The Ombudsman's final decision
Summary: Mr X complained the Council failed to review and update his child’s Education, Health and Care Plan. Mr X also complained the Council failed to put in place 1:1 support for his child and the lack of support resulted in his child’s expulsion. We found fault with the Council failing to meet the statutory timescales to review Mr X’s child Education, Health and Care Plan for 20 months. We did not find fault with the Council failing to provide the provision detailed in Mr X’s child’s Education, Health and Care Plan. The Council agreed to apologise to Mr X for the distress and inconvenience caused and pay him £2,700 for the lost opportunity for his child’s to access a suitable education caused through the delays in reviewing his child’s Education, Health and Care Plan.
The complaint
Mr X complained the Council failed to review and update his child’s Education, Health and Care Plan for their transition to secondary school.
Mr X says his child received 1:1 support in primary school but the secondary school failed to provide this. Mr X says the Council promised funding for 1:1 support in an annual review in May 2023 but the school did not put the support in place.
Mr X says the lack of support provided by his child’s secondary school resulted in their expulsion.
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) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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. (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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I have and have not investigated I have investigated Mr X’s complaints about the Council’s delays in reviewing his child’s Education, Health and Care Plan. I have also investigated Mr X’s complaint about the failure of the Council to put in place his child’s educational support at secondary school.
I have not investigated Mr X’s complaints about the suitability of his child’s Education, Health and Care Plan produced in November 2023. This is because Mr X has an appeal right to the SEND tribunal about the suitability of this Education, Health and Care Plan. It is appropriate for Mr X to exercise this appeal right about this aspect of his complaint.
How I considered this complaint
I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
EHC Plans 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.
Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. This includes when a child transfers from primary to secondary school.
Alternative Provision of education for children 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.
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 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) Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
What happened In 2016, the Council produced the first EHC Plan for Mr X’s child, who I shall refer to as Y. Y’s EHC Plan detailed the Section F provision the Council should provide for Y. The Section F provision for Y included extra support in the school to develop Y’s vocabulary, speech, social skills, literacy, numeracy and self-help among other things. The provision was non-specific about how much support Y would need.
The Council continued to review and maintain Y’s EHC Plan through to May 2021. In the annual review meeting in May 2021, the Council discussed the need to start the transition process to secondary school for Y in September 2022.
On 20 December 2021, the Council issued an amended draft EHC Plan for Y and detailed up-to-date provision Y would need including 1:1 support in the classroom. The Council detailed that Y’s school placement from 2022 would need an extra £8,000 in funding to meet Y’s needs. The Council left Section I of Y’s EHC Plan blank with the view to finding a suitable secondary school placement for September 2022.
The Council did not issue a final EHC Plan for Y before Y started at secondary school in September 2022.
In May 2023, the Council held an annual review of Y’s EHC Plan. The annual review meeting noted increased concerns about Y’s ability to manage social needs in school and the need to recruit suitable 1:1 support for Y.
On 29 August 2023, Mr X complained to the Council about the delay in providing suitable funding to Y’s school and the lack of suitable support for Y.
Y’s school excluded Y on 7 September 2023 and told the Council about the exclusion on the same date. Mr X contacted the Council the following day to complain neither he nor the school had received an up-to-date EHC Plan for Y meaning the lack of support in place resulted in Y’s exclusion.
On 18 September 2023, the Council started to provide daily tutoring sessions for Y.
On 10 November 2023, the Council issued an amended final EHC Plan for Y following agreement of a new school placement for Y. This final EHC Plan confirmed the need for Y to receive 1:1 support and confirmed agreement of the extra £8,000 funding for Y’s support needs.
Mr X complained to the Council about the previous secondary school claiming funding for Y but never putting support in place. Mr X also raised concerns about the content of Y’s EHC Plan.
The Council provided a Stage 1 complaint response. The Council promised to complete an early annual review of Y’s EHC Plan once Y had started at the new school. The Council said it has redirected Y’s funding to the new school for the academic year 2023/2024.
Mr X responded to the Council advising it did not answer his complaint about the lack of support in place at the previous secondary school.
The Council provided a Stage 2 complaint response in January 2024. The Council said: It provided Y’s previous secondary school with £8,000 of funding for the academic year 2022/2023 so it could provide extra support for Y.
Y’s school provided extra support for Y from a named person, an area to go to and a plan for a safe space.
It accepted failed to update Y’s EHC Plan until November 2023.
It had agreed extra funding and sent this to Y’s new school.
Since Y was in education it considered it should only pay Mr X for the distress caused through the Council’s delays in providing extra top-up support and updating Y’s EHC Plan. The Council offered Mr X £350 in recognition of this.
Analysis Reviewing Y’s EHC Plan The Council has reviewed Y’s EHC Plan regularly from 2016 to 2021 and decided to maintain this EHC Plan through Y’s time at primary school. The Council took suitable steps to produce a draft EHC Plan for Y’s transition to secondary school in December 2021. This left suitable time to share this with Mr X and produce a final EHC Plan by 15 February 2022. The Council has acted correctly up to 20 December 2021. I do not find fault with its actions up to this point.
Following issuing the draft EHC Plan for Y in December 2021, the Council failed to produce a final EHC Plan before the 15 February 2022 statutory deadline. This was fault.
The Council also failed to issue a final EHC Plan before Y started secondary school in September 2022 or got excluded from school in September 2023. Overall, the Council delayed for 20 months in issuing Y’s EHC Plan until 10 November 2023. I have addressed the impact of this fault in paragraphs 45 to 50.
Provision of EHC Plan support A council has a legal duty to provide all provision detailed in a child’s EHC Plan for a child. A council may delegate this duty to relevant bodies, such as the school or contracted therapists, but it is ultimately responsible for ensuring provision is delivered.
When Y transferred to secondary school, Y’s EHC Plan as out-of-date. This meant the active EHC Plan for Y’s secondary school was the maintained EHC Plan from Y’s time at primary school. The Council, or the school on its behalf, was not obligated to provide any of the support detailed in the updated draft EHC Plan produced in December 2021. Instead, it was only obligated to provide the out-of-date support from the previous EHC Plan.
I cannot find the Council at fault for failing to ensure Y’s school provided Y with any support from the draft December 2021 EHC Plan.
Y’s school confirmed it provided support for Y through a class-based learning coach in all sessions throughout the academic year 2022/2023. The school advised the Council funded this support but it could not put in place extra 2:1 support as it did not receive any extra funding for this.
The Council has provided evidence of providing top-up funding to Y’s secondary school for the academic year 2022/2023. This is despite the Council not updating Y’s EHC Plan until November 2023 in the next academic year. I cannot find fault with either the Council or school for the provision put in place to support Y based on the active EHC Plan from September 2022 to September 2023.
Loss of opportunity While I cannot find fault with the Council for ensuring provision was put in place in line with Y’s out-of-date EHC Plan, the delays of the Council to updating Y’s EHC Plan has caused Y lost opportunity at receiving suitable support.
Both Y’s draft EHC Plan from 20 December 2021 and the final EHC Plan from November 2023 show the need for Y to receive specific 1:1 support. Both of these EHC Plans provide clarity about what support Y will need at specific times and for specific purposes. This information is either lacking or outdated in the previous EHC Plan. So, while the Council made the relevant funds available to Y’s previous school, it failed to suitably inform the Council how to support Y through production of an up-to-date EHC Plan. This was fault.
This fault meant any support provided for Y was not specific to Y’s needs and caused a lost opportunity for support. On the balance of probabilities this lack of information and suitable support impacted on Y’s access to a suitable education. However, I cannot draw a direct correlation between Y’s lack of suitable support and exclusion from school.
The Council’s delays in updating Y’s EHC Plan has not only caused distress to Mr X but also lost opportunity for Y for the entire academic year of 2022/2023. The offer by the Council of £350 is suitable to reflect Mr X’s distress frustration caused by the Council’s fault. Since the Council has already paid this to Mr X I would not require a further payment for his distress and frustration. However, this does not address the impact on Y.
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. The figure should be based on the impact on the child and take account of factors such as any educational provision made available to a child and whether the period concerned was a significant one for the child or young person’s school career, such as a transition to secondary school.
The Council’s failure to provide an up-to-date EHC Plan for 20 months, impacted Y’s access to suitable education for their needs for three full terms. The fact that this access to suitable education happened at a significant point in Y’s education is balanced against the fact that Y attended school for the full year and did receive both education and support, albeit not at the right level of Y’s needs. I consider the Council should provide an award of £900 per term, totalling £2,700, in addition to the already £350 paid, to Mr X. Mr X may use this as he sees fit to provide support for Y to catch-up on education missed.
Y’s education from September 2023 to January 2024 The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. Since Y’s school had permanently excluded Y it would be apparent from first contact that Y would be absent for more than 15 days.
Since the School contacted the Council on 7 September 2023 about Y’s absence, the Council was responsible for providing education from the sixth day of absence, this would be from 15 September 2023.
The Council started to provide education from the following school day, 18 September 2023. The Council started to provide education from 18 September 2023, rather than 15 September 2023, at Mr X’s request. I do not find fault with the Council for this.
From 18 September 2023, the Council provided Y with education through a tutor five days each week in the morning. This education continued until Y started at their new secondary school.
The education the Council provided for Y was of a sufficient quantity to meet Y’s needs. While this was short of full-time education, the Council provided tutoring to Y rather than education in a classroom setting. When education is provided on a more individual basis, this can be provided over more condensed hours. I do not find fault with the Council’s provision of education for Y following their exclusion from school.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Provide an apology to Mr X for the distress and frustration caused by the Council’s avoidable delays in reviewing and updating his child’s EHC Plan.
Provide a payment of £2,700 to Mr X for Y lost opportunity to access suitable education provision based on an up-to-date EHC Plan for three full terms.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman