Summary: Ms X complained the Council did not provide an appropriate remedy when it accepted it delayed completing an annual review of her son, Y’s, Education Health and Care (EHC) Plan and failed to provide his educational provision for one academic year. The Council did not provide an appropriate remedy for the year of education and special educational provision Y did not receive. The Council will pay Ms X £2,450 to recognise the injustice caused to Y.

The complaint

1. Ms X complained the Council failed to provide her son with an education since 2021 or the provision in his Education, Health and Care (EHC) Plan since it was issued in 2022. Ms X further complained the Council did not provide an appropriate remedy when it upheld her complaint about a delay in completing an annual review of Y’s EHC Plan and failing to provide his educational provision for one academic year. Ms X wanted the Council to accept it had failed to provide Y an education since 2021 and provide an appropriate remedy.

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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 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)
3. 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, section 26B, as amended)
4. 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.
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. 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

7. I have not investigated what happened before September 2023. Ms X first complained to the Council about matters from 2021 and 2022 in April 2024 and complained to us in September 2024. The complaint about what happened prior to September 2023 is a late complaint, as set out in paragraph three, and there is no good reason to investigate those matters now.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.

Reviews

11. 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 then take place. 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) 
12. Where the council proposes to amend an EHC Plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Provision

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

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. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

Background information

16. Y lives at home with his mother Ms X. At the time of the events in this investigation Y should have been in year 10 at secondary school. Y has a genetic condition which means he has special educational needs.
17. In 2022 the Council issued an EHC Plan for Y that set out his needs, what support he required and the school he should attend. The Council said it consulted a number of special schools for a placement for Y but none offered a place. It named the school Y was on roll at (School 1) as the school Y should attend. School 1 told the Council at that time that it could not meet Y’s needs.

Matters subject to investigation

18. School 1 held an annual review of Y’s EHC Plan in October 2023. School 1 told the Council Y was now not accessing education due to anxiety and it had referred him for some mentoring which it felt Y would need before he was able to access an alternative provision.
19. Four weeks later the Council issued a draft amended EHC Plan for Y and consulted six special schools for a placement for Y. The Council said the six schools either did not respond or could not offer a place.
20. In January 2024 School 1 asked the Council for an update on Y’s Plan and said he was not accessing education and Ms X had not engaged with the mentoring being offered. The Council suggested the school got advice from the attendance team and the Educational Psychologist (EP).
21. School 1 held a meeting with Ms X in March. It discussed the mentoring and Ms X said she would engage with the service. She said Y did not leave the house without her unless he was going to a family member’s house. The Council did not attend the meeting.
22. Ms X complained to the Council at the end of April. She said Y had struggled to attend school since September 2022 and had not received an education for the last couple of years.
23. The Council responded to Ms X’s complaint in May and upheld it. It said its communication with Ms X about Y’s EHC Plan and placement had been poor and apologised. It said it had not issued a final amended EHC Plan following the annual review in October 2023 but it would do so as soon as possible. It accepted it had delayed in finding a suitable school place for Y and it should have done more to support Y in identifying a school place. The Council said it had been supporting School 1 via its inclusion service, but Ms X may not have known that. It said it would consult five more schools after which it would discuss the case at its specialist placement panel. It said it expected School 1, which was still named on the EHC Plan, to arrange alternative provision for Y rather than the Council.
24. Ms X asked the Council to consider her complaint further in May 2024. She said it failed to consider the impact of the lack of education on Y. She said he was isolated, which affected his mental health and had missed out on education and social opportunities.
25. The Council referred Y to the mentoring service again in May and asked it to contact Ms X.
26. At the beginning of June the Council issued an amended Final EHC Plan for Y. The Plan continued to name School 1 as the school Y should attend. It recorded that Y was four years behind in some areas of his learning which had increased because he had not been able to attend school. It stated Y needed to be taught in small groups or individually in a small classroom environment.
27. The Council told Ms X that it upheld her complaint in August 2024. It accepted it had delayed Ms X’s appeal rights to the SEND Tribunal as it did not issue an amended Plan until June 2024. It accepted it knew in September 2023 that Y was unable to attend school due to anxiety. The Council told Ms X it had not yet received responses to the consultations it said it would send in May and so it would not consider a new placement for Y until the Autumn term at which time it would be discussed at the specialist placement panel. The Council apologised for its failure to ensure Y had access to a suitable full-time education, and for the delay in issuing the final EHC Plan following the annual review. It offered a payment of £450 per term between September 2023 and July 2024 for the provision Y missed. The Council said it paid Ms X £1,350.
28. Dissatisfied with the Council’s remedy, Ms X complained to us.
29. Ms X said that Y would not engage with the mentor due to his anxiety, because the mentor was a stranger and he would have to leave the house and meet them in a public place. Ms X said she asked School 1 if Y could receive some tuition at home instead but School 1 did not offer it.

My findings

30. The Council has already accepted the following faults and injustice:
• Failure to complete the annual review, delaying Ms X’s appeal rights to the SEND Tribunal.
• Failure to ensure Y had access to a suitable full-time education between September 2023 and July 2024 which meant Y missed an academic year of provision.
• Its poor communication with Ms X.
31. Further investigation on those points would not lead to a different outcome and so I have not considered them further. I have considered if the Council has properly considered and remedied the injustice caused to Ms X and Y.
32. The Council accepted it did not ensure Y had access to a suitable education for one academic year. It consulted a number of specialist placements but could not identify a placement that would admit Y and said it would consider Y’s case at a specialist placement panel. On a balance of probabilities it therefore considered that Y need to attend a special school. The only alternative provision that was offered was the mentoring suggested by School 1. Ms X said she explained the reason the alternative provision was not suitable for Y. Although School 1 said Y could not access alternative provision without mentoring there is no evidence the Council considered this at the time, or that either the school or the Council considered Ms X’s representations of why it was not suitable.
33. Without a suitable education Y could also not receive the special educational provision set out in his EHC Plan. So Y did not receive any education in line with the Council’s section 19 alternative provision duty (paragraph 14), or any special educational provision in line with the Council’s Section 42 duty (paragraph 13) for that year. I cannot say, even on a balance of probabilities, had the Council acted without fault and provided an appropriate education Y would have been able to access full-time immediately given his anxiety, however it is likely he would have been able to access some education and specialist educational provision and reintegrate to education over time. The Council has already made a financial payment of £1,350 to remedy the provision Y missed, which is insufficient. It is not in line with our guidance on remedies and does not take in to account the fact Y was in a crucial stage of his education. I have made an appropriate recommendation below.
34. The Council accepted it delayed Ms X’s appeal rights to the SEND Tribunal when it delayed issuing the amended final EHC Plan after the annual review, and that its communication with her was poor. The Council should have issued the final amended Plan by mid-January 2024 but did not do so until June 2024 which is a delay of four and a half months. The Council did not consider the frustration the delay and poor communication caused to Ms X. I have made an appropriate recommendation below.
35. The Council has already apologised to Ms X for the faults and injustice it has identified, and so I have not recommended it apologises again.

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Action

36. Within one month of this decision the Council will:
1. Pay Ms X an additional £2,250 (£3,600 in total) for the three terms of education and specialist educational provision Y missed. Ms X should use this for Y’s educational benefit as she sees fit.
2. Pay Ms X £200 to recognise the frustration she was caused by the Council’s delay and poor communication.
3. Remind relevant staff of the Council’s non-delegable duty to secure the specialist provision in a child’s EHC Plan.
4. Remind relevant staff that while it can arrange for a school to organise section 19 alternative provision on its behalf, the Council remains responsible and should retain oversight and control where a child is unable to attend school.
37. The Council will provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman