The Ombudsman's final decision
Summary: Ms X complains about the lack of educational and special educational provision her daughter received and about the lack of annual reviews since her daughter started having an Education, Health and Care plan. The Council was at fault for the way it reviewed the Education, Health and Care plan in July 2021 and for the level of provision it provided Ms X’s daughter from October 2020. The Council agreed to apologise to Ms Y, make a payment for the benefit of Y’s education and have a meeting with Ms X to discuss concerns she has about Y’s education.
The complaint
Ms X complains about the way in which the Council dealt with her daughter’s Education, Health and Care plan. This includes: Failing to carry out an Annual Review of the Education, Health and Care plan for three years after issuing it in 2016.
Failing to provide a decision following an Annual Review of the Education, Health and Care plan in July 2021.
Not providing her daughter with suitable education and the Special Educational Needs (SEN) provision listed in her Education, Health and Care plan since 2016.
As a result, she says her daughter has missed out on education and support.
What I have investigated I have only investigated complaints B) and C). I have only investigated complaint C) from October 2020 onwards. I have set out later in this statement the reasons for this.
The Ombudsman’s role and powers
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) 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) We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) 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)
How I considered this complaint
As part of this investigation, I considered the complaint made by Ms X and the information she provided. I discussed the complaint with Ms X over the telephone. I made enquiries with the Council and considered the response received.
I sent a draft of this decision to the Council and Ms X and considered comments received in response.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Education, Health and Care plans A child with special educational needs 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a 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) The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
Alternative provision 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.
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) Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
Councils must “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)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) What happened Ms X’s daughter Y suffers with social, emotional and mental health issues, hypermobility and anxiety. She also has a sensory processing disorder and attachment disorder.
In September 2016, the Council issued an EHC plan for Y. Y attended School 1, a specialist school. Shortly after the Council issued the plan Y stopped attending School 1. The Council provided some home tutoring to Y at this time. In September 2018 the Council received a medical opinion from CAMHS which indicated they would support re-integration of Y into another setting.
In October 2019 the Council carried out an Annual Review of Y’s EHC plan. The Council sent the final amended EHC plan to Ms X in February 2020. Ms X disagreed with the content of the plan so took part in mediation with the Council in April 2021. This discussed sections, B, F and I of the EHC plan. Following on from the mediation the Council issued a new final EHC plan in May 2021. Ms X again disagreed with the content of this plan so appealed to the SEND Tribunal.
In October 2020, Ms X and the Council agreed through a consent order that the Council would issue a new EHC plan for Y. At this time Y also moved to School 2, a specialist school.
At the end of October 2020, the Council issued a new EHC plan for Y following the consent order provided to the SEND Tribunal. This specified most of the provision would be provided by School 2 and a Speech and Language Therapist. There was no mention in the EHC plan that Y was not attending School 2 or concerns about Y being fit to attend school.
Ms X said Y was due to start at School 2 in September 2020 but had not been able to attend due to her anxiety and medical conditions. Ms X said School 2 sent some worksheets to Y at home but she had not received any other provision.
In July 2021, the Council held an Annual Review meeting of Y’s EHC plan. Ms X attended along with a representative for the family. The notes from the meeting show the Council accepted Y was not attending school. The Council said the meeting was stopped as Ms X’s representative wanted to discuss past issues involving the SEND Tribunal. The Council said it agreed to hold the Annual Review later in 2021.
Following this meeting Ms X’s representative made a formal complaint about how the Council conducted the meeting. The Council responded to this in July 2021.
In August 2021, the Council received confirmation from CAMHS that Y was not fit to attend school. The Council said it explored alternative tutoring options for Y but encountered difficulties with this due to Covid 19 restrictions and Y’s family wanting to speak with CAMHS about any plan to provide tutoring.
In October 2021, Ms X’s representative complained to the Council as Ms X had not received a decision following the Annual Review in July 2021. Ms X’s representative asked the Council to provide Ms X with a decision.
The Council said it passed this complaint onto the relevant service to deal with, however it has no record of a response being sent to Ms X. The Council held another review meeting in November 2021 and issued a new EHC plan for Y in December 2021.
Ms X remained dissatisfied and complained to the Ombudsman. Ms X said Y had not attended school since 2016 and had not received adequate education during this time. Ms X also said the Council had not kept Y’s EHC plan under review. As a result, Ms X said Y had been forgotten about and fallen behind with her education.
Analysis Complaint a) The Council failed to carry out an annual review of Y’s EHC plan for three years after issuing it in 2016.
I have not investigated this complaint as too much time has passed. We cannot normally investigate a complaint where it takes over 12 months for someone to complain to us, unless there are good reasons. In this case I consider Ms X could have complained to us sooner. She was receiving assistance from an advocate and I see no reason why she could not have complained sooner to us if the Council had not completed an Annual Review.
Complaint b) The Council failed to provide a decision following an Annual Review of Y’s EHC plan in July 2021.
The Council was at fault for not completing the review. The Council’s position was that Ms X and her representative wanted to speak about previous matters at the review meeting in July 2021 and they agreed to reschedule this later in the year. Ms X disputed this position and said she wanted support for Y going forward.
Given that the Annual Review notes showed the Council knew Y was not attending school, and had not accessed tutoring since her last tutor passed away in 2019, it would have been appropriate to complete the review and not postpone this further.
The Council did complete the Annual Review in November 2021, some four months later. As Y was not receiving tutoring or attending school at this time I do not see why it was appropriate to postpone the Annual Review for a further four months. This was fault.
The Council also did not respond to Ms X’s complaint about this in October 2021. This is also fault.
As a result, Y waited longer to have her EHC plan reviewed and amended.
Complaint c) The Council did not provide Y with suitable education and the SEN provision listed in her EHC plan since 2016.
I have only considered this complaint from October 2020 to the end of 2021. This was after the SEND Tribunal finished. We cannot investigate whether Y received adequate provision during the time the SEND Tribunal considered the case. Prior to this, from 2016 to early 2020, I consider too much time has elapsed and Ms X could have complained to us sooner if she believed Y was not receiving appropriate education during this period.
From October 2020, Y was enrolled at School 2, however she did not attend. It is not clear what, if any provision was provided to Y at this time or through the academic year. Y did receive tutoring previously but this ended in 2019 when her tutor passed away. Ms X said School 2 sent some worksheets home to Y to complete but I do not have any evidence that the Council provided any educational provision. Nor have I seen evidence that any support was put in place to attempt to assist Y to transition back to school. I am also satisfied Y did not receive the provision set out in her EHC plan.
In October 2020 the Council did not have an up to date medical opinion about Y’s ability to attend school or whether she could cope with full time or part time education. The last medical option the Council received was in September 2018 when CAMHS recommended re-integration to another setting. As a result, it was not clear what support or education Y needed.
As I have found the Council at fault I need to consider what injustice this has caused. The obvious injustice is Y has fallen behind with her education and has not received the support to help make progress or re-integrate back to school or another setting.
Where fault has resulted in a loss of educational provision, we will usually recommend a financial remedy to acknowledge the impact of that loss. In coming to a suitable figure, I have considered that Y has special educational needs, only received minimal provision and was at a critical age in education. I have also considered the Council did explore tutoring options after August 2021 but faced difficulties in rolling this out due to Covid 19 restrictions and Ms X’s reluctance to engage with the Council before speaking to CAMHS.
In addition, Ms X said she currently does not know what support Y should be receiving and considered she is still not receiving adequate educational provision.
Agreed action
Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so: Apologise to Ms X for the faults identified.
Pay Ms X £3,600 for the benefit of Y’s education and in recognition of the lost provision and SEN provision between October 2020 and December 2021. In coming to this figure, I have considered the Ombudsman’s guidance on remedies.
Arrange to have a meeting with Ms X to discuss concerns she has about Y’s education. The Council should also consider whether Y is receiving adequate education and whether there is anything further which could be put in place for Y.
Final decision
I have completed my investigation and found the Council was at fault which caused injustice. The Council has agreed to carry out the above actions to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman