Summary: There was fault by the Council. The Council failed to monitor a child who was on a personalized learning plan to return to school. This meant the Council did not consider whether the provisions in Section F of the Education, Health and Care plan were in place and caused distress and uncertainty to Miss X. There was also a failure to consider whether the provisions were put in place for two terms while the Council consulted with specialist schools. An apology, symbolic payment and review of procedures remedies the injustice to Miss X and her child, Y.

The complaint

1. The complainant, Miss X, complains the Council failed to provide education for her child, Y, who was out of school for 15 months.
2. Miss X says the Council failed to provide the contents of section F of the Education, Health and Care (EHC) Plan from April 2023 until July 2024. And, the Council delayed Y’s transition to school once a placement had been agreed.
3. Miss X says that Y missed out on education and has affected the family mentally, emotionally and financially.

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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. 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(1), 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. 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)
8. Miss X complained to the Council in November 2024. I have exercised discretion to start looking at the complaint further back than 12 months, from April 2023. This is because this is when Y was first out of school and there are sufficient records to determine what has happened.
9. I have investigated the non-provision of Section F and the failure to provide alternative provision from 27 April 2023 until 13 June 2023 when the EHC Plan was issued and Miss X had a right of appeal.
10. 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) 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.
11. 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.
12. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right or who chooses to attend mediation, as Miss X did.
13. From 13 June 2023 until the action plan from the mediation session was completed is out of Ombudsman’s jurisdiction as it relates directly to the disagreement about the educational placement in the EHC Plan. From the information I have, the action plan was completed on 18 December 2023 when a new EHC Plan was issued. This gave Miss X a new right of appeal to the SEND tribunal, which would normally prevent us from investigating from this point onwards.
14. However, from 10 January 2024 the Council issued a new draft EHC Plan and agreed to name a specialist school. So, it would not have been reasonable to expect Miss X to appeal at that point. So, I have investigated events from 10 January 2024 until July 2024 when Y started at the specialist school.

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How I considered this complaint

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

17. 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. 
18. 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)  
19. 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. 

20. Y started mainstream secondary school in September 2022.
21. There was an annual review of the EHC Plan on 27 April 2023 which referred to Y being on a part-time timetable. The Council said that it became aware that Y was no longer attending school on 30 May 2023. The Council issued a final EHC Plan on 13 June 2023, this named Y’s existing school.
22. Miss X applied for mediation, to challenge the contents and setting in the EHC Plan. The mediation was on 24 July 2023 and the Council agreed to a number of steps which would review the EHC Plan.
23. A new EHC Plan was issued on 18 December 2023 which named the mainstream school.
24. The Council issued a further draft EHC Plan on 10 January 2024 and the Council consulted with specialist schools over the next 2 months. On 30 April 2024 the Council issued a new EHC Plan naming Miss X’s preferred specialist school.
25. Y started at the specialist school in July 2024.

27 April until 13 June 2023

26. At the annual review on 27 April 2023 it was noted that Y was not attending school. The review said ‘the Education Welfare Officer, school and parents are in agreement that a Personalized Learning Plan is to be put in place. We are suggesting an hour a day to be reviewed every two weeks, starting 2 May 2023’. So, at this point the plan was for Y to return to school.
27. I cannot see any evidence that the plan was reviewed by the Council after the two weeks and Miss X told the Council on 30 May 2023 that Y was not attending school and asked for alternative provision.
28. The failure to keep the part time timetable under review as noted in the annual review was fault. It is not possible to know for sure if this would have resulted in some of the provision in Section F of the EHC Plan being delivered while Y was out of school for this time period. But without evidence the Council reviewed the matter at this time, I consider it should remedy the distress and uncertainty that was caused to Miss X with a symbolic payment of £250.

10 January to July 2024

29. Miss X told the Council of her preferred schools on 23 January 2024. Consultations were sent in February and March 2024. The EHC Plan was finalised in April 2024 and Y started at the school in July 2024.
30. I can see no evidence that the Council considered how to provide the provisions in Section F of the EHC Plan from 10 January until July 2024 when Y started at school. He received no education during this time. This was fault.
31. To remedy the injustice from this fault our guidance on remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should be based on the impact on the child and take account of factors such as the severity of the child’s SEN as set out in their EHC Plan and if any educational provision, without some or all of the specified support was made during the period. The symbolic payment of £900 - £2,400 per term is intended to remedy injustice caused to the child from missing provision, as well as the normal range of consequential injustice also caused to the family due to  this fault, for example; where there is significant additional caring responsibilities that occur from a child being out of education, and avoidable disruption to daily routine.
32. The Council should make a symbolic payment to Miss X to remedy the injustice to her and Y at the top of the scale, of £2400 for the spring term and £2000 for the summer term (as education was provided in July).

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Action

33. Within one month of the date of the decision on this complaint the Council should.
• Apologise to Miss X. 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 Miss X £4650.
• Arrange for a senior officer to complete an audit of this case from April 23- July 24 to identify how the faults occurred. The audit should also include details of any actions the Council will take to reduce the risk of recurrence.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman