Summary: The Council failed to review Mrs M’s son B’s education, health and care (EHC) plan in 2023 and acknowledged that it missed opportunities to check he was receiving suitable education. However, the evidence available suggests it is unlikely there was a need for the Council to have made alternative arrangements for B’s education.

The complaint

1. Mrs M complains the Council failed to review her son B’s education, health and care (EHC) plan in 2023 and failed to arrange alternative education when B was unable to attend school.

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The Ombudsman’s role and powers

2. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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. 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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How I considered this complaint

6. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

7. Mrs M says B’s school attendance has been ‘sporadic’ since July 2022.
8. B’s school held an annual review of his EHC plan in January 2023.
9. Mrs M complained to the Council in January 2024. She complained the Council had not completed the review despite agreeing to amend B’s EHC Plan.
10. Mrs M complained the Council commissioned a report from an educational psychologist but failed to act on its recommendations.
11. Mrs M complained the Council failed to arrange alternative education for B who she said had missed a considerable amount of school due to anxiety.
12. The Council responded on 2 February 2024. The Council explained that it did not receive the paperwork from B’s school following the annual review meeting and did not, therefore, complete the annual review.
13. The Council said it had received a reintegration plan from the school in January 2023 and further evidence of the school’s efforts to meet B’s needs in April 2023. The Council noted the school had recorded most of B’s absences as ‘unauthorised’. The Council said it regretted missed opportunities to ‘chase up’ whether B was attending school, and explained that it now had processes in place to identify children not receiving full-time education.
14. Unhappy with the Council’s response, Mrs M asked the Council to respond at the second stage of the complaints process on 4 July 2024. Mrs M said B had been unable to attend school because the Council had not updated his EHC plan following the January 2023 review. She complained the Council had not provided him with suitable education and asked the Council to provide a remedy for the education he had missed.
15. The Council responded on 31 July 2024. The Council said an annual review meeting was held on 16 April 2024, an amendment notice issued on 3 June 2024, and a draft amended plan sent to Mrs M on 30 July 2024. The Council confirmed it received the educational psychologist’s report on 18 May 2023 and said it had included her recommendations in the amended plan. The Council apologised it had not done this sooner.
16. The Council said it had not been informed B was not receiving suitable education after its last involvement in April 2023. Nevertheless, the Council expressed its regret for the missed opportunities to chase up whether B was accessing full-time education, and apologised for the disruption to his education. The Council explained it now had an officer to monitor children missing education.
17. Mrs M asked the Council to pay the costs of an advocate she had engaged. The Council declined.
18. Unhappy with the Council’s response, Mrs M complained to us on 9 September 2024.

What events have I considered?

19. Complaints to the Ombudsman must be made promptly, and usually within 12 months. Mrs M did not complain to the Council until 12 months after the annual review meeting. She did not ask for the Council to respond at the second stage of its complaints process until five months after she received the stage one response. She did not complain to the Ombudsman until a month after she received the Council’s final response.
20. I do not underestimate the challenges of caring for a child with special educational needs. But these delays make it more difficult for us to investigate complaints. And if our investigations find fault, it is harder to recommend a meaningful remedy for injustice that happened so long ago.
21. I have considered B’s education from January 2023. This is more than 12 months before Mrs M complained to us, but it is a logical place to begin my investigation.

Complaint one: the 2023 annual review

22. The Council is responsible for reviewing a child’s education, health and care plan. It must review plans at least once every twelve months, and sooner if required.
23. The procedure is set out in legislation, regulations and government guidance.
24. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
25. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
26. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
27. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.

Findings

28. The Council did not complete the review of B’s plan it started in January 2023. In fact, the Council did not review B’s plan at all in 2023. The Council did not comply with the legislation and guidance. This is fault.
29. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
30. An annual review is an opportunity to asses a child’s progress, ensure they are receiving suitable special educational provision, and plan for the future. B did not have these opportunities in 2023.
31. Mrs M asked the Council to undertake the review because she was concerned about B’s attendance. The Council agreed and commissioned independent assessments from an educational psychologist and others. The educational psychologist made recommendations. Although the Council says the school could have acted on those recommendations, it was the Council’s responsibility to incorporate them into B’s EHC plan. B did not have these opportunities in 2023. It appears the Council had still not updated B’s plan in July 2024, eighteen months after the early review meeting.
32. I will recommend a remedy for the injustice caused by the Council’s failure to review B’s EHC plan in 2023. My recommendations are at the end of this statement.

Complaint two: alternative education

33. Parents, schools and councils all have responsibilities to ensure children receive a suitable education.
34. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
35. The Education Act 1996 says every council shall “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
36. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2023)
37. The guidance says schools should inform the Council when they can no longer support a child’s health needs.
38. It says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
39. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

Findings

40. Mrs M believes the Council should have arranged alternative education for B when he was too anxious to attend school.
41. The Council’s view, as I understand it, is that the school was making suitable arrangements. The last contact the Council had with the school was in April 2023.
42. It does not appear the school notified the Council it was unable to meet B’s needs. I cannot investigate the actions of the school.
43. The Council expressed its regret for the missed opportunities to chase up whether B was accessing full-time education. However, it does not necessarily follow that the Council would have made alternative arrangements for B’s education if it had. There was a range of options available to the Council depending on its evaluation of B’s needs and the reasons for his non-attendance.
44. In order to assess whether it is likely the Council should have made alternative arrangements for B’s education, I have considered the evidence available.
45. The report of the educational psychologist who assessed B in May 2023 acknowledged that attendance is a problem, but described progress being made by B’s school and the school’s plans for the future. The report does not say that alternative arrangements are needed.
46. On balance, while I acknowledge B was not receiving full-time education, I conclude there was no need for alternative provision for the summer term in 2023.
47. I understand B remained on roll at the school the following year. Evidence from the delayed review of his EHC plan shows that attendance continued to be a problem and the school’s efforts to reintegrate him ultimately proved unsuccessful. Instead, the school (a special school) was providing a bespoke package of education for B at home which included ‘learning boxes’ and a specialist tutor who visited once a week. It appears B was also able to attend school on occasion with one-to-one support. However, the school noted it struggled to maintain this level of support and recommended ‘alternative provision’.
48. I understand the Council agreed to arrange ‘education other than at school’ (EOTAS) for B from September 2024 following the delayed review of his EHC plan.
49. The question for me, then, is whether these changes would have been made sooner if the review of B’s EHC plan had taken place earlier, and whether B would have received different provision.
50. If the Council had reviewed B’s plan following the educational psychology assessment in May 2023, it seems likely the goal would have remained his reintegration to school.
51. We know that reintegration was ultimately unsuccessful and it seems likely that a further review of B’s plan would have been called for given the failure of the reintegration plan. However, it is unlikely this would have been much before January 2024 to allow time for the school to follow the reintegration plan. The Council began a review in January 2024.
52. So, although I acknowledge this was a difficult time for Mrs M and B, and I note B was not receiving full-time education, I think it is unlikely there was a need for the Council to make alternative arrangements in the autumn term of 2023.
53. The Council began a review of B’s EHC plan in January 2024. It should have completed the review by April. However, I understand there was disagreement between Mrs M and the Council about plans for B’s education and Mrs M asked the Council not to issue the plan until agreement was reached.
54. The Council issued a draft plan in July 2024 and proposed ‘education other than at school’ (EOTAS) for B from September 2024. I will not investigate what happened after September 2024 when Mrs M complained to us.
55. Reintegration having proved unsuccessful, B’s school continued to make alternative arrangements for his education for the spring and summer terms of 2024. So, although the Council has taken too long to complete the review, B’s school has continued to provide education. I think it is unlikely, therefore, the was a need for the Council to make alternative arrangements.

Mrs M’s advocate

56. Mrs M complained the Council declined to pay the costs of the advocate she employed to help with her complaint.
57. We do not expect complainants to need a professional advisor to make a complaint to the Council or to us, and we are unlikely to recommend a council pays for representation unless there are exceptional circumstances.
58. There are no grounds for me to recommend the Council pays for Mrs M’s advocate.

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Agreed action

59. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment.
60. Within four weeks of my final decision, I recommended the Council apologises to Mrs M for its failure to review B’s EHC Plan in 2023.
61. We can also make recommendations to ensure similar faults do not happen in the future.
62. Within three months of my final decision, I recommended the Council reviews what went wrong with the 2023 review of B’s EHC Plan and writes to tell us what changes it will make to ensure similar problems do not occur in the future.
63. The Council accepted my recommendations.

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Decision

64. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman