The Ombudsman's final decision
Summary: Ms X complains the Council delayed in securing a suitable educational placement for her son, Y, who has an Education, Health and Care (EHC) Plan and it failed to advise her she could appeal the placement named in Y’s EHC Plan. The Council is at fault for not meeting the statutory timescales when arranging annual reviews for Y and finalising his EHC Plans, it delayed in consulting with suitable settings after his placement broke down, it failed to provide Y with the provision in his EHC Plan when he was unable to attend school and it failed to communicate with Miss X effectively. The Council has agreed to our recommendations to remedy the injustice caused by these faults and it has also agreed to make service improvements.
The complaint
The complainant, who I shall refer to as Miss X, complains the Council delayed in securing a suitable educational placement for her son, Y, who has an Education, Health and Care (EHC) Plan. Miss X also complains the Council failed to advise her that she could appeal the placement named in Y’s EHC Plan. Miss X also says the Council failed to properly communicate with her.
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) 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 complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 Miss X’s complaint and the information she provided.
I considered the information I received from the Council in response to my enquiries.
Miss X and the Council were given an opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.
What I found
Relevant law and guidance Education, Health and Care Plans A child with special educational needs (SEN) 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 which include: Section B: The child or young person’s special educational needs Section F: The special educational provision needed by the child or the young person Section I: The name and/or type of school.
We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194) 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. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
Education for children out of school The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine. If a council decides to prosecute a parent, they will be formally cautioned and interviewed under the Police and Criminal Evidence (PACE) Act 1984.
Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils to arrange suitable alternative education. The only exception is when suitable provision is already being made.
The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.
The Council should attempt to arrange this alternative provision as soon as it is clear that the child will be away from school for more than 15 school days, although there is no statutory timeframe.
The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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).
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? Ensuring children out of school get a good education, published in July 2022) We made six recommendations. We said councils should: consider the individual circumstances of each case and be aware they may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence in reaching decisions; choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education; work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
What happened Below is a summary of events relevant to my investigation. It is not an exhaustive chronology of every exchange between parties.
Miss X has a son, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council.
Y was on roll at School 1, a specialist school. In September 2022, Y stopped attending School 1 after he was suspended for two days.
An annual review of Y’s EHC Plan was held in November 2022. Following this review, the Council sent out consultations to three schools. Miss X was unhappy that so few settings had been consulted. In April 2023, the Council consulted with further specialist settings.
The Council arranged Maths and English tuition for Y which began in February 2023.
The Council issued Y’s final EHC Plan on 4 April 2023, naming School 1 in Section I.
In May 2023, School 2 responded to the consultation it had received from the Council in April 2023. School 2 offered Y a place. The Council’s SEND Panel considered this offer at the end of May 2023. The SEND Panel decided they could not make an informed decision on School 2’s offer until it had received responses from all settings and that it was confident that all responses it received ‘satisfied the legal requirements’. The Council said that once this work was done, the offer from School 2 would be reconsidered by the Panel.
Miss X complained to the Council in June 2023. The Council sent its Stage 1 response to Miss X in August 2023. The Council apologised for the delay in responding to the complaint and it apologised for the poor communication she received from the Council’s SEND Team. The Council said it was producing a SEND training and development programme for its staff and the programme included learning about positive communication and parental perspectives.
The Council also advised Miss X that when she received the final EHC Plan in April 2023, she could have appealed the decision to name School 1 on Y’s EHC Plan. The Council also said it would keep Miss X updated with the progress of the Council decision of a placement for Y.
Miss X was frustrated with the Council because Y had been out of school for nearly a year and although School 2 had offered a place, the Council had refused this offer multiple times. Miss X felt her concerns were not being treated seriously by the Council.
Miss X told the Council she was dissatisfied with the Stage 1 response to her complaint. She highlighted that she had been told by the Council on several occasions, including in the annual review meeting, that School 1 could not be removed from Y’s EHC Plan. Miss X says she was under the impression that Section I of the EHC Plan could not be left blank and the Council was still looking for a suitable placement to name.
On 3 August 2023, the Council informed Miss X that it had confirmed a place for Y at School 2.
Y’s place at School 2 commenced in September 2023.
Analysis The Council’s consultations with settings Following the annual review in November 2022, the Council consulted with only three settings. The Council acknowledges that more settings should have been consulted at this point. The Council has apologised to Miss X for this error.
It was only after Miss X repeatedly made her concerns known, did the Council then approach a further 17 settings. This is fault. This delay of five months could have resulted in a school place being secured sooner. It has caused Miss X and Y uncertainty over a five-month period and avoidable distress. I do not consider an apology effectively remedies the injustice caused by the fault. I have therefore made recommendations to remedy the injustice below.
Annual review of Y’s EHC Plans An annual review of Y’s EHC Plan was held in November 2022. The Council should have issued his final EHC Plan by mid-February 2023. The evidence shows the Council issued Y’s EHC Plan nearly eight weeks later than it should have. This is fault. This caused avoidable frustration and uncertainty for Miss X and also to Y.
After the annual review in November 2022, the following annual review was not held until February 2024. There was no annual review in 2023. This is fault. This has caused Y to not have the most up to date and relevant EHC Plan in place so the provision suited to his needs can be delivered.
I also understand the Council has not finalised Y’s EHC Plan following the annual review held in February 2024.The final Plan should have been issued by 1 May 2024. This is also fault. This means that Y does not have the most up to date EHC Plan in place therefore there is uncertainty that Y is receiving the provision suited to his needs. The fault is also delaying Miss X’s appeal rights to the SEND Tribunal.
Miss X feels the Council is not taking Y’s education and his needs seriously due to the repeated failings to adhere to statutory timescales. The correspondence from Miss X demonstrates the frustration she is experiencing is significant. I have made recommendations to remedy the significant injustice caused to Miss X and to Y as a result of this repeated failure that is still continuing.
Due to these repeated failures that are ongoing, I have also made recommendations for service improvements for the Council to consider.
Lack of provision Y received some educational provision in the academic year September 2022 to July 2023, but this was not equivalent to a full-time education and he did not receive all of the provision specified in his EHC Plan. For example, there is no evidence Y received speech and language therapy and occupational therapy as specified in Section F of his EHC Plan. This is fault. Also, the Council did not arrange alternative provision until February 2023 when it was clear in November 2022 that his placement at School 1 had broken down. This is also fault.
Miss X says this had a detrimental impact on family life and having Y home disrupted routines within the household.
I have recommended a financial remedy for the lost provision in the academic year 2022-23. When calculating the remedy, I have considered the limited provision that Y did receive from February 2023 and also his circumstances.
Council’s communication with Miss X In the Stage 1 complaint response, the Council told Miss X that she could have appealed to the SEND Tribunal if she was unhappy with School 1 being named on Y’s EHC Plan that it issued in April 2023. Miss X says the Council advised her in the annual review meeting in November 2022 and on several other occasions thereafter, that School 1 could not be removed from Y’s EHC Plan and she was under the impression that Section I could not be left blank and the Council was looking for a suitable placement for him. Miss X is clear that she was never told verbally that she could appeal the placement.
The Council had provided Miss X with a letter that accompanied the final EHC Plan that notified her of her right to appeal to the SEND Tribunal. I have not found fault with the Council because it provided the correct information with the EHC Plan. However, I have found fault with the Council for the information it provided to Miss X after the EHC Plan was issued. The evidence shows that Miss X was deeply unhappy about School 1 being named on the EHC Plan, that School 1 was unable to meet Y’s needs, Miss X and the family were struggling with balancing family life with Y being at home since September 2022 and Miss X was proactively chasing the Council about finding and securing a suitable placement for Y. Therefore, I consider that if Miss X knew she could appeal the Council’s decision to name School 1 in Section I of Y’s EHC Plan, she would have done.
The Council acknowledges that there was some ‘confusion in communication’ and it has apologised for this. It also said it will mitigate such issues in the future by ensuring parents understand how decisions are made along the EHC Plan process.
Council’s Complaint Process When Miss X submitted her complaint to the Council she received an acknowledgement that stated the Council would respond within 15 working days. The acknowledgement also stated that if the response was going to take longer, a council officer would be in touch to let her know. The Council’s Stage 1 response was over three weeks late. This is fault.
I have also found further fault with the Council for failing to contact Miss X to let her know about the delay. This caused Miss X frustration and it made her feel as though her concerns were being ignored.
Agreed action
To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will: Apologise to Miss X and to Y for the faults identified above; Finalise and issue Y’s EHC Plan following the annual review that was held on 1 February 2024; Make a payment of £3000 to Miss X, for Y’s benefit, for the missed provision during the academic year September 2022 to July 2023; Make a payment to Miss X of £500 for failing to adhere to statutory timescales when arranging annual reviews and finalising subsequent EHC Plans for Y; Make a symbolic payment to Miss X of £850 for the avoidable distress, time and trouble caused by providing her with incorrect information, the delay in responding to her Stage 1 complaint and the delay in consulting with settings.
The Council has also agreed that within three months of this final decision it will review how it deals with annual reviews of EHC Plans and it will implement actions to ensure that statutory timescales are met when arranging reviews and finalising EHC Plans.
The Council will provide us with evidence it has complied with the above actions.
Final decision
The Council is at fault and it has agreed to our recommendations to remedy the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman