The Ombudsman's final decision
Summary: the Council ended the special educational provision in B’s Education, Health and Care (EHC) Plan before amending the Plan. B appears to have been without education for two terms as a result. Ms M did not appeal the changes, but there was a good reason. B remains out of education and the situation appears deadlocked. The Council has not given cogent reasons for the changes to B’s Plan, and has now agree to reinstate the provision and make a symbolic payment to recognise the education B has missed.
The complaint
Ms M complains about disruption to her son B’s education since June 2021. She says the Council ended B’s online learning without warning.
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) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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.
Once 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)
How I considered this complaint
I have considered information provided by Ms M and information provided by the Council.
I invited Ms M and the Council to comment on my draft decision.
What I found
B has an Education, Health and Care (EHC) Plan maintained by the Council. His primary special educational needs relate to chronic fatigue syndrome.
The Council issued B’s first EHC Plan on 18 January 2021.
Section I (placement) was blank.
Section F (provision/support) said, "Education otherwise than in a school (EOTAS) B will be educated online in a manner that is flexible according to his symptoms. When B re-joins mainstream education he requires 20 hours of teaching assistant support per week in a mainstream school based on full time attendance."
The Council arranged online learning for B. The Council ended online learning in June 2021 and proposed face-to-face tuition from September 2021 instead.
Ms M was unhappy with the proposed changes. She said B could not take part in face-to-face tuition and could only accept online learning. She complained the Council had not consulted on the proposed changes or amended B’s Plan.
In August 2021, the Council said it would review and update B’s EHC Plan. The Council held a review meeting in October 2021 and issued an amended EHC Plan on 26 April 2022.
Section I (placement) says B’s education will be EOTAS.
Section F (provision) says, "Education otherwise than in a school (EOTAS) B will be educated with a face-to-face learning package, in a manner that is flexible according to their symptoms. Number of hours learning dependent on how many GCSE's."
Unhappy with the outcome, Ms M complained to the Ombudsman. B remains out of education.
Education, Health and Care Plans: the law A young person with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the young person’s special educational needs and the provision required to meet them.
The procedure for assessing a young person’s special educational needs and issuing, and amending, an EHC Plan is set out in legislation and Government guidance.
Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the young person. (Children and Families Act 2014, section 42) The Ombudsman’s role is to check the Council followed the relevant law, regulations and guidance and arranged for provision to be made.
Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision in their child’s Education, Health and Care Plan. If the parent appeals, the Council should not change the provision until the Tribunal has made its decision.
Consideration B’s 2021 EHC Plan Section F of B’s 2021 EHC Plan said he would be educated online in a manner that was flexible according to his symptoms.
The Council had a duty to arrange the special educational provision in section F.
The Council can only change an EHC Plan after a review or reassessment. Regulations set out the process the Council must follow. It must notify the parent of the proposed changes and invite them to comment. It must then issue an amended Plan. Parents, and pupils, have a right of appeal if they disagree with changes in the amended Plan.
The Council stopped providing the special educational provision in Section F, the online learning, in June 2021. It did not issue B’s amended EHC Plan until April 2022. The Council should not have stopped online learning until it had amended B’s EHC Plan. Ending the online learning before amending the Plan is fault. B appears to have been without online learning for two terms as a result.
B’s 2022 EHC Plan Section F (provision) of B’s 2002 EHC Plan says he will be educated “with a face-to-face learning package.”
Ms M says B cannot take part in face-to-face tuition and can only accept online learning.
When there is disagreement, parents and pupils may appeal to a specialist Tribunal. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
Ms M could have asked the Tribunal to specify online learning in section F of B’s EHC Plan. The Tribunal would then have decided whether this was appropriate.
However, Ms M is now out of time. Her last opportunity to appeal was when the Council issued B’s amended Plan in April 2022. Appeals must be lodged within three months.
The Council told Ms M about her right of appeal when it sent the 2022 EHC Plan, although Ms M says she never received the final Plan.
The Ombudsman would not normally consider a complaint where a parent had a right of appeal and it would have been reasonable to have used it.
I understand another of Ms M’s children was very ill at the time and receiving treatment in hospital. In the circumstances, I have decided to consider Ms M’s complaint about the decision to replace online learning with face-to-face tuition in B’s EHC Plan.
I invited the Council to explain its decision. The Council said online learning ended in June 2021 when B reached the end of his secondary education. The Council said it decided on face-to-face tuition from September 2022 "to promote progression towards B's aspirations." It had asked Ms M about B's plans in April 2021. Ms M said he wanted to complete his GCSEs, then take A-levels and go on to university.
These reasons for changing B’s special educational provision do not relate to changes in B’s special educational needs or the symptoms of his chronic fatigue syndrome.
While the Ombudsman cannot determine B’s special educational needs or the provision he requires, I do not consider the Council has given cogent reasons for changing his provision from the online learning it previously decided was necessary to face-to-face tuition. This is fault.
The current situation At present, discussions between Ms M and the Council about B’s education appear deadlocked. The Council has offered face-to-face tuition, but Ms M says B can only accept online learning. I understand the Council invited Ms M to provide additional medical evidence so it could consider ‘medical needs’ tuition, but Ms M said she had provided all the evidence she had. Meanwhile, B remains out of education.
Agreed action
We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
Where a young person has missed education, we may recommend a symbolic payment of between £200 and £600 per month. We take account of any special educational needs the young person has, whether any alternative provision was arranged, and whether additional provision can remedy some or all or the loss.
The Council should not have stopped online learning before it issued B’s amended EHC Plan on 26 April 2022. Online learning should have continued until the Council issued B’s amended EHC Plan. As a result of the Council’s decision to end online learning with nothing agreed to take its place, B was without education for two terms.
Ms M could have appealed the April 2022 amended Plan, but her family circumstances at the time made this difficult and she did not. I think it likely she would have appealed if her family circumstances had allowed. If she had appealed, the Council should have continued to provide online learning until the Tribunal decided her appeal.
Ms M did not appeal, so I have considered the changes to B’s EHC Plan. The Council did not provide cogent reasons for the changes. I am, therefore, taking the unusual step of recommending the Council reinstate online learning for B. In other words, the Council should revert to the provision specified in B’s 2021 EHC Plan.
If the Council remains of the view that online learning is no longer appropriate, I recommend it follows the procedure in the Regulations to review B’s EHC Plan and issue an amended Plan. If Ms M disagrees with any proposed changes, it is imperative she uses her right of appeal to the Tribunal. Support may be available from the local parent partnership. If Ms M chooses to appeal, the Council should, of course, maintain online learning until the Tribunal has considered her appeal.
This is as close as I can get to putting B back in the position he would have been in if there had been no fault by the Council.
I also recommend the Council makes a symbolic payment of £2,500 to recognise the disruption to B’s education caused by ending online learning before amending his EHC Plan.
The Council accepted my recommendations.
Final decision
The Council accepted my recommendations, so I have ended my investigation.
Investigator's decision on behalf of the Ombudsman