The Ombudsman's final decision
Summary: We found fault on Mrs D’s complaint about the Council failing to ensure her son received educational provision set out in his Education, Health and Care Plan after a school placement ended. It delayed carrying out the Annual Review and issuing the final plan. It failed to monitor whether the school sent work home and accepted communication failures. The agreed action remedies the injustice caused.
The complaint
Mrs D complains about the Council failing to: ensure her son received the provision set out in his Education, Health and Care plan from May 2023 after his school placement ended due to bullying; and communicate properly with her.
As a result, her son is traumatised by his experiences, has lost education, and his mental health worsened which has put them all under a great deal of strain.
The Ombudsman’s role and powers
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) 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 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 has a right of appeal, reference, or review to a tribunal about the same matter. 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) 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.
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 I have not investigated: any complaint Mrs D had about the Council naming an alternative school in her son’s Education, Health and Care Plan (EHCP). This is because this was a decision she could, and indeed did, appeal to the Special Educational Needs and Disability Tribunal (the Tribunal). This includes her complaint about her son losing education from September 2023 when he was to start at the named school. This is because we cannot look at the consequences of this decision as this decision itself is not within our jurisdiction as she has challenged it with the Tribunal.
any complaint she has about the Council not naming education other than at school in his EHCP. This is because she had the right to appeal this decision to the Tribunal.
any complaint about the School’s actions and how it dealt with issues not connected to the EHCP. This is because we have no jurisdiction about what happens in schools.
Education, Health and Care Plans A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal or Council can do this.
Statutory guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out Education Heath and Care (EHC) assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the Special Education Needs Regulations 2014. It says: the first review must be held within 12 months of the date when the EHCP was issued and then within 12 months of any previous review; the decision following the review meeting, whether to keep the EHCP as it is, amend it, or cease to maintain it, must be notified to the child’s parents or young person’s parents within four weeks of the review meeting; and within 8 weeks of the original amendment notice, it must issue the amended EHCP.
The Council must secure the special educational provision where it maintains an EHCP for the child. This does not apply where the child’s parents, for example, have made suitable alternative arrangements. (Children and Families Act 2014, section 42 (2) and (5))
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) The courts have considered the circumstances where the section 19 duty applies. Caselaw confirmed 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)
How I considered this complaint
I considered all the information Mrs D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. Some of the information the Council sent was confidential as it involved third parties. This means I have been unable to refer to it directly or disclose it to Mrs D. I sent a copy of my draft decision to Mrs D and the Council. I considered their responses.
What I found
Mrs D’s son, E, joined the School in September 2022. He joined after various assessments were done to ensure its suitability for him and that it would meet his needs. He had an EHCP which was previously reviewed in January.
The EHCP noted concerns about how E was increasingly socially vulnerable at school. His main areas for special educational needs were to do with literacy. He needed weekly access to a specialist teacher, for example, and support with his reading and spelling. He also needed a speech and language therapy programme.
E needed home to school transport. During these journeys, E began to get bullied by another boy. The School removed the boy from the transport, but the problems moved to the classroom instead. Mrs D said the boy began hitting E and on one occasion strangled him in the playground which resulted in a visit to the hospital. During this period, Mrs D emailed the Council and the school. She said he had been doing well with his school work despite the bullying.
Mrs D complained about the failure to carry out an annual review in February 2023. During its complaints procedure, the Council accepted it failed to review his EHCP within 12 months of the previous one and apologised.
The following month, the Council was aware of an assault on E by another boy which it said was just outside the School’s premises. Officers contacted Mrs D and gave advice which included updates of action taken to safeguard pupils. I have not seen evidence of this contact or advice.
In April, OFSTED carried out an emergency inspection of the School. The police kept the Council updated about its investigation of the incident but decided to take no further action.
In May, the School wrote to the Council, giving it notice of its intention to end E’s placement. It gave six weeks’ notice which meant the placement would end on 3 July. It set out the reasons, which I have seen. The Council asked us to keep this notice confidential.
The School gave Mrs D its decision at the Annual Review meeting three days later. Mrs D did not accept this meeting was an Annual Review.
The Council expected E to go to the School until the placement ended but Mrs D asked for a personal budget instead. While a council will usually ensure the support set out in the EHCP is provided, it can consider paying a parent or the young person, for example, so they organise provision themselves. This is a direct payment but, the first step is for the council to identify a personal budget. This is an estimated amount of money needed to cover the costs of special educational provision in the EHCP. A council does not have to agree to a personal budget if certain circumstances apply.
In June, the Council issued proposed amendments to the EHCP but section I was left blank while it searched for educational provision. Over the next two months, most of the schools it contacted about meeting E’s needs replied saying they could not meet them. Only one school said it could.
Towards the end of July, OFSTED issued its report. It concluded the School met all the independent school standards checked during the inspection. This included looking at the welfare, health, and safety of pupils. There was no evidence Mrs D was made aware of its conclusions earlier than the date of issue.
A panel meeting to consider Mrs D’s personal budget request was arranged but was cancelled. Instead, it asked Mrs D for clarification on information about costing. She argued E needed ‘Education Other Than At School’. Education other than at school (EOTAS) means the education or special educational provision is outside a formal educational setting. It can only be agreed by the Council through an EHC needs assessment, a reassessment of need, or at an EHCP annual review.
Mrs D complained E received no education from May and communication with the Council’s Special Educational Needs and Disability Service was poor. Under its complaints process, the Council accepted the quality of the Annual Review meeting was not what it should have been. It also accepted it was not a properly conducted review.
In July, the Council received confirmation from one of several schools consulted which said it could meet E’s needs. The Council offered her this as an alternative school but, she considered it unsuitable. The Council considered an EOTAS package would not be compatible with the efficient use of the Council’s resources and the avoidance of unreasonable public expense.
It issued a final EHCP in September naming this school. Mrs D appealed the naming decision.
At stage 2 of its complaints process, the Council accepted: the School did not provide any educational provision for E when he stopped attending. This was because the School maintained the placement was still available for him. The School’s view was it had not received any medical evidence he was unfit to go to School and so had no obligation to send him work at home; its SEND Service did not carry out any checks to make sure E was receiving educational provision from the School during this period; and Mrs D accepted an offer of £600 to recognise missed provision for eight weeks and lack of SEND Service management. The Council also paid her £150 for distress.
The Council confirmed there was an ongoing training schedule for all SEND staff which includes the law and legal updates to ensure staff are aware of duties and responsibilities.
My findings
The courts decided if someone has appealed to the Tribunal, the law says the Ombudsman cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHCP, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal, then the period we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn, or conceded. We would not usually look at the period while any changes to the EHCP are finalised, so long as a council follows the statutory timescales to make those amendments.
Nor can we investigate a council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
I found the following on this complaint: The Council accepted the Annual Review should have been carried out within 12 months of the previous one. This meant it was due by January 2023. It was done in May, four months later. This is fault.
I am satisfied this caused Mrs D an injustice. She had the frustration and anxiety of not having E’s needs reviewed promptly.
There was a delay between the Council issuing the draft and final EHCP following the Annual Review. The Council knew in May it had to amend it because of what the School said about ending his placement. It had 12 weeks from the Annual Review to issue the final EHCP, provided it issued a notice within 4 weeks of it saying whether it would amend, stop, or continue with the EHCP in its existing form. This meant it had until 18 August to issue the Final EHCP. It issued it more than two weeks later.
I am satisfied this caused Mrs D an injustice. This is because the failure caused distress as she had the frustration and anxiety of waiting more than two weeks longer than allowed for the final EHCP. It also delayed her ability to appeal the naming of the new school.
Mrs D had understandable concerns about whether E would be safe if he went back to the School during May to July. The Council considered it reasonable for E to return for this period. It explained it reached this view because: it knew when the inspection took place; if OFSTED had found safeguarding was inadequate, it would have been under an duty to immediately tell the Council; it received no notification from OFSTED; the School told the Council after the inspection verbal feedback from OFSTED inspectors was positive; information received from its virtual Headteacher about supporting the school concerning risk assessment and risk management.
On balance, I am satisfied the Council considered and assessed whether it was safe for E to return to the School following the assault.
While Mrs D was unaware of the OFSTED finding until July, I note the attendance information the Council sent showed E attended the School regularly from the date of the assault until Mrs D’s decision to stop sending him there. This tends to show Mrs D had some confidence in the School’s ability to manage the situation.
The Council accepted it failed to monitor whether the School was setting and sending work, or providing off-site work for E between May and July to ensure his educational needs were met under the EHCP. This failure was fault.
I am satisfied this caused Mrs D and E an injustice. She had the worry, frustration and upset he was not receiving education. He lost education for this period.
The Council accepted it could have communicated better with Mrs D than it did throughout. I consider this failure amounts to fault.
I am satisfied this caused Mrs D injustice as she suffered some frustration.
Agreed action
I considered our guidance on remedies and have also taken account of the Council’s: acceptance and apology for failing to check whether E was receiving educational provision from the School. I note the Council offered, which Mrs D accepted, £600 for missed provision for eight weeks and lack of SEND Service management.
payment of £150 for distress.
apology for the delay with the Annual Review.
apology for miscommunication with her and how it would work with the relevant department about the recommendations made during the stage 2 investigation about improving procedure and practice guidance.
ongoing training for all SEND staff which includes SEND Law Levels 1, 2, and 3.
SEND Legal updates to staff to ensure awareness of duties and responsibilities.
The Council agreed to take the following action within four weeks of the final decision on this complaint: Sends Mrs D a written apology for the delay issuing the final EHCP.
Pay an additional £300 to Mrs D for the distress caused by the delay with holding the Annual Review and issuing the final EHCP.
Review why there was a delay with the Annual Review and act to ensure the delay cannot be repeated on future cases.
Review why there was a delay with the issuing of the final EHCP and act to ensure the delay cannot be repeated on future cases.
Ensure officers are reminded about the need to monitor whether schools are providing work to EHCP pupils not attending who remain on the roll.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I found fault on Mrs D’s complaint against the Council. The agreed action remedies the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman