Summary: Ms X complained on behalf of Mr and Mrs Y. Mr and Mrs Y complained the Council failed to provide their grandson, Z, with a suitable education since September 2023. They also complained the Council failed to reassess Z’s need and issue an appealable decision. Mr and Mrs Y also complained the Council failed to ensure Z received the provision in his Education, Health and Care (EHC) Plan. They also complained about issues with how the school handled Z’s behaviours. Mr and Mrs Y said this distressed Z and his family, and he missed out on education and EHC Plan provision. There was fault in the way the Council delayed completing the reassessment of Z’s needs, did not ensure Z received education and plan provision and complaint handling was poor. This frustrated and distressed Mr and Mrs Y and Z missed education and plan provision. The Council has agreed to apologise, make a financial payment and issue guidance to its staff.

The complaint

1. Ms X complained on behalf of Mr and Mrs Y. Mr and Mrs Y complained the Council failed to provide their grandson, Z, with a suitable education since September 2023. They also complained the Council failed to reassess Z’s need and issue an appealable decision. Mr and Mrs Y also complained the Council failed to ensure Z received the provision in his Education, Health and Care (EHC) Plan. They also complained about issues with how the school handled Z’s behaviours. Mr and Mrs Y said this distressed Z and his family, and he missed out on education and EHC Plan provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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. 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.
5. 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)
6. I have investigated Mr and Mrs Y’s complaint about the Council’s actions since November 2023. I have not investigated earlier events as Mr and Mrs Y could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

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What I have and have not investigated

7. I have investigated Ms X’s complaint about the Council actions.
8. I have not investigated any reference to the schools dealings with Z. This is because the Ombudsman does not have jurisdiction over schools actions.

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How I considered this complaint

9. I read Ms X’s complaint and spoke to her about it on the phone.
10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms 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

Background information

12. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
13. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
14. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
15. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
16. 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)  
17. 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 their legal duty. At a minimum we expect them 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. 

18. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

19. 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)
20. 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.
21. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
23. 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.
24. 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)
25. 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)
26. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
27. The Council complaint policy says the Council would acknowledge complaints within three working days. It says it would respond to stage one complaints within 10 working days and stage two complaints within 20 working days.

What happened

28. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
29. The Council issued Z’s EHC Plan in September 2022. Z lived with his father and started attending school B in September 2023.
30. Z moved in with his mother in January 2024.
31. School B excluded Z for 20 days in February 2024. Z moved in with his grandparents, Mr and Mrs Y, a week later.
32. Mr and Mrs Y’s MP contacted the Council in early March 2024 asking it to consider Z’s case as he was not in school.
33. Mr Y confirmed Z was not in school in mid-March 2024 and wanted Z to attend the local school, school C. The Council advised it would consult with school C. Ms X contacted the school and asked it to provide Z with alternative provision the following day. Ms X contacted the Council and asked it to complete a reassessment of Z’s needs for a new EHC Plan.
34. The Council consulted with school C in April 2024. School C responded four days later saying it could not offer a place at this time.
35. Ms X complained to the Council in April 2024. She complained the Council failed to provide education and EHC Plan provision. Ms X said Z went from a part time placement to a full-time placement in a new school. Ms X noted a mentoring provider was involved but did not have information on how school B adapted to suit Z.
36. School B held the EHC Plan review meeting at the end of April 2024. The meeting discussed interim provision and Z stated he wanted to learn English and Maths. The school noted the EHC Plan needed changes. It also confirmed the Council should consider a reassessment of Z’s needs.
37. The Council agreed to complete a reassessment of Z’s needs in May 2024.
38. The Council wrote to Ms X in May 2024. It confirmed it discussed most of the concerns she raised in the complaint at the review meeting. The Council said school B was responsible for Z’s alternative provision as he was on roll at the school.
39. Ms X asked the Council to escalate her complaint to stage two at the end of May 2024. She said Z had not received education since January 2024 and the work school B sent was not accessible for Z.
40. In June 2024, the Council agreed to provide tutoring for Maths and English, totalling 10 hours per week.
41. The Council sourced a tuition provider in July 2024 and the tutors started to work with Z.
42. The Council agreed to consult with a non-mainstream setting in August 2024. The Council referred to several educational settings. All reported they could not offer Z education. The Council referred Z to the mentoring service school B used.
43. The mentoring service confirmed it could support Z in September 2024 and started the support.
44. The Council issued its stage two complaint response in October 2024. The Council said it understood Mr and Mrs Y sourced tuition and asked school B to pay for this. The Council confirmed it sourced the tuition in July 2024 and mentoring support to meet the provision in the EHC Plan from September 2024. The Council stated interim alternative provision was in place but noted the delays in the EHC Plan. The Council apologised for the delays and offered Mr and Mrs Y £500 for the frustration and distress this caused.
45. Mr and Mrs Y cancelled the mentoring sessions in October 2024.
46. The Council issued the final EHC Plan at the end of October 2024. The Council named school B again.
47. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to apologise, follow the statutory process and make a financial payment.
48. In response to my enquiries the Council accepted it delayed issuing the final plan, but this was because of issues finding a school for Z. The Council confirmed it provided tutors from July 2024 and mentoring support from September 2024. The Council acknowledged it should have put in place tuition sooner.

My findings

EHC needs reassessment delays

49. Paragraphs 13 to 15 set out the timescales the Council must follow when completing a reassessment of a child’s needs.
50. I note Ms X asked the Council to complete a reassessment, but the family then agreed to the review of the EHC Plan. As the Council started the process before the family agreed this, I have applied the reassessment timescales in this case.
51. The Council had 15 days to confirm if it would complete a reassessment. The Council took eight weeks, a five-week delay. This is fault, frustrating Mr and Mrs Y.
52. The Council then had 14 weeks to complete the reassessment. It should have issued the EHC Plan by August 2024. It issued the plan in October 2024, a two-month delay. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This delay frustrated Mr and Mrs Y’s appeal right to the Tribunal.

Missed education and EHC Plan provision

53. Councils 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”. The Council also has a duty to ensure Z received the provision in the EHC Plan.
54. The Council said school B was responsible for providing education for Z. While this is correct, when the Council is aware a child is not receiving education, it must ensure the child receives education. The evidence shows the Council first became aware Z was not attending school in March 2024. There is no evidence the Council considered its responsibilities to ensure Z received education and plan provision when it became aware he was not in school. There is no evidence the Council considered the “acid test” if any education was accessible for Z. The Council must consider if it needed to provide Z with education or plan provision. It did not. This is fault.
55. The Council accepted in its response to my enquiries, it should have put alternative provision in place sooner. The Council had 15 days to put in place education from when it became aware Z was out of school. It should have put in place education from the end of March 2024. It did not put in place tuition until July 2024, a three-month delay, one academic term. This is fault and Z missed education during this time.
56. The Council had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act). The Council must ensure a child receives the provision in their plan. The Council did not put in place plan provision through the mentoring service until September 2024. This is fault and Z missed plan provision for one academic term.
57. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
58. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because 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.
59. The Council issued the final EHC Plan in October 2024, giving an appeal right. Once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the Tribunal.

Complaint handling

60. The Council policy allows for the Council to acknowledge a complaint and respond. Stage one should take 13 days. The Council took 23 days, a two-week delay. This is fault. The Council response did not offer Ms X any escalation to stage two. This is not in line with the Council policy. The policy confirms “we will let you know what you can do if you are not happy with the stage one response”. It did not do this. This is fault, frustrating Ms X and Mr and Mrs Y.
61. The Council policy allows 23 days to respond to a stage two complaint. The Council took over four months to respond. A delay of three months. This is fault, frustrating Ms X and Mr and Mrs Y.
62. The Council offered Mr and Mrs Y £500 to acknowledge the distress and frustration its fault caused. This included complaint handling and delays in the EHC needs assessment. This is a suitable offer to remedy the injustice caused by the Council fault.

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Agreed action

63. To remedy the outstanding injustice caused to Mr and Mrs Y and Z by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr and Mrs Y for the injustice caused by not completing the EHC needs assessment within timescales, not ensuring Z received education and plan provision and not following its complaint process. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr and Mrs Y the £500 it offered as an acknowledgement of the distress and frustration the Council fault caused.
• Pay Mr and Mrs Y £900 for not ensuring Z received education and plan provision for one academic term. This money should be used for Z’s benefit.
• Remind relevant staff of the importance of effective complaint handling, adhering to timescales and ensuring a complainant is offered the option to escalate their complaint.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr and Mrs Y and Z.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman