Summary: The complainant (Miss X) said the Council failed to safeguard her son (Y), to comply with the statutory timescales for Education Health and Care (EHC) plan reviews, to provide Y with suitable alternative education, to arrange transport for Y to his new school from the beginning of the autumn term 2022 and to communicate adequately with Miss X and Y’s school. We found fault with the Council in most of the issues raised by Miss X. Some of these faults caused Y and Miss X injustice. We did not find fault with the Council’s safeguarding. The Council agreed to apologise and make symbolic payments to remedy the injustice caused to Y and Miss X.

The complaint

1. Miss X says the Council failed to:
• Act on the safeguarding issues raised during Y’s EHCP Annual Review in November 2021;
• Comply with the timescales following the latest Annual Review;
• Find a suitable school placement for Y;
• Provide Y with suitable full-time education since December 2021;
• Make transport arrangements for Y from the beginning of September 2022;
• Communicate with Y’s new school;
• Communicate with Miss Y since August 2022.
2. Miss X says the Council’s failings affected Y’s mental and physical health. Miss X says her own mental health declined and as a single mother she struggled to meet the needs of her three children, two of whom have special educational needs (SEN). She spent much time contacting the Council and complaining and felt much of her effort was wasted.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate complaints about what happens in academies, as they fall outside our jurisdiction. However, we can investigate the actions taken by councils to arrange special educational needs provision for children in academies.
6. 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)
7. 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)
8. 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.

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What I have and have not investigated

9. As explained under paragraph six of this decision we would not normally investigate anything that happened more than 12 months before the complainant came to us. Miss X raised her complaint with us in March 2023. I have decided to extend my investigation by a few weeks to November 2021 as I consider there are good reasons for doing so. Miss X complained about several issues and some of them would be difficult to investigate without looking at what happened in November 2021 and in the following months. Moreover Miss X’s delay in bringing her complaint to us was not significant.

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How I considered this complaint

10. I considered the information Miss X provided.
11. I made enquiries with the Council and considered the information it provided.
12. I reviewed the Council’s ‘School and College Transport policy 2022 to 2023’, revised in May 2020 and referred to our Focus Report ‘Out of school, out of sight?’ issued in July 2022 and our Focus Report ‘Out of school, out of mind?’ of September 2011, amended in January 2016.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Safeguarding

14. Schools, colleges and other educational settings must have regard to statutory guidance Keeping Children Safe in Education, including the guidance on how to fulfil their duties in respect of safeguarding and promoting the welfare of children in their care. In maintained schools these duties are owned by their governing bodies. (‘Working Together to Safeguard Children’ a guide to inter-agency working to safeguard and promote the welfare of children, July 2018 paragraphs 11 and 13)

Annual Review

15. The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHCP at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHCP as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHCP;
• In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)

Alternative education and delivery of SEP

16. 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.
17. 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)
18. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
19. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)

Providing school transport

20. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. (Education Act 1996, 508B(1) and Schedule 35B)

Communication

21. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))
22. When exercising their duties for children and young people with special educational needs and disabilities (SEND) councils must cooperate with schools, academies, post-16 institutions and any other person that makes special educational provision for a child or young person for whom the council is responsible. (Children and Families Act 2014 section 28)

What happened

Background

23. Y is 15 and has had an EHC plan since 2018.
24. Y moved to a special secondary academy for children with social, emotional and mental health difficulties (School 1) in September 2019.

Process following the Annual Review in November 2021 (Annual Review 1)

25. At the end of November 2021 School 1 held an Annual Review meeting for Y. During this meeting Miss X said Y did not want to attend School 1 because he did not feel physically safe there. Miss X asked for a change of placement as she considered School 1 was not a suitable setting for Y. Although Miss X believed the Council should reassess Y’s EHC needs, she did not want to delay finding a new placement and arranging support for Y to catch up with his learning. School 1 confirmed it could not meet Y’s special educational needs (SEN).
26. At the beginning of December Miss X complained about the Council’s failing to:
• deliver special educational provision (SEP) to Y on the one and a half days a week he was not attending School 1;
• ensure a review of Y’s progress;
• ensure suitable support at School 1.
27. During the telephone conversation which preceded its formal response, the Council told Miss X it had already started the process of changing Y’s school placement. The Council responded to Miss X’s complaint two weeks later. The Council said it was aware of the staff shortages caused at School 1 by the pandemic and had taken steps to ensure School 1 remained open. The Council told Miss X to address her concerns about Y’s safety and communication directly with School 1.
28. In the third week of December Miss X contacted the governing body of School 1. The governing body liaised with School 1’s safeguarding staff and asked to be told about progress of the investigation of Miss X’s concerns.
29. Following an incident at School 1 Miss X also contacted the Police who advised her to raise this with School 1.
30. At the end of December the Council recognised Miss X’s concerns about Y’s safety at School 1 and her wish for him to move to a different school. The Council said it would follow the process for a change of placement.
31. The Council told School 1 of Miss X’s request for a change of placement at the beginning of January 2022. Miss X did not wish Y to return to School 1 in the spring term of 2022. The Council asked School 1 for the Annual Review documents which would allow it to start amending Y’s EHC plan.
32. In the second week of January the Council referred Y for interim home tuition. The Council accepted School 1 was not a suitable educational setting for Y and intended to provide Y with home tuition until a new school was found for him.
33. Over a week later School 1 removed Y from its roll.
34. The Council contacted Miss X to let her know it was chasing School 1 for the Annual Review report which would allow making amendments in Y’s EHC plan and consulting with schools.
35. Two weeks after Y’s referral for interim home tuition, Y’s tutor carried out a first visit.
36. In mid-February the Council issued a letter with its decision to amend Y’s EHC plan. Three weeks later it sent Miss X the proposed amendments.
37. Miss X was not happy with the amendments proposed by the Council. In mid-March she named the school (School 2) she wanted Y to attend. At this stage the Council approached 11 special schools, including School 2.
38. At the end of March School 2 responded to the Council’s consultation but did not offer Y a place. There were no offers from other schools.
39. At the end of April Miss X contacted the Director of Children’s services about the Council’s failings to comply with the Annual Review statutory timescales by not sending her the Council’s decision following the Annual Review in November 2021. Miss X explained the negative impact on Y of not attending a school. She also complained about the limited educational provision for Y which amounted to six hours of tutoring per week. A few days later Miss X lodged a formal complaint.
40. The Council told Miss X it had already issued a letter with its decision to amend Y’s EHC plan and an amendment notice. It said it would re-issue these documents and send them to Miss X altogether with the Annual Review report received from School 1.
41. From the beginning of May the Council started consultations with independent and non-maintained educational settings.
42. In the second week of May the Council issued a final EHC plan for Y, telling Miss X of her right to appeal.
43. Responding to Miss X’s complaint about the extent of alternative educational provision the Council said it was aware of Y’s difficulties in accessing education in the family home and would explore the possibility of providing tutoring in the community and increasing the hours.
44. In the third week of May one of the independent schools offered Y a place but Miss X did not consider it would provide Y with an appropriate academic challenge and prepare him for General Certificate of Secondary Education (GCSE) exams.

Process following the Annual Review in July 2022 (Annual Review 2)

45. At the beginning of July the Council started reviewing Y’s EHC plan to update it in preparation for a new school placement. In the amendment notice sent to Miss X a day after the review meeting the Council proposed Y would be supported in his transition to a new school by a learning mentor.
46. In mid-July an initial meeting with a home tuition learning mentor took place but this did not lead to any further involvement.
47. Miss X contacted the Council with some proposed amendments to Y’s EHC plan at the beginning of August. She also asked about the result of the Council’s consultation with a technical college (School 3).
48. In mid-August the Council told Miss X it would name School 3 in Y’s EHC plan which, it said, would be finalised by the end of the week.
49. Y started attending School 3 at the beginning of September. At the same time Miss X complained about the lack of a final EHC plan for Y.
50. In December School 3 asked Miss X for the contact details of Y’s special educational needs and disabilities (SEND) case officer.
51. The Council issued Y’s final EHC plan in the second week of March 2023 and sent Miss X a letter advising her of her appeal rights.

Transport to School 3

52. On 8 August 2023 Miss X applied for transport for Y to School 3. On the same day the transport team asked the SEND team for confirmation that School 3 is named in section I of Y’s EHC plan.
53. The Council’s deadline for transport applications for September 2023 was 16 August.
54. A day after the deadline, with no response received, the transport team contacted the SEND team again. On the next day the SEND team confirmed the Council decided to name School 3 for Y.
55. At the end of August Miss X’s application for transport for Y to School 3 was approved.
56. On 5 September Miss X contacted the Council stating Y had not been provided with transport to School 3, despite Miss X sending her application well before the deadline. Miss X said she had tried to contact the transport team in the last few days but had received no help. She raised her difficulties in providing transport for Y and her other children whose school was in a different direction to Y’s.
57. The transport team explained it had not been able to process Miss X’s application until it got confirmation from the SEND team that School 3 was named in Y’s EHC plan. The transport team sent Miss X a travel expense form to claim petrol costs for taking Y to School 3 and bringing him back.
58. In mid-September Miss X told the Council she was very concerned about the lack of transport for Y and she had no information on when this would become available. She highlighted the negative impact on her and the whole family of having to provide transport to different schools for her three children.
59. The transport team asked Miss X about his finishing times and whether he needed a personal assistant for his travel to School 3. Following this exchange of correspondence the Council arranged transport for Y which started at the end of September.

Analysis

Safeguarding

60. I did not find fault with the Council in relation to safeguarding Y in School 1. The Council explained to Miss X she should raise any safeguarding concerns directly with School 1 which she did by contacting its governing body. School 1 started investigating Miss X’s concerns. This is the correct process and would not involve the Council at this stage. As mentioned under paragraph 5 of this decision we cannot investigate anything that happens in academies.

Annual Review timescales

61. When reviewing both Annual Reviews I found the Council delayed:
• Issuing its decision following Annual Review 1; the decision should have been issued at the end of December 2021. The Council issued it in mid-February which meant a delay of one month and a half. Although part of the delay seems to have been caused by School 1’s delay in sending an Annual Review report, the Council only started asking School 1 for this document after the statutory deadline for issuing a decision.
• Issuing a final EHC plan for Y following Annual Review 2; Y’s final EHC plan should have been issued at the beginning of September 2022. The Council issued it at the beginning of March 2023, which meant a delay of six months.
62. Both delays were fault, but only the second failing caused injustice to Y and Miss X. This is for the following reasons:
• The amendments to Y’s EHC plan issued in May 2022 were based on the Annual Review reports. There were no new professional reports or assessments. Therefore when looking for a new school placement for Y the Council could have used his previous EHC plan and the Annual Review documents, which would have given an updated picture of Y’s SEN and provision required to meet them. Besides Miss X did not appeal EHC plan issued in May 2022, so the delay in giving her appeal rights did not have a negative impact on her.
• The delay in issuing Y’s final EHC plan following Annual Review 2 caused injustice to Y and Miss X. Y started a new mainstream placement in September and it was particularly important that his EHC plan was up to date and included any agreed amendments. Without the amendments it must have been more difficult for School 3 to support Y adequately both during the transition and in the months that followed. This caused Miss X distress, especially when the Council told her at the beginning of August 2022 it would finalise Y’s EHC plan by the end of the same month.

Alternative education and delivery of SEP

63. In early January 2022 the Council accepted it had a duty to provide alternative education to Y after he stopped attending School 1. The Council made a referral a few days after receiving Miss X’s correspondence on the reasons for Y’s non-attendance at school. The first visit from the tutoring agency took place without any delays. I did not find any fault within this part of the process.
64. As explained under paragraph 16 the Council must ensure alternative education provided to a child who cannot attend school because of illness or otherwise is full-time unless it would not be in this child’s best interest. We would expect to see evidence of careful consideration given by the Council to the child’s specific circumstances, including any professional advice available.
65. After Miss X had complained that the educational provision for Y had been limited to six hours tutoring per week, the Council recognised Y found it difficult to access any education at home and said it would try to find the ways Y’s tutoring could be delivered in the community and extended. This never happened.
66. I have not seen any evidence the Council considered before mid-May 2022:
• whether Y could have accessed more education than six hours of tutoring per week, and
• whether there were other places Y’s tutoring could be delivered.
67. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, which followed the earlier report “Out of school…out of mind?” of September 2011, amended in January 2016. Both reports highlighted guidance for local authorities to reflect on their services and consider what improvements might be necessary, to ensure children who cannot attend school receive suitable full-time education.
68. In the most recent report we said: ‘Full-time education ranges from 21 hours per week at Key Stage 1 to 25 hours a week at Key Stage 4. If councils provide one-to-one tuition, the number of face-to-face hours could be fewer because the provision is more concentrated. But children are still entitled to a full-time education. Education provision must be based on an assessment of the individual child’s needs. The council should be able to demonstrate how it considered the child’s needs and decided what provision to make.’
69. There is no evidence the Council followed the process described above when deciding on alternative education for Y, which is fault. Considering Y’s full-time attendance at School 3 from September 2022 as well as his academic abilities mentioned in the correspondence between Miss X and the Council, on the balance of probabilities I consider that if the Council had followed the right process, Y would have received more education than six hours per week.
70. By not ensuring delivery of suitable alternative education to Y the Council also failed to deliver all the SEP specified in Y’s EHC plan. Some of Y’s SEP were school-specific and it would not be possible to deliver them through individual support. There were others, however, which required time and regularity that could only be achieved with the delivery of full-time or equivalent to full-time education.
71. The Council’s faults caused, therefore, injustice to:
• Y as for six months he did not receive suitable education and all the support identified in his EHC plan. This had a negative impact on his academic and personal development.
• Miss X as she was concerned about the impact of the limited educational package on Y. She spent much time contacting the Council and complaining. As a single mother she struggled to support her other two children, one of whom also had SEN.
72. I did not find fault with the Council’s consultations for a new school placement for Y. When in mid-March Miss X identified the school of her preference, the Council immediately consulted this school, as well as other special schools. Because of the legal framework when naming schools in children’s EHC plans, the Council needed to know the school of parental preference for Y. The Council sent consultations to non-maintained and independent schools after it had received no offers from the maintained special schools, which is what we would expect.

Providing school transport

73. The Council did not query Y’s eligibility for transport to School 3. The evidence shows its failure to make travel arrangements for Y before the start of the new school year was caused by inadequate communication from the SEND team. The SEND team responded after ten days, two days after the deadline for transport applications, despite receiving an urgent message from the transport team asking for confirmation that the Council agreed to name School 3 for Y.
74. The delay in providing a piece of information necessary to progress Miss X’s application is fault. If not for this failing it is more likely than not that Y’s travel arrangements would have been made on time.
75. The Council’s fault caused Y and Miss X injustice.
• For Y - the lack of transport added to the stress of starting a new placement;
• For Miss X – she had to manage taking three children, two of them with SEN, to different schools and coordinate the timings. This placed significant strain on her health and well-being and aggravated her mental health difficulties. Miss X spent much time contacting the Council, complaining and following up its responses.

Communication

76. In response to my enquiries about the prolonged lack of communication with Miss X and School 3 from the SEND team, the Council said:
• Y’s caseworker changed at the beginning of October 2022. Due to the high number of cases the SEND team could not individually tell each parent. The Council provided in the out of office message of the caseworker who left. an alternative email address for parents to contact;
• it was moving to an electronic system which would enable parents and carers to check the details of an assigned caseworker;
• Y’s new caseworker did not receive any contact from Miss X either directly or through the SEND team, therefore she was not aware Miss X wished to communicate with her. She only received one communication from School 3 about finances but no concerns were raised about Y.
77. I do not find the reasons given by the Council justify its lack of contact with Miss X and School 3. The Council should ensure the continuity of its services despite any changes in its staff. We would expect the Council to be monitoring a new placement for a child, especially when this child was out of school for many months prior to this placement and was moving from a special school to mainstream. Besides, it is inexplicable why throughout the autumn term 2022 the Council failed to contact Miss X about Y’s draft EHC plan, which should have been finalised by the beginning of September.
78. The Council’s failings to communicate with Miss X and School 3 are fault. This fault caused Miss X injustice as she felt unsupported and ignored.

Service improvements

79. We are aware the Council has recently started implementing a three-year transformation programme to improve its services. This programme includes staff trainings and changes in existing processes which, once fully in place, should prevent failings like the ones identified in this decision.
80. Moreover, in our recent decision with reference number 22010053 we have recommended the Council carries out some service improvements to address its failings in:
• communication between different teams;
• complying with the statutory timescales for the reviews of EHC plans;
• communication with its service users.
81. I have decided not to recommend any further service improvements. Through our casework we will monitor the effectiveness of the Council’s transformation programme and the long-term impact of the service improvements agreed for the complaint mentioned in paragraph 80.

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Agreed action

82. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X and Y for the injustice caused to them by the faults identified;
• pay Miss X £2,000 to recognise the negative impact on Y and her of the Council’s failing to deliver suitable alternative education for Y in the spring and summer terms of 2022;
• arrange a meeting for Miss X with Y’s SEND case officer. At the meeting Y’s SEND case officer will find out any outstanding matters Miss X wishes to resolve as well as any documents relating to Y she would like to receive from the Council. The Council will send us the meeting notes with a plan of action (what will be done, when and by whom);
• pay Miss X £1,000 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

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Final decision

83. I uphold most issues raised by Miss X. For the reasons explained in the Analysis section I found fault with the Council for the delays in the Annual Review processes, provision of suitable alternative education and delivery of special educational provision, making travel arrangements for Y to School 3 and the Council’s communication with Miss X and School 3. Some of these faults caused injustice to Y and Miss X. I did not find fault with the Council’s safeguarding. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman