the SEN support P missed;
3. £400 to recognise the uncertainty that remains about whether D and P may have received alternative education for the weeks they did not attend if the Council had properly considered its section 19 duty;
4. £300 to recognise the avoidable distress caused to D and P’s parents by the Council’s failings; and
5. £200 to recognise the avoidable distress to D and P.
3. issue reminders to relevant staff about:
1. the Council’s non-delegable duty under section 42 of the Children and Families Act to ensure a child with an EHC Plan receives the SEN provision in their Plan. It will remind staff the Council remains liable where a school fails to deliver provision, and that it should properly investigate when concerns are raised that provision is not in place, and record any evidence about this; and
2. the Council’s duty under section 19 of the Education Act 1996 to provide suitable alternative education when a child is out of school. It will remind staff the Council needs to properly consider whether the section 19 duty applies and record this consideration, and that the Council must make this decision, not the school.
47. The Council will provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to my recommended actions to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman