The Ombudsman's final decision
Summary: Ms B complained that the Council delayed in providing an amended Education, Health and Care Plan following an annual review in January 2023 and failed to provide suitable alternative education during this period or deal with her complaints in an effective or timely manner. We found fault with the Council’s actions. The Council has agreed to pay Ms B £2000 for the loss of C’s education and £400 for her own distress and time and trouble.
The complaint
Ms B complained that Somerset Council (the Council) failed to provide a final amended Education, Health and Care (EHC) Plan for her son, C, since the annual review took place in January 2023. It also failed to provide suitable alternative education for him during this period, delayed in responding to Ms B’s complaints about this and failed to provide any resolution or remedy for the situation. This has caused and continues to cause, Ms B significant distress and frustration and C has missed out on essential education and social opportunities.
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) 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) 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)
What I have and have not investigated I have investigated the period up to 15 January 2024, for the following reasons: The courts have established that if someone has appealed to the Tribunal, the law says we 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 that 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 EHC Plan, 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.
How I considered this complaint
I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
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 found
Special educational needs 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.
Reviewing EHC Plans The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
Alternative provision of education Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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)) Available and accessible The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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) Focus report We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Out of school, out of sight? published July 2022 Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.
What happened Ms B’s son C has a number of health conditions which affect his ability to attend school. He has an EHC Plan which in February 2021 named his current mainstream school. He struggled to attend the school due to anxiety and had been on a reduced timetable since September 2021 attending three afternoons a week in addition to two days at an alternative provision. Ms B had home-schooled him for several years due to his poor experience at a previous school. She said he needed one-to-one tuition and was self-harming at home due to his distress at attending school.
An educational psychologist from the Council assessed C during a school visit in October 2022 and produced a report on 2 November 2022 making some recommendations to improve C’s attendance, including remote lessons. At the beginning of December 2022, the school held an attendance meeting. C was currently attending for two afternoons a week in addition to the alternative provision. The Child and Adolescent Mental Health Service (CAMHS)had recommended the Family Intervention Service get involved in the case and Ms B suggested home-schooling. At this point the school believed it could meet C’s needs.
C’s paediatrician sent a letter in January 2023 as part of C’s annual review, saying that she was not willing to sign C off school due to medical reasons because he did not have a medical condition which prevented him from taking part in education, but rather neuro-atypical development problems which means he can struggle in a school environment. They suggested that the situation needed to be reconsidered at the annual review to find a way in which C can access education which he both enjoys and needs.
The annual review was held on 26 January 2023. The school had tried the Educational Psychologist’s suggestions, but C’s attendance had reduced further. He was only attending school for drama therapy on one afternoon in addition to the two days placement at the alternative provision which he continued to enjoy. Ms B said he needed 1:1 tuition and requested a change of placement, ideally a package of Education Other Than At School (EOTAS) involving the alternative provision and tuition at home or in an off-site venue.
The Council received the annual review papers in February 2023 and the school held another attendance meeting. Ms B said again she wanted an alternative placement, preferably EOTAS. C said he would not attend any school anywhere for more than two hours per week. The Family Intervention Service had been involved but C was not willing to engage in any of the suggested activities. C had not accessed any remote or planned lessons for the past six weeks apart from drama therapy.
At a social care meeting in March 2023 Ms B said that C’s mental health had improved since he had stopped trying to attend school and her relationship with him had improved. Ms B said home-schooling was no longer an option even though C expressed a preference for a combination of home-schooling and the alternative provision.
Ms B complained to the Council about the delay in amending the EHC Plan following the annual review. On 6 April 2023 the Council said the amended EHC Plan would be delayed until June 2023 due to staff shortages.
The Council send out an amendment notice and draft EHC Plan on 8 June 2023 saying it intended to name the current school with an EOTAS package. Ms B was unhappy because the proposed plan still said that C could cope in a class of 15 children.
The Council responded to Ms B’s complaint on 9 June 2023 apologising for the delay, saying staff shortages were to blame. Ms B escalated her complaint on 22 June 2023, saying the delays were continuing and C did not have a placement.
Two further social care meetings were held in June and July 2023, but the SEN team did not attend.
In July 2023 the paediatrician sent a further letter confirming C’s struggles and anxieties with leaving the house and attending school. They requested a reasonable adjustment to allow him to attend education.
In August 2023 the Council refused Ms B’s request for EOTAS, saying it needed to establish that no setting could meet C’s needs. The SEN manager questioned why the school could not meet C’s needs and asked questions about what support had been tried. She suggested a multi-disciplinary team meeting in September and the involvement of the education engagement service (this service had been involved in July 2023).
On 28 September 2023 the Council responded to Ms B’s complaint at stage 2. It apologised again for the continuing delays which it said were due to C’s caseworker leaving. It said Ms B had the option to appeal against the named placement following the last EHC Plan if she was unhappy, and the Council was still considering the option of EOTAS. It also apologised for the significant delays in dealing with her complaints. But it offered no remedy.
In early October 2023 C’s case worker left. Another caseworker was allocated and instructed to finalise the draft EHC Plan and confirm that EOTAS was being refused as the school could meet C’s needs when he attended.
The Council sent the final EHC Plan to Ms B on 16 January 2024 naming C’s current school. Ms B appealed against the content of the Plan including the named placement.
Analysis Delay following the annual review The Council received the annual review paperwork at the end of February 2023. It should have notified Ms B within four weeks (by the end of March 2023) of its intentions with regard to the EHC Plan. It did not send a Notice of Amendment and draft EHC Plan until June 2023 and only issued the final amended EHC Plan in January 2024, almost a year after the annual review was held. This was fault which caused C to miss out on education and delayed Ms B’s opportunity to appeal against the final plan and secure an alternative placement.
I also note the communication with Ms B was very poor throughout the whole period. There was no SEN presence at key social care and attendance meetings so a thorough consideration of all the options was not possible. The SEN team gave contradictory information about the possibility of EOTAS, initially saying it was going to name this in the plan then refusing it completely after management intervention in August 2023. This was very late in the day particularly as the manager was raising the same questions that had been considered since the annual review in January 2023. I also have not seen any written evidence that the school named in the EHC Plan believes it could meet C’s needs or that any other placement options were consulted. However, this issue will be explored as part of the appeal process.
Alternative provision The Council knew in November 2022 at the latest, that C was only attending one afternoon of school and nine hours a week of the alternative provision. This was confirmed at the annual review in January 2023.
However, the Council did not assess whether this provision was sufficient or whether he could cope with more despite Ms B repeatedly requesting an alternative placement or ideally an EOTAS package. C’s paediatrician said C was not medically unfit for education but did struggle within a school environment, indicating he could cope with education in the right environment. There is no evidence the Council considered any alternative tuition options throughout this period. This was fault which meant C missed out on essential education and Ms B experienced distress and frustration.
Complaint-handling The Council took three months to respond to the stage one complaint acknowledging the delay but offering no remedy for the missed education and delayed EHC Plan. The Council took a further three months to respond to Ms B’s stage two complaint This was fault which caused meant Ms B significant frustration and time and trouble in complaining to us.
Agreed action
In recognition of the injustice caused to Ms B and C, I recommended the Council: Within one month of the date of my final decision: provides an effective apology to Ms B and C; and pays Ms B £2000 for the benefit of C (representing two terms of a lack of alternative provision/full-time education) and £400 for herself.
The Council has agreed to this and should provide us with evidence it has complied with the above actions.
In terms of service improvements, I note we have asked the Council twice in the past two years (November 2023 and May 2024) to remind officers of the duty to consider alternative provision when a child is out of school for health reasons or otherwise and review its procedure in this respect. As the second recommendation is very recent, I will not add another service improvement recommendation but would ask the Council to actively engage with our recommendations in this area to ensure improvements are made.
I also note we have made several recommendations in the past few months about adhering to statutory timescales for assessments and reviews of EHC Plans and producing an action plan to address staff shortages and achieve improvements in this area. So, I will not include a service recommendation here.
In respect of complaint delays, a result of a complaint to us the Council recently provided a presentation to relevant staff dealing with complaints about special educational needs, on the importance of keeping to the published complaint response timescales. Again, I see no need to repeat a recommendation on that point here but hope the recent interventions are effective.
Final decision
I consider this is a proportionate way of putting right the injustice caused to Mrs B and Mr C and I have completed my investigation on this basis.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman