The Ombudsman's final decision
Summary: there was a delay making suitable arrangements for Ms M’s son, B’s education and amending his Education, Health and Care (EHC) plan. I have recommended a symbolic remedy. Since making her complaint to the Ombudsman, Ms M said the Council had still not issued B’s EHC Plan and he remained out of school. If it has not already done so, the Council should issue B’s EHC Plan and arrange suitable, full-time education for him – following all relevant guidance and procedures – without further delay. Ms M can make a new complaint if she remains dissatisfied with the Council’s actions since her first complaint to us.
The complaint
Ms M complained about the education her son, B, missed between 15 June 2021 and 3 March 2022.
Ms M says B missed out on free school meals which has caused financial hardship.
She complained about delay by the Council arranging an emergency review of B’s Education, Health and Care (EHC) Plan.
Since making her complaint, Ms M says B has still not returned to school. She says he had six hours of provision a week between March and July 2022 and the provision has now ended.
What I have investigated I have investigated events up to March 2022 when Ms M complained to the Ombudsman. I have not investigated what has happened since then as the Council has not had an opportunity to respond first.
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) The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5)) Once 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
I have considered: information provided by Ms M; information provided by the Council.
I invited Ms M and the Council to comment on my draft decision.
What I found
B has an Education, Health and Care (EHC) Plan maintained by the Council.
He attended a mainstream middle school.
In March 2021, an annual review of B’s EHC Plan concluded that while he may need specialist provision in the future, the mainstream middle school could meet his needs.
Ms M says there was an incident at school on 15 June 2021. She says B was left alone in a room and passed out. She says she did not want him to return to the school.
The school investigated Ms M’s complaint about the incident. The school did not uphold Ms M’s complaint. The Council’s Safeguarding Team reviewed the school’s investigation and concluded Ms M’s complaint was unfounded.
The school arranged for work to be sent home, although it says it had difficulty engaging with Ms M.
The school contacted the Council in September 2021 when B did not return after the summer holiday. It said Ms M was no longer responding to emails.
On 17 September 2021, Ms M emailed the school to say B could not attend because of the school’s failure to meet his ‘basic’ and ‘special educational’ needs. Ms M said B was now afraid of the school and said he never wanted to return. She said she wanted him to remain on roll until specialist provision could be arranged.
On 11 October 2021, Ms M contacted the Council. She asked it to hold an emergency review of B’s EHC Plan.
On 20 October 2021, the school removed B from the roll. The following day, the school notified the Council B was missing from education. It said Ms M had not engaged and learning materials sent home had not been returned.
Ms M made a formal complaint about the lack of progress on 10 November 2021.
The Council responded by letter dated 23 December 2021. The Council accepted there had been “an unacceptable delay in our moving forward with plans for B”.
The Council said it had agreed to make arrangements for alternative education for B while a new school place was identified.
On 12 January 2022, B returned to the school roll. Mrs M said she wanted him to be removed.
The Council arranged an annual review meeting for B’s EHC Plan on 8 February 2022. Ms M said she wanted a special school for B.
Unhappy with the lack of progress, Ms M complained to the Council again on 11 and 12 January and 21 February 2022. She said she was also suffering financial hardship as B was not receiving his free school meals.
The Council responded by letter dated 4 March 2022. The letter expressed the Council’s regret that a solution had not been found for B’s education.
The Council said it had addressed B’s removal from the roll with the school, and it hoped the annual review meeting reassured Ms M of the next steps being taken. The Council said it was considering Ms M’s request for a special school placement for B.
The Council apologised for the delay but said B could have returned to the school for the Autumn term if Ms M had agreed to send him. The school could, in the Council’s view, meet his needs.
The Council arranged 15 hours a week of alternative provision for B which started on 3 March 2022.
Unhappy with the Council’s response to her complaint, Ms M complained to the Ombudsman on 7 March 2022. She wants compensation for the education and the free school meals B missed between 15 June 2021 and 3 March 2022.
Consideration Missed education Parents have a duty to ensure their children receive suitable education. (Education Act 1996, Section 7).
Most do this by sending their children to school.
Councils have a duty to “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)) The Council is not automatically responsible for a child’s education if a parent removes their child from school. It is advisable for parents to make alternative arrangements before removing their child from school.
In B’s case, it was Ms M’s decision to withdraw him from school. It is understandable the incident on 15 June 2021 caused Ms M concern, but the school, and the Council, thoroughly investigated her concerns. They were found to be unfounded.
A place remained available at the school and the school sent work for B to complete at home. This continued until 20 October 2021 when the school removed B from the roll and notified the Council.
From this point, it appears the Council was responsible for B’s education. B returned to the school’s roll in January 2022, but was removed straight away at Ms M’s request. Rather than take action to require him to attend, the Council appears to have decided to continue its efforts to make alternative arrangements.
The Council described the situation as a breakdown of trust between Ms M and the school. While this was undoubtedly the case, it also appears that mainstream education may no longer have been able to meet B’s needs.
The Council says it began to look for alternative provision and consulted providers. The Council says it made an offer in January 2022, but Ms M declined. The Council says Ms M accepted an offer at the February 2022 annual review meeting, and alternative provision started on 3 March 2022 following the half-term break.
There is no set timescale within which councils must make alternative arrangements. We would expect provision to be in place without delay. In B’s case, it was four months from his removal from the school roll to starting alternative provision. He could have started sooner if Ms M had accepted the Council’s first offer.
Free school meals Children may be eligible for free school meals if their parents or carers receive certain benefits. I understand B is eligible for free school meals.
When not in school, B did not receive free school meals.
The Council offered a goodwill payment at Christmas 2021, but says B would have received free school meals if he had returned to school where there was a place available for him.
As noted above, it appears the Council accepted the school was not suitable and B would not return from 21 October 2021. The Council does not appear to have considered free school meals when considering alternative arrangements for B’s education.
Amending B’s EHC Plan The procedures for reviewing and amending an Education, Health and Care Plan are set out in legislation and Government guidance.
The Council says Ms M asked for a review B’s EHC Plan in October 2021. Ms M says she made the request in June 2021 following the ‘incident’ as she believed the school was not meeting B’s special educational needs.
It is unclear whether Ms M’s request was a request to review the Plan or to re-assess B’s needs.
By October 2021, it was more than six months since the last annual review. As B’s school placement had broken down, and Ms M now wanted B to attend a special school, it seems likely a re-assessment was called for.
Regulations say the Council must decide whether to conduct a re-assessment within 15 days. It must issue an amended plan as soon as practicable and within 14 weeks of that decision.
If the Council decides to review a plan rather than re-assess the child’s needs, it should issue an amended plan within 8 weeks.
The latest the Council should have issued B’s amended plan is 7 February 2022. It should have issued the plan sooner if possible.
B should then have had a new EHC Plan which set out how, and where, he would receive his education.
At the time Ms M complained to the Ombudsman, B’s EHC Plan was one month late. This is an injustice.
Events since Ms M complained to the Ombudsman In July 2022, the Council told me it had not been able to ‘find the right outcome for B’, but assured me it was committed to resolving the issues he faced.
In September 2022, Ms M told me B was still without education. She said the alternative provision arranged by the Council had ended in July 2022 and he did not have a school place. She said the Council had not amended B’s EHC Plan following the review meeting in February 2022.
I have not investigated events after March 2022 when Ms M complained to the Ombudsman. This is because the law says councils must have an opportunity to respond before the Ombudsman investigates a complaint. We do not become involved in day-to-day decisions about children’s education.
Nevertheless, it is of great concern that B appears to still be without a school place and his EHC Plan has not been finalised.
Ms M’s main concern is for B’s education. If it has not already done so, the Council should issue B’s EHC Plan and arrange suitable, full-time education for him – following all relevant guidance and procedures – without further delay. If Ms M disagrees with the Council’s plans, she will have an opportunity to appeal to the First Tier Tribunal to challenge them.
I understand the Council has contacted Ms M about B’s EHC Plan. I welcome the Council’s actions.
Ms M can, if she wishes, complain to the Council and, if she remains dissatisfied, to the Ombudsman about the education B has received since March 2022 and the delay issuing his amended EHC Plan. Any further delay by the Council is likely to compound any injustice B has already suffered.
Agreed action
We have published guidance to explain how we calculate 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 to acknowledge the impact of its mistakes.
B last attended school on 15 June 2021. For the reasons set out above, I consider the Council responsible for his education from 21 October 2021. Alternative arrangements were not in place until 3 March 2022.
At the time Ms M complained to the Ombudsman, B’s amended EHC Plan was also one month late.
Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
I recommended the Council offers a payment of £1,500 for the education B missed between 21 October 2021 and 3 March 2022. This takes account of the offer the Council made in January 2022, which Ms M declined, the free school meals B did not receive, and the one month delay in issuing his EHC Plan.
I have not considered what has happened since 3 March 2022. This includes the suitability of the alternative provision B received, the delay issuing his amended EHC Plan and securing a school place for him. Should Ms M wish, she can complain to the Council and, if she remains dissatisfied, the Ombudsman.
The Council accepted my recommendations.
If it has not already done so, the Council should issue B’s EHC Plan and arrange suitable, full-time education for him – following all relevant guidance and procedures – without further delay.
Final decision
I have ended my investigation as the Council accepts my recommendations.
Investigator's decision on behalf of the Ombudsman