Summary: Miss X complained the Council delayed her daughter, Y, starting at a school in September 2021. She said Y did not start until November 2021. Miss X also complained the Council delayed Y’s annual review and there were delays in the complaint process. Miss X said Y missed education and her Education, Health and Care Plan was not up to date to her needs. Miss X said she has been frustrated by the process and delay. There was fault in the way the Council did not provide Y with alternative education until she started school, delayed the annual review, delayed issuing an updated plan and did not complete the complaints process appropriately. Miss X was put to time and trouble to complain and was frustrated by the delay. The Council should apologise and make a financial payment.

The complaint

1. Miss X complained the Council delayed her daughter, Y, starting at a school in September 2021. She said Y did not start until November 2021. Miss X also complained the Council delayed Y’s annual review and there were delays in the complaint process. Miss X said Y missed education and her Education, Health and Care Plan (EHCP) was not up to date to her needs. Miss X said she has been frustrated by the process and delay.

Back to top

The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’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)
4. 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.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. I have exercised discretion to consider events in this case back to September 2021. I have seen Miss X complained to the Council about this matter in 2022. The Council’s complaint process has taken a considerable amount of time and this delayed Miss X complaining to the Ombudsman. Miss X complained to the Ombudsman in January 2023 and was sent back to the Council to complete the complaint process.

Back to top

How I considered this complaint

7. I read Miss X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Miss X and the Council.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

10. A child with special educational needs may have an Education, Health and Care Plan (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 can do this.
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.
13. The council has a duty to secure the specified special educational provision in an EHCP 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)
14. Where the Tribunal orders a council to amend an EHCP, the council shall amend the EHCP within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
15. The procedure for reviewing and amending EHCP is set out in legislation and government guidance.
16. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a council proposes to amend an EHCP, 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
18. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
20. 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.
21. 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)
22. 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)
23. 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”.
24. 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))
25. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
26. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
27. 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
28. The Council’s complaint policy confirmed it will acknowledge complaints within three working days and provide a full response within 20 working days. It also stated if a complaint raised complex issues that could not be answered within 20 working days, the Council would keep the complainant informed of progress until it could respond fully.

What happened

29. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.

Starting school

30. Y has complex additional needs. Miss X challenged the Council at the SEND Tribunal. She wanted the Council to name school B in Y’s EHCP. The SEND Tribunal heard Miss X’s appeal in late September 2021. The Tribunal decided the Council would name school B in Y’s plan. It determined Y should start attending immediately.
31. The Council issued Y’s EHCP 10 days after the tribunal and named school B. The plan detailed the review must take place by February 2022.
32. The Council wrote to school B to instruct it to admit Y immediately. School B wrote to the Council to say it could offer Y a place from November 2021. School B said it was at capacity. It said it would need to recruit staff and arrange a transition for Y.
33. Miss X communicated with the Council and school B throughout October 2021 and November 2021. School B detailed it would complete a transition process to support Y. Y started school B at the end of November 2021.

Annual review

34. School B arranged an educational psychologists (EP) report to inform the annual review. School B confirmed it had arranged for a new EP assessment in February 2022. School B advised it would delay the annual review.
35. In March 2022, school B rearranged the annual review for July 2022. Miss X was not happy with the delay.
36. Miss X met with school B in May 2022. School B agreed to complete Occupational Therapy (OT) and Speech and Language Therapy (SALT) assessments. The assessments would inform the annual review.
37. School B held Y’s annual review in July 2022. The review recommended the Council amend the EHCP.
38. Miss X complained to the Council in October 2022. She complained about the delay in Y starting school B and the delay in the annual review.
39. Miss X chased the Council for a response to her complaint in January 2023. She requested an acknowledgement of the annual review request to amend the plan. The Council confirmed the annual review recommended it should amend Y’s EHCP.
40. The Council issued the decision to amend the EHCP notice in February 2023.
41. The Council provided its stage one response at the end of February 2023. The Council apologised for the delay in Y starting at school B. It said school B determined Y needed a slow transition. The Council apologised for the delay in school B completing the annual review. Miss X was not happy with the Council’s response and asked it to escalate her complaint to stage two.
42. Miss X continued to chase the Council for a stage two response from March 2023 until the Ombudsman started this investigation.
43. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to financially compensate Y for the delays.
44. In response to my enquiries the Council stated the delay in Y starting at school B was to allow for a transition. The Council accepted it should have provided alternative education until Y started school.
45. The Council advised school delayed the annual review to assess Y’s needs fully. It said this was at Miss X’s request. The Council accepted the annual review should have been held in February 2022.
46. The Council acknowledged the issues its complaints team currently faced. The Council advised it continued to take action in response to an Ombudsman public interest report. The Council apologised for the frustration this caused.

My findings

Starting school

47. The Tribunal decision set out Y should start at school B immediately, at the end of September 2021. Y did not start school until the end of November 2021. The Council advised this was in Y’s best interest and enable a transition process.
48. The Council was aware school B could not offer Y a place until November 2021. The Council should have arranged alternative education for the nine weeks Y could not attend school B. This is fault and Y missed out on education.
49. The Council has accepted it should have arranged alternative education for the nine weeks Y missed while waiting for Y to start at school B.

Annual review

50. The Council delegated its responsibility for carrying out annual reviews to the school. School B delayed the annual review to enable it to complete EP, OT and SALT assessments. The Council stated this was at Miss X’s request, but accepted the annual review was late and it is responsible for this delay. This is fault and the plan was not up to date with Y’s needs.

Delay sending notification letters after annual review

51. The annual review in July 2022, confirmed the Council should amend Y’s plan. The Council did not issue its decision to amend until February 2023. Recent caselaw, R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin), confirmed when a Council proposes to amend an EHCP following a review, it must notify the parent or young person of the decision to amend and what the proposed changes are within four weeks of the review meeting. Miss X received an email from the Council seven months after the review, with an updated plan and amendment notice. I have seen the Council issued another EHCP in July 2023. The Ombudsman takes the view that Councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This frustrated Mrs X’s appeal rights to the send tribunal and Y’s plan was not up to date and may not have met her needs.
52. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
53. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because 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.

Complaint handling

54. Miss X submitted her complaint in October 2022. The Council did not respond until February 2023. This is more than the 20 working days set out in its policy. This is fault and caused Miss X distress, frustration and avoidable time and trouble.
55. The Council has not provided a stage two response, despite Miss X requesting it over six months ago. This is fault and caused Miss X distress and frustration.

Back to top

Agreed action

56. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X and Y for the delay in Y starting at school B, the delayed annual review and its complaint handling. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Miss X £200 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Miss X £200 as an acknowledgement of her frustration and distress in dealing with this matter.
• Pay Miss X £600 for not providing Y with any education for half an academic term. This money should be used for Y’s benefit.
• I would generally make a service improvement recommendation. The Ombudsman has already made service improvement recommendations on the issues raised in this matter, in other cases. We are actively monitoring the Council’s actions.
57. The Council should provide evidence of the actions taken to satisfy the recommendations.

Back to top

Final decision

58. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman