Summary: The Council was at fault for failing to properly consider or meet Mrs B’s daughter’s special educational needs over a three-year period. It was also at fault for failing to deliver suitable education to her while she was out of school for five months. It has agreed to apologise and make symbolic payments to recognise her injustice.

The complaint

1. The complainant, whom I refer to as Mrs B, complains about how the Council delivered special educational needs (SEN) provision to her daughter, whom I refer to as C.
2. The Council has already accepted wide-ranging failings in C’s case, including:
• taking too long to agree C’s SEN provision in 2018;
• failing to provide education for eight months C was out of school in 2019/20; and
• through its inaction, causing Mrs B to feel she needed to pay over £2,000 for a private psychological report on C’s needs.
3. We cannot look at the delay to SEN provision in 2018 because this is a standalone issue about which Mrs B could have complained to us earlier. And the Council has offered Mrs B satisfactory remedies for the other two matters.
4. However, Mrs B also complains that the Council failed to:
• deliver the SEN provision it was supposed to, or change the provision in line with C’s needs – despite numerous requests from Mrs B and successive schools – between 2019 and 2022; and
• deliver any education to C between November 2021 and April 2022 while she was out of school.
5. Mrs B says the Council’s failings caused C great distress and led to the breakdown of two separate school placements. She wants apologies for both herself and C, and she wants a financial remedy which fully recognises the Council’s mistakes.

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The Ombudsman’s role and powers

6. 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)
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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How I considered this complaint

9. I considered:
• information from Mrs B and the Council;
• the government’s code of practice for SEN and disability;
• the statutory guidance document, ‘Ensuring a good education for children who cannot attend school because of health needs’;
• relevant sections of the Education Act 1996 and the Children and Families Act 2014; and
• the Ombudsman’s guidance on remedies.
10. Mrs B 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

C’s special educational provision March 2019 – April 2022

What should have happened?

11. Education, health and care (EHC) plans are for children with SEN who need more help than a mainstream nursery, school or college can usually provide on its own. EHC plans identify a child’s needs and set out the additional support required.
12. Councils have a duty to secure the specified SEN provision in EHC plans. (Children and Families Act 2014, section 42)
13. The Ombudsman recognises that it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the SEN provision for every pupil with an EHC plan. But councils should be able to demonstrate due diligence in discharging this important legal duty, and, as a minimum:
• check the SEN provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
14. Within four weeks of a review meeting, a council must decide whether it proposes to keep an EHC plan as it is, amend the plan, or cease to maintain the plan, and must notify the child’s parent. If the plan needs to be amended, the council should start the process of amendment without delay. (SEND code of practice)

What happened?

15. The Council drafted C’s EHC plan in mid-2018 (just before she started high school) but did not finalise it until in March 2019. The final plan named her primary school (which she had already left), and much of the provision in the plan was designed to help her transition into high school (which she had already done).
16. In April 2019 C’s school raised concerns about the suitability of her EHC plan, which “[did] not reflect some of her underlying issues”.
17. In May 2019 C’s school reviewed her plan. Mrs B attended the review, and said she felt C’s EHC plan needed updating. She did not mention that the school had failed to deliver any provision in the existing plan.
18. The Council did not take any steps to amend the plan following the review, and did not communicate any decision about this to Mrs B.
19. In February 2020 C started at a new school and, in October, the school reviewed her plan. Nobody, including Mrs B, mentioned that the school had failed to deliver any provision in C’s EHC plan. The school did recommend that the plan be amended to reflect the change in placement and in C’s needs. However, again, the Council did not take steps to make any amendments, and did not communicate any decision about this to Mrs B.
20. C’s school reviewed her EHC plan again in November 2021. Again, it recommended the plan be updated because of significant changes to her needs and to the SEN provision the school was delivering.
21. Mrs B withdrew C from the school shortly afterwards, and, in December 2021, the Council began a reassessment of C’s needs for her EHC plan. It issued the new plan in April 2022.

My findings

22. The Council should monitor the delivery of SEN provision through annual reviews and by responding to complaints. But, from when the Council issued C’s EHC plan in 2019 until late 2021, Mrs B did not raise concerns about how successive schools were delivering the support set out in the plan. And nobody else raised concerns about this either. So it is not reasonable to expect the Council to have known there were problems in how the EHC plan was being delivered.
23. It is true that, by late 2021, C’s school was delivering different provision to that named in her plan. But that was reflective of a broader problem with C’s SEN provision, which was that the plan itself was not suitable for her needs. Even if C’s schools had properly delivered the EHC plan, it is likely her needs would still not have been met.
24. The Council has accepted it was at fault for failing to keep C’s plan updated in line with her needs. Given that C’s schools began raising concerns about the suitability of the plan as early as April 2019, but no changes were apparently even considered until December 2021 (or made until April 2022), it is reasonable to conclude that C probably did not receive proper SEN support for around three years.
25. I cannot say just how much SEN provision was missed. C did, however, receive full-time education and some SEN support for most of that three-year period. The exception was when she was out of school – and the Council has already offered Mrs B a satisfactory financial remedy for that.
26. Nonetheless, the remedies the Council has already proposed do not adequately recognise its failure to properly deliver SEN provision to C between 2019 and 2022.
27. It is unlikely, because of the passage of time, that the benefit of this support could now be recovered with the delivery of extra support. So, in line with our remedies guidance, the Council should make a symbolic payment to C which recognises the impact of its failure to properly meet her needs.

C’s education November 2021 – April 2022

What should have happened?

28. Councils must arrange suitable education for children who are out of school if they would not receive suitable education without such arrangements. ‘Suitable education’ means education suitable to a child’s age, ability and any special educational needs they may have. (Education Act 1996, section 19). We refer to this as a council’s ‘section 19 duty’.
29. The section 19 education provided by a council must be full-time unless it is not in the child’s interests. (Education Act 1996, section 3A and 3AA). The law does not define ‘full-time education’, but children with health needs should have provision equivalent to the education they would receive in school. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
30. If a council decides to reassess a child or young person’s EHC plan, it must complete this reassessment and issue a new EHC plan within 14 weeks of deciding to do so. (SEND code of practice)

What happened?

31. In November 2021, C’s school told the Council that it could not meet her needs. It said it was “not the right school for [C] … We do need to be thinking very quickly about an alternative provision for [C] which can more effectively meet her needs”.
32. At that point, Mrs B had withdrawn C from the school. The Council offered to arrange a home tutor if Mrs B did not want C to return.
33. In early December, Mrs B accepted the Council’s offer of a tutor for C. The Council also told her it was going to reassess C’s needs for her EHC plan.
34. A fortnight later, and after Mrs B had chased the matter twice, the Council told her it had found a tutor for 15 hours a week, to begin in January. It said the tutor was very experienced at working with children with SEN. Mrs B said the tutoring should be a minimum of 25 hours a week and should include SEN provision. The Council said tutoring would start with 15 hours but could be reviewed.
35. Mrs B then spoke to the proposed tutor, who did not know about C’s needs or abilities, and had been planning GCSE preparatory work (something which was too advanced for C). Mrs B told the Council she was unhappy with the tutor. The Council cancelled the tutor and asked the agency to find a new one.
36. The Council found another tutor in early January 2022. It told Mrs B he was ‘extremely experienced’ and knew about C’s needs. It also agreed funding for 25 hours of tuition. However, when C met the tutor she did not want to work with him, and he was unable to visit the family home without another adult present anyway – something which Mrs B wanted so she could return to work.
37. Around this time, C’s school (where she was still on roll, despite not attending) told the Council that, although it could not meet C’s needs, she could still attend and receive some education until a new school was found. It also offered online tuition, but Mrs B did not consider this suitable.
38. The Council made no further efforts to deliver education to C until finalising her EHC plan in late April (21 weeks after deciding to reassess her).

My findings

39. The law says councils must arrange suitable education for children who are out of school.
40. Although C’s school place remained available to her while the Council’s reassessment took place, everyone concerned – including the Council – was of the view that the school was not meeting (and could not meet) C’s needs. So the school could not have reasonably been described as ‘suitable’ education.
41. The Council accepted this, and took steps to arrange home tuition for C pending the outcome of its reassessment. However, despite its initial efforts, it failed to successfully deliver suitable full-time (or any) education between November 2021 and late April 2022. Although some online tuition remained available from C’s school, this did not meet the full-time requirements of the Education Act. This was fault by the Council.
42. The Council also delayed finalising C’s EHC plan by seven weeks. This was also fault, and meant there were seven weeks in which C should have been receiving the educational provision in the EHC plan, but was not.
43. Again, given the passage of time – and with the fact that C currently receives a full-time education in mind – it is unlikely that the benefit of C’s missed education could now be recovered with the delivery of more education. So the Council should make a further symbolic payment to C which recognises the impact of the its failure to deliver education between November 2021 and April 2022.

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Agreed actions

44. Within six weeks of this decision, the Council has agreed to:
• Send a written apology to Mrs B, and C, for the failings identified in this decision statement.
• Make a payment of £2,500 to Mrs B, on behalf of C, to recognise that it failed to properly consider or meet C’s SEN over a three-year period.
• Make a further payment of £1,150 to Mrs B, on behalf of C, to recognise its failure to provide suitable education to C over a five-month period.
45. The Council has agreed to provide us with evidence that it has completed these actions.

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Final decision

46. The Council was at fault for how it delivered education and SEN provision to C. The agreed actions remedy C’s injustice.

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Investigator's decision on behalf of the Ombudsman