The Ombudsman's final decision
Summary: The Council took too long to issue a final Education Health and Care (EHC) Plan, following a review. During this time, the child has not been able to attend school due to the risk of harm. The Council failed to ensure that the child received the provision set out in the Plan or properly considered whether the Council has met its legal duty to make sure it provides a suitable education.
The complaint
Mr B complains that the Council: Failed to ensure that his son had a suitable education in accordance with his EHC Plan, when his school told him he could no longer go there; Failed to review his EHC Plan in time when the circumstances changed; and Failed to address his complaint to it properly, or in accordance with its policy.
Mr B says that as a result of the Council’s failings, his son has not had a suitable education since the summer of 2022, and had no provision at all between March and November 2023. He has missed education and has become more isolated. This has caused the family distress and uncertainty.
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 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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken all comments received into account before issuing this final decision.
What I found
The law and guidance 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.
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) 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.
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 take place. The process is only complete when the council issues a decision about the review.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 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.
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) 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) What happened Mr B’s son, K, has special educational needs. K goes to a special school named in his EHC Plan. K’s EHC Plan is dated May 2021.
In June 2022, the Council held an annual review and decided to maintain the EHC Plan with no amendments. However, later that month, there was an incident at school and the school told Mr B that K could not attend. In mid-July, the school and the Council’s Learning Disability (LD) Team held a meeting and K worked with the LD Team during the school holidays in the empty school with the aim of him coming back to school in September. The LD Team made recommendations to support K.
However, after two weeks there was another incident at the school and K was sent home. Mr B says that the placement broke down because the school did not put the correct support in place. For example, Mr B says the EHC Plan says that K should have a room to go to when he was struggling with his behaviour, but the school said this was not available.
The school told Mr B that K could no longer attend the school. However, the school did not exclude K and he remained on the school roll. The school almost immediately referred K to a specialist alternative provision. K started going there at the end of September, but he could not stay as there were therapy dogs there and K has a phobia of dogs. At the end of January 2023, the specialist alternative provision said that it could not meet K’s needs.
The school held another meeting in mid-February. Another specialist alternative provider said it would start work with K and would build up support slowly, while another agency provided some outreach work. However, due to staffing, none of this support materialised.
In May 2023, K started a therapeutic provision but this ended in late June, again due to K’s distress which led to harmful behaviour.
The annual review meeting of K’s EHC Plan was held in April 2023, and the review was completed in July 2023. The review heard that: Both parents were concerned that K was out of education.
K had periods of extreme distress which is a risk of harm to himself and others and so he had not been in school classes since June 2022.
The school had tried school and community-based packages to try to engage K in learning but none had worked. K remained on the school roll.
The review suggested that K needed a multi-agency approach that does not cause him distress. It suggested that the EHC Plan should be amended.
In August, the Council and the school met with its intensive positive behaviour service. It assessed the situation and drafted a behaviour support plan.
Mr B complained to the Council. He said his son had not been in any educational setting at all since January 2023, and had not been in an appropriate setting since June 2022 when he was told he could not go to the special school named on his EHC Plan. Mr B said the Council was failing to provide his son with an education. The Council said that the school had put various provision in place but this was unsuccessful. The Council had not been able to attend the review meetings. The Council had made direct payments to fund a personal assistant to support K to return to the school. It said it was working to plan the most appropriate provision for K.
Mr B said that this did not answer his complaint. The Council offered to meet with Mr B to discuss the issues but he said that this was unlikely to be productive.
In November, the Council notified Mr B that it intended to amend K’s EHC Plan. It issued the final EHC Plan on 12 December 2023. It says this delay is because it needed information from the Educational Psychologist and the Intensive Behaviour Support Team. The EHC Plan names the school that has told Mr B his son cannot attend. However, Mr B had the right to appeal the final Plan.
Was there fault by the Council causing injustice to Mr B and his son?
There was fault by the Council. It delayed significantly in progressing the amendments to K’s EHC Plan. The annual review was held on 14 March 2023. The Council should have notified Mr B of its intention to amend the Plan by 11 April (4 weeks), and issued the final EHC Plan by 6 June 2023 (within a further eight weeks). Instead the Council did not issue the final Plan until December 2023.
The Council says that the delay was because it had to wait for reports from the Psychiatrist and the Behaviour Team. However, the time taken to gather information does not change the legal time frame. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407).
I also note that the Council has had the Psychiatrist’s report since June 2023, and the Behaviour Team’s report since September, and only issued the final EHC Plan in December 2023.
The Council’s delay caused Mr B and his son significant uncertainty and distress. It also delayed Mr B’s right to appeal. The new EHC Plan says that K will continue at the special school. However, the school has not been able to meet his needs for some time. Mr B had no right of appeal to challenge this or any other aspect of the provision until the Council issued the final EHC Plan.
Mr B is very concerned that K has not had a suitable education since the summer of 2022 and has become isolated. K is still on the school roll, but regardless of this, the Council retains a duty to ensure that he receives the provision set out in the EHC Plan, and we expect councils to demonstrate appropriate oversight. It is clear that K was not getting the provision set out in his Plan.
The Council should have also considered whether it has a duty to provide alternative provision because he is ‘otherwise’ unable to attend the existing schooling. K received some alternative provision but the Council cannot show that it has properly met this duty when provision broke down. Again, the Council retains this duty regardless of whether K is still on the school roll.
As a result of the Council's shortcomings, K has missed educational provision. K had limited educational provision from October 2022 to January 2023 because he was unable to access the alternative provision due to his phobia. K had no educational provision at all from January to July 2023 (except around a month in the therapeutic provision); and also no provision from the September to December 2023. This has had an impact on him and Mr B.
Mr B complained to the Council. The response described in brief what had happened but did not address K’s lack of educational provision, which was the main thrust of Mr B’s complaint. The Council also did not make clear at which stage of its complaint process it was responding, and it did not signpost Mr B to the Local Government and Social Care Ombudsman. Instead it said that he must wait for the final EHC Plan and then appeal. This caused Mr B distress and frustration because the impact of the matters complained about was ongoing.
Agreed action
As part of an earlier investigation the Council has already agreed to: issue written reminders to relevant staff to ensure they are aware of the Council’s duties to provide provision or suitable education for children who cannot attend school because of exclusion, medical reasons or otherwise; issue written reminders to relevant staff to ensure they are aware of the Council’s duty to meet statutory timescales for EHC needs assessments and EHC Plans; and develop and implement, complaint response letter templates to ensure they include reference, where appropriate, to which stage of the complaints process they are issued under, and how the complainant may progress their complaint if they are unhappy with the response.
We are monitoring the Council’s actions to make sure it complies with these agreed remedies.
When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. 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. This is because it is not possible to now provide the services missed out on.
The Council will also within one month of the date of this decision: Apologise to Mr B for the faults I have identified. 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 to Mr B a symbolic payment of £350 in respect of the distress caused him by the delay in issuing the final EHC Plan which delayed Mr B’s ability to appeal to the Tribunal.
Pay to Mr B a symbolic payment of £4,100 in recognition of the impact on K of the missed provision. This is calculated as one term or reduced provision (£900) and three terms of no provision at £1,200 per term less a symbolic amount to recognise that the Council provided some therapeutic provision. Mr B can use the money for the benefit of K, as he sees fit.
Share this decision with relevant staff.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. There was fault causing injustice.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman