The Ombudsman's final decision
Summary: Mrs X complained the Council failed to provide her son, Z, with either a suitable general education or the provision in his Education, Health and Care (EHC) Plan and did not consult with schools after Z’s school said it could not meet his needs. Mrs X says this caused Z to miss out on education which disadvantaged him. The Council’s duty to act to provide Z with a suitable education did not arise because a school place remained available to him. The Council was at fault for delays in sourcing support to meet Z’s social needs between September 2021 and March 2022. It has agreed to pay Mrs X £500 to remedy this. It was also at fault for the delays in issuing Z’s final amended EHC Plan, failing to consider whether Z’s needs required reassessing and for how it handled the 2022 annual review of Z’s Plan. However, this did not cause Mrs X or Z a significant injustice.
The complaint
Mrs X complained the Council: from June 2021 to March 2022, failed to provide the provision named in her son, Z’s, Education, Health and Care (EHC) Plan; and from June 2021 to March 2022, failed to provide him with a suitable education.
Mrs X said that as a result, Z missed out on the education and support he needed and has become socially isolated. She has been caused distress and frustration and has been financially disadvantaged because she has been unable to work since Z stopped attending school.
The Ombudsman’s role and powers
When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 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.
How I considered this complaint
I spoke to Mrs X and considered her view of her complaint.
I made enquiries of the Council and considered the information it provided.
I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
The law and statutory guidance Duty to provide a suitable education Under section 19 of the Education Act 1996, councils must arrange suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, would not receive a suitable education without such provision. This should be full-time unless this would not be in the child’s best interests.
However, the duty does not apply simply because a parent refuses to send a child to the educational provision. (R(R) v Kent County Council [2007] EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “otherwise” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question…” The statutory guidance ‘Special educational needs and disability code of practice’ also says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
Special educational provision A child with special educational needs 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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to investigate complaints or concerns that provision is not in place at any time.
Reviewing and amending EHC plans The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
An EHC Plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for 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 at the latest in the calendar year of the transfer into or between schools. The key transfers include primary school to secondary school.
Within four weeks of the annual review meeting, the Council must issue the parent with a decision notice informing them of whether it intends to cease or amend the Plan or keep it the same. If the Plan needs amending, the Council should start the process without delay. This includes asking the parents or young person for their comments.
Following comments from the parents or young person, the Council must complete the process and issue a final amended Plan as quickly as possible and within eight weeks of the original amendment notice.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. 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.
Reassessments Councils must carry out a re-assessment of a child or young person’s EHC needs if a request is made by the child’s parent or the school. A council can refuse a request if less than six months have passed since the last EHC assessment.
What happened Z has a diagnosis of a number of conditions and experiences anxiety. He has had an EHC Plan since 2019. He used to attend a mainstream primary school but in November 2020, the Council amended his Plan to name a special school (School B) as his educational placement. The Plan included outcomes around socialising with his peer group, adult support in the playground and small group work with his peers. Z’s Plan also included support around teaching interventions including daily literacy, language, reading and handwriting support and weekly PE activities.
Information from School B shows that when Z was in Year 5, after returning to school following the COVID-19 lockdown, Z’s attendance started to fall and by the summer term, he was refusing to attend on many days. At the beginning of June 2021, he stopped attending school.
On 24 June an emergency annual review meeting was held with Mrs X and School B.
School B’s report from the review stated Z’s EHC Plan should be amended as the school was finding it challenging to continue to meet Z’s needs within the current support arrangements. The report went on to talk about the challenges of getting Z into school which meant he often did not attend for a full day. The school said Z needed specialist and also greater 1:1 support to meet his needs to be able to sustain the school placement.
Mrs X specified three primary schools which she thought might be able to meet Z’s needs. The Council agreed to consult with them as well as another three schools.
On 12 July, a Council officer contacted Mrs X and said the Council would consult with other primary schools to find a new placement for Z. The Council consulted with eight special schools but none of the schools offered Z a place.
In September 2021, Z became a Year 6 pupil. He did not return to school. As a result, on 20 September, School B contacted Mrs X and said it had sourced a tutor who had agreed to provide two hours tutoring a week.
Also in September, a Council officer contacted Mrs X and said none of the schools it had consulted had offered Z a placement. The officer said Z would remain on roll at School B.
On 21 September, Mrs X says School B contacted the Council and asked it to carry out a reassessment of Z’s needs. The Council did not reply.
Z’s tutoring began on 27 September. Mrs X said it went well although she had to be present at all times to ensure Z remained online.
On 20 October Mrs X met with a Council officer to discuss Z’s educational provision.
On 1 November, the Council sent Mrs X a notice that it intended to amend Z’s EHC Plan. This was in relation to the emergency review held the previous June.
Around that time, Mrs X also received the paperwork for Z’s move to secondary school in September 2022. This asked her to name her preferred placement. Mrs X named secondary school S and returned the paperwork the following day.
On 12 November Mrs X asked the Council to consult with primary school P as she wished to move Z from School B for the remainder of Year 6. The Council agreed to consult with primary school P.
On 17 November Mrs X had a virtual meeting with School B and a Council officer. Mrs X said the Council officer requested an increase in tuition. Following this, on 29 November, Z’s tutoring increased to four one hour sessions a week. Towards the end of December, the Council informed Mrs X that primary school P had responded to say it could not offer Z a place.
On 4 January 2022, the Council informed Mrs X secondary school S had also refused Z a placement.
On 31 January Mrs X contacted the Council. She says it told her it was not consulting with any more primary or secondary schools.
Mrs X complained the same day about the matters listed in paragraph 1 of this decision statement.
On 4 February Mrs X called the Council who said School S had now agreed to accept Z if it would put additional funding in place.
School B issued the papers for Z’s annual review on 23 February. The review meeting was held two days later on 25 February.
The school and Z’s tutor attended the meeting with Mrs X. Parental feedback reported tutoring was going well and at a pace Z could cope with. Mrs X states she asked for face-to-face interventions in order to build up Z’s engagement.
The Council issued Z’s final amended EHC Plan later in February. This continued to name School B and named School S from September 2022 when Z moved to secondary school. Special educational needs provision centred around Z being in school.
The Council responded at stage 1 of its complaints procedures later in February. It noted Mrs X’s frustrations but said a placement at School S had been identified for Z if the additional funding was agreed.
The Council agreed to the additional funding shortly after.
In March, School B sent Mrs X a letter. This said “As [Z] is on role his place… remains open to him… The school would be able to offer a provision to meet his needs as stated in his plans if he were attending the setting… you have assured Z that he would not return to [us] however despite this, his place in the class and resources that support that remain available”.
Mrs X asked for her complaint to be escalated. The Council responded at Stage 2 and said it had consulted with eight special schools between July and December 2021 but none felt they were suitable for Z or were full with no additional capacity.
During my investigation, I asked the Council to comment on Mrs X’s statement that she requested the Council fund a part-time placement at a teacher-run farm in order to deliver some of the provision around socialisation in Z’s EHC Plan. The Council informed me it did not receive a request from Mrs X for this.
The Council also stated that since April/May 2022, School B has offered Z alternative arrangements such as therapy intervention, swimming lessons and sessions at a different farm to the one Mrs X requested. The Council said Mrs X was keen to take up the offer of swimming lessons, but she wanted them to be held somewhere closer to home. The Council said Mrs X decided not to pursue the farm option because she did not wish to overwhelm Z.
My findings
The EHC Plan process, including annual reviews The school held an emergency annual review in June 2021. The Council issued a decision notice to amend Z’s Plan in November. This was a delay of around four months and is fault.
The Council then failed to take any further action to issue a final amended Plan. However it did carry out consultations with Mrs X’s preferred alternative primary schools following the annual review. It also consulted with a further primary school and a secondary school whilst Z was in Year 6. There was no fault in the consultation process.
Events were overtaken by Z’s scheduled annual review in February 2022. The Council was responsible for ensuring the papers for this were issued 15 days before the meeting was held. The papers were issued two days prior to the review meeting. This is fault.
However, Mrs X was able to submit her comments and she attended the meeting. Therefore, this did not cause her a significant injustice.
Following this, the Council issued Z’s final amended Plan the same month. There is no record the Council sent Mrs X a copy of the proposed amendments. It also did not give her the opportunity to comment on the proposed changes. This is fault.
The Council delayed significantly in finalising Z’s final amended Plan and it did not follow the statutory procedures during the annual review process. The delays meant Mrs X’s right of appeal to the SEND Tribunal were delayed, although any injustice arising from this is mitigated by the fact she chose not to appeal. It is also unlikely for the same reasons that Mrs X was caused a significant injustice by the Council’s failure to follow the statutory procedures during the annual review process. If she was unhappy with the final amended Plan issued in February 2022, she had the opportunity to lodge an appeal with the SEND Tribunal.
Reassessment of Z’s needs In September 2021, School B contacted the Council to request it carry out a re-assessment of Z’s EHC Plan. The Council’s failure to respond is fault. I cannot say what the Council would have decided but if it refused the request, Mrs X would have been able to appeal to the SEND Tribunal. Those same appeal rights arose in February 2022 when the Council issued Z’s final amended EHC Plan. Mrs X did not appeal. Therefore, I do not consider she experienced any significant injustice from her appeal right being delayed.
Provision of a suitable education under s19 of the Education Act Councils must intervene and provide education under their Section 19 Education Act duty if no suitable educational provision has been made by the school for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
However, case law has stated that whether the duty applies is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question”.
School B did not at any stage state it could not meet Z’s needs. Prior to the emergency review in June 2021, it stated it found meeting Z’s needs “challenging” with the current SEN support. However, because Z stopped attending from that date, any possible action by the Council was stalled. A letter from School B to Mrs X in March 2022 stated Z remained on roll and the school was confident it was able to meet his needs. And during the period Z was out of school, School B arranged for alternative provision to ensure he was not without any education.
Therefore, I consider the Council met its s19 duties under the Education Act because there was always a school place available for Z that could meet his needs.
Provision of the support in Z’s Education, Health and Care Plan The Council was also under a duty to ensure the provision in Z’s EHC Plan was secured and delivered.
School B requested additional support to help manage Z’s SEN in June 2021. However, the school remained confident that it could provide the support specified in his Plan, albeit with additional or different resources to encourage him to attend.
School B put tutoring in place from the end of September 2021. It was initially for two hours a week and this rose to 4 hours at the end of November. Mrs X said that this was at a level that suited Z because he would struggle to participate in online study for any longer than that. However, Mrs X felt Z could manage to learn for longer if the tuition had been in-person.
It is likely the tutoring met some of the educational provision in Z’s Plan and because it was 1:1 provision, Z would have benefitted more than if he was in a larger class. But the tutoring was unable to meet any of the provision in Z’s Plan which was designed to develop his social skills. However, that support was available within School B, where Z remained on roll.
The Council did offer some alternative education to help meet Z’s needs around socialising but this was not until April/May 2022, towards the end of the school year. The Council should have acted more promptly and its failure to do so was fault.
As a result, Z did not receive all the provision in his Plan.
It is not for the Ombudsman to say whether the support Mrs X provided was a suitable substitute for the provision related to social skills listed in Z’s Plan. Instead, our Guidance on Remedies states that where fault has resulted in a loss of provision, we will recommend a payment to acknowledge the impact of this loss. I have recommended a payment for the missed provision below.
Agreed actions
Within one month of the date of the final decision the Council has agreed to pay Mrs X £500, to use as she sees best to benefit Z, to remedy the provision he missed in his EHC Plan for the period September 2021 to April 2022.
Final decision
There was fault leading to injustice. The Council has agreed with my recommendations and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman