The Ombudsman's final decision
Summary: Mrs D complains the Council failed to provide education or special educational provision to her son, J, for over a year. The Council has accepted there was fault. To remedy this it has agreed to apologise and make a payment to Mrs D for J’s educational benefit. We found fault in complaint handling which has caused Mrs D some time and trouble. The Council has agreed to review its complaint policy.
The complaint
Mrs D complains that the Council failed to: Provide her son, J, with suitable education or alternative provision from September 2022 to January 2024.
Deliver the SEN provision detailed in Section F of J’s EHC plan from September 2022 to January 2024.
Complete an EHC re-assessment within the statutory deadlines and failed to obtain assessments.
Communicate with her appropriately and on time.
Deal with her complaint in accordance with its policy.
Mrs D says this has caused distress and loss of education for J affecting his mental health and wellbeing, and significant distress to the family. It has also caused her significant time and trouble pursuing the matter, affected her employment and they have had to privately arrange and fund activities for J.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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.
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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) 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 have and have not investigated Mrs D complained about the Council’s actions in relation to section I and section F of J’s EHC Plan. Normally, we would not investigate those matters because we would expect Mrs D to appeal those to the SEND Tribunal.
However, I have exercised discretion to investigate those matters because I consider it would not be reasonable to expect Mrs D to have appealed the August 2023 EHC Plan. This is because the Council had advised her it would be reviewing it. Or the November 2023 EHC plan as this set out the education other than at school package which she wanted for J.
How I considered this complaint
I spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and: The Special Educational Needs and Disability Code of Practice, January 2015 ("the Code") The Children and Families Act 2014 The Special Educational Needs and Disabilities Regulations 2014 Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Special educational needs A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
Once a council has issued a final plan and given the right of appeal, we cannot investigate matters that could have been appealed except in limited circumstances.
EHC needs re-assessments Councils must conduct a re-assessment of a child or young person’s EHC plan if a request is made by certain people, including the child’s parent (unless it is less than six months since a previous assessment).
The process for re-assessment is the same as that for a first assessment. Councils must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests.
The Council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHC plan.
Councils must give the child's parent or the young person 15 days to comment on a draft EHC plan. The council then consults with the school(s), allowing 15 days to respond.
The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan, subject to exemptions including if the school is closed for at least four weeks. However, councils must aim to complete the process as soon as practicable. (SEND Code of Practice, para 9.192) Alternative educational provision The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1)) The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]) The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.
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) When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
Complaints procedures The Council has a two stage corporate complaints procedure. It aims to respond within 10 working days at both stages. Service requests will be dealt with prior to escalation to the complaints process.
The Council’s 2020 complaint policy says some complaints will not be dealt with under the policy, such as those where there is a statutory right of appeal, or legal proceedings. In relation to SEND, the policy says: “SEND issues such as a customer dissatisfied with the application of eligibility and assessment criteria, for example, a decision to assess or provide an Education Health and Care Plan (EHCP), do have an alternative route for resolution. From September 2014 the Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability 0-25 Code of Practice 2014 came into force, therefore, issues will be responded to under these regulations. Such matters may be responded to as a service request – this is defined as an issue that the Council has not had the opportunity to remedy. If the Council fails to solve the issue the matter would be treated as a complaint.”
What happened Mrs D’s son, J, has autism, special educational needs and anxiety. He had a placement in a specialist school for children up to 19 years old (“the School”) but had been struggling to attend. Mrs D says that by April 2022 J was out of school and no longer receiving any education. He was due to transfer to secondary education in September 2022.
Mrs D requested a re-assessment of J’s EHC needs. The Council agreed to this on 8 June 2022. It received the educational psychologist’s report in July. This said J was not attending school due to very high levels of anxiety. He therefore required a bespoke plan of one-to-one support at home with the aim of gradually reintegrating him into school.
Mrs D says J was unable to go back to school in September 2022 due to his anxiety and that no education was put in place. In response to her complaint, the Council has accepted this and that it had had a duty to provide J with alternative provision under section 19 from September 2022.
A draft EHC plan was issued in October 2022 and there was a meeting with Mrs D to discuss it. The Council consulted with the School. It then issued a termination of placement notice, to end J’s placement at the School on 19 January 2023.
In January 2023, the Council offered J tuition but Mrs D said it was not suitable as it included group work.
There was a further meeting to discuss the draft EHC plan. The Council was still awaiting reports from the School, occupational therapy (OT) and speech and language therapy (SALT). A draft EHC plan was issued in March 2023 which said school was inappropriate for J and education other than at school (EOTAS) would be provided. Mrs D commented on this and a revised draft was issued on 7 April 2023.
The Council consulted with a different tuition provider. In June 2023 it apologised to Mrs D that alternative provision was not yet in place. The Council said that its inclusion service had been unaware that J was no longer on the roll of the School. It offered online tuition from the second provider, but this was not suitable due to a lack of support for J to do the sessions at home.
The Council’s SEND panel considered a request for J to have EOTAS in June 2023. It decided there was not enough evidence that no school would be appropriate for J. However, it agreed that an EOTAS package should be put in place as alternative provision. The Council agreed to fund some mentoring sessions that Mrs D had arranged for M.
The Panel asked for additional educational psychology advice and for consultations with secondary education settings. It said a final EHC plan should be issued naming specialist provision type but the Council would review the plan once the educational psychology advice was received.
Mrs D made a formal complaint on 14 August 2023. I have set out what happened with complaint handling separately, below.
A final EHC plan was issued on 16 August 2023. The Council requested an OT assessment and consulted with some schools but they were not suitable. The Council’s SEND panel in August agreed that no other schools were suitable and that an EOTAS package should be provided.
A further final EHC plan was then issued on 21 November 2023. Section I was left blank as the provision was to be EOTAS.
The updated educational psychology report was received in December 2023. It said that, to re-engage J in learning, he initially required a bespoke one-to-one programme. The Council started to provide tutoring for J in late January 2024.
Mrs D’s complaint Mrs D made a formal complaint on 14 August 2023 that no education or special educational needs provision had been made for J since September 2022. She also complained that assessments had not been sought. She spoke to an officer but emailed again as she had not received a written response by 29 August.
The Council replied that it had treated Mrs D’s complaint as a service request but that it would reply to her complaint by 20 September, due to its complexity. Mrs D queried this approach and delay. In response, the Council said it had a protocol that certain matters did not have to go straight to the complaints process if the matter could be resolved sooner or if there was another formal process, for example mediation and tribunal. It said officers had been working with Mrs D to find a resolution, and therefore a service response had been provided. It would issue the stage one response on 20 September.
The Council’s stage one response upheld Mrs D’s complaint that there had been delay in the EHC plan process and that no alternative provision or special educational needs provision had been made for J since September 2022. It also apologised for poor communication. The Council said that during the re-assessment it had sought information and advice from SALT and OT but accepted it should have sought an updated OT assessment. It said it had followed its complaint policy, which allowed for a service response to be made prior to escalation to stage one of the complaints process.
Mrs D asked for the complaint to be escalated to stage two on 30 September 2023. She said J was still not receiving an education or special educational provision and nothing had been suggested or proposed. In addition, the Council had failed to arrange a SALT assessment or an assessment of J’s emotional and mental health needs. Mrs D remained dissatisfied with the way her complaint had been dealt with.
The Council’s stage two response was sent on 12 October 2023. The Council apologised that due to a lack of personal assistants it had not yet put the EOTAS in place. It did not uphold Mrs D’s complaint about complaint handling.
My findings
The Council has accepted that it had owed J a duty to provide alternative educational provision form September 2022. I have seen evidence that the Council made attempts to find a suitable home tutor but no education was put in place until January 2024. This is fault.
As J was not in education, the Council also failed to secure the SEND provision that was set out in his 2022 EHC plan from September 2022 to January 2024.
The Council accepts it failed to issue the final EHC plan within the statutory timescales. A final EHC plan should have been issued 14 weeks after the Council’s agreement to re-assess, i.e. by 14 September 2022. An exemption applied due to school summer holidays, but nonetheless I would have expected the plan to have been issued by the end of October 2022. It was not issued until August 2023, which is fault.
The Code says there should have been an annual review of J’s plan even if he was not in school. I acknowledge that a re-assessment had taken place, but I would have expected a review of J’s plan to have taken place during the autumn term of the 2022/23 academic year, once it was clear that J was not attending and had no education in place. I have seen no evidence an annual review was held, which is fault.
I am concerned that the Council ended J’s placement in the School in November 2022, before any alternative provision or other education was in place. The statutory guidance on alternative provision says pupils should be dual-registered if they are attending alternative provision and I consider that children should normally be removed from a school’s roll in a planned way. I therefore find fault, although this did not cause injustice to J as he was not attending the School.
Mrs D complained that the Council did not seek assessments by OT, SALT or mental health. The Code requires councils to seek “information and advice” as part of an EHC needs assessment, which the Council did. They are not required to seek assessments, I therefore do not find fault with the Council’s decision not request SALT and mental health assessments, which is a decision it is entitled to make. However, the Council has accepted it should have sought an OT assessment. If Mrs D is unhappy with the content of the EHC plan due to lack of assessments, she can appeal to the Tribunal which has powers to order reports to be completed.
There was fault in complaint handling caused by a lack of clarity in the Council’s complaint policy. The policy says service requests, or issues which may be dealt with under other processes (such as by the Tribunal), will not be dealt with as complaints. It describes a service request in relation to SEND as “a matter that the Council has not had an opportunity to remedy.” This is confusing and risks preventing legitimate complaints from being dealt with appropriately.
My view is that Mrs D’s letter of 14 August 2023 was not a service request, such as a request for an assessment, but a formal complaint about the Council’s failure to comply with its statutory duties and the Code, which should have been dealt with under stage one of the Council’s complaint process. If it had been, she should have had a stage two response by mid-September 2023, rather than mid-October. This delay has caused her some time and trouble in having to pursue her complaint.
The failure to provide education and SEN provision has caused J to miss out on education, affected his mental health and caused significant distress to Mrs D. This is an injustice.
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.
Our guidance on remedies says that 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 impact of that loss. Having taken into account J’s SEN, that it was a significant period as he was transferring to secondary education, and that it was unlikely he could have attended education full time, my view is that a sum of £2,100 per term would be suitable. I am therefore recommending a payment of £9,100 which covers three terms in the 2022/23 academic year, the first term of the 2023/24 academic year and an extra month of January 2024. This should be used for J’s educational benefit.
Our guidance says that for distress, time and trouble and loss of appeal rights caused by fault, a moderate symbolic payment up to £500 may be appropriate.
We do not normally recommend remedies that reimburse loss of earnings. This is because we are unlikely to be able to reach conclusive findings (on the balance of probabilities) on such matters through our investigations. We cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts.
Agreed action
Within a month of my final decision, the Council has agreed to apologise to J and to Mrs D and pay her: £9,100 for J’s educational benefit.
£500 to remedy the avoidable distress, time and trouble and loss of appeal rights she has been caused.
Within three months of my final decision, the Council will review its complaints policy to clarify the definition of a SEND service request.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman