Summary: Mr X complained the Council failed to make suitable alternative educational provision or special educational needs provision for his sons, carry out annual reviews of their Education, Health and Care Plans, or respond to his requests for support and his complaints. We have found fault by the Council causing injustice. The Council has agreed to remedy this by apologising, making payments to acknowledge the missed provision, and reflect the upset and worry caused to Mr X and his family, and his time and trouble bringing the complaint to us. It has also agreed to review, at a senior level, the findings in this decision and the progress on improvements it said it would make following our report last year.

The complaint

1. The complainant, who I am calling Mr X, complains about the way the Council has dealt with his sons’ education and special educational needs provision. He says the Council failed to:

• provide his older son, who I am calling Y, with a suitable education and special educational needs provision from October 2018, when Y was removed from school, to date;
• provide his younger son, who I am calling Z, with a suitable education or special educational needs provision from October 2019, when Z was removed from school, to date;
• carry out annual reviews of his sons’ EHC Plans from 2017/2018 until November 2021;
• take appropriate action in response to his requests from 2018 it find suitable school placements for his sons;
• respond promptly to his complaints;
• respond promptly to his requests for support; and
• make an appropriate offer of payment for the education his sons have missed out on from 2018/2019 and to reflect the impact of its failures on his life.

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What I have and have not investigated

2. 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)
3. Mr X contacted us in September 2022. This was following the Council’s initial response to the complaint he raised with it in 2021. He came to us because, although the Council had accepted it had been at fault, he was not satisfied with the action it proposed to take to put things right.
4. He has brought his complaint to us within 12 months of the Council’s proposals for remedial action for the injustice its faults have caused. I don’t consider I can assess the level of injustice and whether the Council’s offer of a remedy is in line with our expectations as set out in our published Guidance on Remedies without looking at what has happened in the period from 2018.
5. For this reason, I have investigated what the Council has and hasn’t done regarding the provision of education for Y and Z from 2018.

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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.
7. 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)
8. 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)
9. 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

10. I spoke to Mr X, read his complaint and the Council’s response to our enquiries, together with all the other information Mr X, and the Council provided about the complaint.
11. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

12. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
13. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
14. 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.

Arrangements for reviewing an EHC Plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This says a council must review an EHC plan at least every 12 months.
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 EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a 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 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

20. 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))
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. 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)

The Human Rights Act

23. The Human Rights Act 1998 sets out the fundamental rights and freedoms to which everyone in the UK is entitled, including education.
24. The Act requires all councils - and other bodies carrying out public functions - to respect and protect individuals’ rights.
25. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a council has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

26. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

27. Both Y and Z have special educational needs and EHC Plans. These plans were last updated in 2018. At the time they were both attending the mainstream school named in their plans.
28. In October 2018 Y was removed from his mainstream school. The Council agreed to provide him with alternative provision at home.
29. I understand, although the Council has not provided any information about this, it arranged to provide Y with a two hour tutoring session once a week in the period from October 2018 to October 2019.
30. In October 2019 Z was removed from his mainstream school. The Council agreed to provide him with alternative provision at home.
31. The Council arranged to provide Y and Z with joint tutoring sessions for two hours twice a week from October 2019.

October 2019 to October 2021

32. I have not been provided with any information regarding any reviews by the Council, during this period, of the alternative provision in place for Y and Z, their SEN support, contact with Mr X about their education or consultations to find them new school places.

November 2021

33. In November, following contact from Mr X about the boys returning to school, the Council completed progress reviews for Y and Z.
34. It was noted their plans had last been updated in 2018 and they both wanted to return to school, with Z asking for a placement with very small classes.

Further action from December 2021 to December 2022

35. The Council had a meeting with Mr X In March 2022. At the meeting the Council noted:

• Y and Z were only receiving four hours of joint tutoring a week;
• it had not provided a good service and needed to make it better; and
• it needed to speak to the boys, with input from an educational psychologist (EP), to consider their options going forward.

36. In May 2022, the Council discussed, with Mr X and his wife, increasing the boys’ tutoring hours and the provision of mentoring and outdoor activities. Mr X said he was happy to take this forward.
37. In December 2022, the Council:

• progressed a request for increased tutor hours;
• requested updated EP advice;
• proposed a meeting with a proposed school;
• requested information about Y and Z’s current attainment levels, and
• proposed updating their EHC Plans

38. I understand as from early 2023, the Council increased Y and Z’s tutoring provision from four hours of joint tutoring a week, to a few hours a day, four days a week.

Mr X’s complaint to the Council

39. Mr X complained to the Council in November 2021 about the way it had dealt with his sons’ educational provision. He said:

• It had now been some years since they had been in school. Their mainstream school was not able to meet their needs and forced them to leave;
• The Council had kept on promising to find them a new school. But nothing had happened, and they hadn’t heard from the Council in years. He wanted the Council to find them school places now;
• His sons’ education and their future had been ruined; and
• The Council should pay financial redress for their missed education and the upset and stress the Council’s failures and had caused him and the family.

The Council’s response to Mr X’s complaint

40. In its stage one and final responses in July and December 2022, the Council said:

• It accepted the boys had not been offered the education they deserved. It apologised for this;
• It would now focus on increasing the support for them while it worked to find them school places; and
• It accepted the family had been let down and recognised the impact on them. It apologised for this.

41. It also said it felt a financial remedy would be appropriate for the missed education. It referred to our published guidance on remedies and offered to pay:

• Redress of £500 a term for 13 school terms of education Y had missed from October 2018, to recognise, although he had received some education during this period, it fell significantly short of meeting his needs. This made a total of £6,500;
• Redress of £500 a term for 10 school terms of education Z had missed from October 2019, to recognise, although he had received some education during this period, it fell significantly short of meeting his needs. This made a total of £5,000;
• These payments were to be used for the benefit of the boys’ education. The Council would consult with them and Mr X before deciding how this should be spent. If they couldn’t agree, the payments would be placed in trust until the boys were 18; and
• Mr X £200 to acknowledge his time and trouble chasing officers and making the complaint.

42. The Council said it would make improvements to its service by:

• Holding an annual review each year for all young people with EHC plans and bring these reviews forward if circumstances change;
• Working with schools to support young people who appear to be struggling as soon as it is made aware of the issues; and
• Adhere to the standards in its Customers’ Charter.

43. Mr X was not satisfied the Council’s offers were an appropriate remedy for the injustice caused by its failures and brought his complaint to us.

My analysis – was there fault by the Council causing injustice?

Failure to provide Y and Z with a suitable education from October 2018/2019

44. The Council has accepted, and I agree, it failed to provide a suitable education for Y from October 2018 and for Z from October 2019. This is fault.
45. Because of this failure Y and Z missed out on their educational provision and all their SEN support during this period.
46. The issue I have to consider is whether the Council offered an appropriate remedy for their missed education.
47. In our published guidance on remedies we say where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 to £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
48. The three terms in a school year are made up of nine school months. So we would recommend a payment of between £2,700 to £7,200 per school year of missed education. The Council, however, has only offered a payment of £500 a term or £1,500 per school year. This is below even our minimum recommendation. In my view the Council’s offer is way below what we would recommend and its failure to properly consider our published guidance is fault.
49. I have considered the impact on Y and Z of the missed education and SEN support below.

Failure to carry out annual reviews

50. The Council should have reviewed Y and Z’s EHC plans every year. Clearly the plans needed updating in any event now they were no longer attending the mainstream school named as their placement.
51. My understanding, based on the information I have seen, is that, in addition to failing to arrange suitable alternative provision, the Council took no action at all, from October 2018 to October 2021 to review Y and Z’s plans or find them suitable new placements. This is fault.

The Council’s actions from November 2021

52. The Council says, in response to Mr X’s complaint in 2021, it caried out annual reviews of Y and Z’s EHC Plans in November 2021. But all I have seen is a progress report completed by the Council in November 2021. There is no evidence it took any of the steps necessary to complete the review, such as obtaining updated information about the boys’ progress, SEN, and school placements.
53. The Council accepted in March 2022 it had not provided a good service. It said it would speak to the boys, involve an EP and consider their options going forward. And Mr X agreed to an increase in their tutoring hours and the provision of outdoor and mentoring activities. But I have seen no evidence the Council took any steps to progress this until December 2022. Even then the only change was an increase in tutoring hours in early 2023.
54. There was a delay by the Council of more than a year from November 2021 in completing the annual review and taking action, when it knew and accepted it had already failed to provide the boys with a suitable education for two to three years. There seems to have been no concern or real effort by the Council to urgently address the serious impact of its significant failures.
55. I consider this was fault by the Council which has continued to compound the effects of its failures of the previous years on the boys.

Response to Mr X’s complaint and requests for support

56. Mr X has told me he has been asking the Council to find the boys a school place and provide them with support from the time they were removed from school but received no response. The Council has not provided records of any action it took to resolve the situation or Mr X’s concerns. On the basis of the evidence available I consider the Council failed to respond to Mr X’s concerns. I consider this failure was fault.
57. There was also a delay by the Council in responding to Mr X’s formal complaint in November 2021. It took over a year to provide its final complaint response. And there was a delay in providing Mr X with support. This was only put in place by the early help team in April 2022, I consider these delays were fault.
58. These faults caused Mr X continuing distress about the family’s situation and worry about how and if his concerns would be resolved.
59. Mr X has also told us about the impact the boys not being provided with a suitable education or a school placement for such a long time has had on the whole family. He says the boys being at home has limited his and his wife’s ability to work and the stress of the situation has led to the breakup of their marriage. But, because of the involvement of other factors such as personal circumstances and choices, I do not consider I am able to reach conclusive findings that such matters have been directly caused by the Council’s failures. But I accept they caused Mr X and his wife considerable upset and worry about the impact on their sons of the Council’s failures.

Impact on Y and Z of the missed education

60. I have considered the impact on Y and Z of the loss of SEN support and educational provision.
61. They were both of secondary school age. The only provision initially made for Y was two hours of tutoring a week. From 2019 Y and Z were provided with four hours tutoring a week shared between them. No other alternative provision or support was provided for them.
62. This means they have missed out on their education almost completely and received none of their SEN support for three to four years at a very significant stage of their education. They have been deprived of the opportunity to study a varied curriculum and work towards essential qualifications as well as the social and extra -curricular activities available to their peers at school.
63. For these reasons, I consider the payment should be towards the higher end of the scale from October 2018 (Y) and October 2019 (Z) until February 2023 when I understand the increased tutoring was put in place.
64. I consider these payments should continue, towards the lower end of the scale, until the suitable educational provision has been arranged, or the end of this school year if later.

Y and Z’s right to an education

65. My view is the Council’s complete failure over a prolonged period from 2018 to take action to ensure Y and Z were provided with a suitable education indicates it did not have due regard to their right to an education. (Article 2. The First Protocol, Human Rights Act 1998).

Conclusion

66. Based on what I have seen so far, it appears to me the Council completely overlooked or disregarded its responsibility for these boys and their education following their removal from school. And it has not explained how this happened.
67. We issued a public interest report in June 2022 about the Council’s failure make suitable alternative provision and provide SEN support for another child. 21 002 722 - Local Government and Social Care Ombudsman
68. We made a number of recommendations in that report, which the Council agreed to carry out, including telling us how it would ensure:

• annual reviews and transfer reviews would be tracked for all children with EHC Plans to ensure these are arranged, take place and the proper action is taken to then amend, maintain or cease a plan and this happens without delay; and
• suitable alternative educational provision is made for children who require it and more broadly what steps it will take to ensure it is able to meet a range of children’s educational and other needs. It should also provide details of how it will track alternative provision being made to children and how it will ensure support for children meets their educational and special educational needs.

69. I have asked the Council below to provide us with evidence it has reviewed, at a senior level, its progress since last year in making these important service improvements.

Agreed action

70. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X, his wife, Y and Z for its failures to provide Y and Z with a suitable education, review their EHC Plans, take appropriate action to remedy the impact of these failures and have due regard to Y and Z’s right to an education;
2. apologise to Mr X for its delay in responding to his complaint and requests for support. These apologies should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
3. pay Mr X and his wife £1,500 (to be shared between them) to reflect the distress and worry its failures caused them over a prolonged period, and Mr X’s time and trouble in bringing this complaint to us. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
4. make a payment, to Mr X on Y’s behalf, as a remedy for the injustice caused to Y, of £2,200 for each school term from October 2018 to January 2023 Y did not receive a suitable education. I have assessed this as being 13.5 school terms and a total amount of £29,700.
5. make a further payment, to Mr X on Y’s behalf, as a remedy for the injustice caused to Y, of £1,600 for each school term from February 2023 Y did not receive a suitable education, continuing until suitable educational provision has been arranged or the end of this school year if later.
6. make a payment, to Mr X on Z’s behalf, as a remedy for the injustice caused to Z, of £2,200 for each school term from October 2019 to January 2023 Z did not receive a suitable education. I have assessed this as being 10.5 school terms and a total amount of £23,100.
7. make a further payment, to Mr X on Z’s behalf, as a remedy for the injustice caused to Z, of £1,600 for each school term from February 2023 Z did not receive a suitable education, continuing until suitable educational provision has been arranged or the end of this school year if later.
8. Tell us:

• what progress it has made to complete the reviews of Y and Z’s EHC Plans, name new placements and issue final amended plans; and
• its proposals for ensuring Y has the opportunity to complete his GCSE’s and any other appropriate qualifications he would have been able to gain while still of compulsory school age;
• its proposals for ensuring Z has the opportunity to complete his GCSE’s and any other appropriate qualifications he would have been able to gain while still of compulsory school age;

71. And within three months from the date of our final decision, the Council should:

• Arrange for its Portfolio Holder for People – Children, Education, Skills and Early Help to meet with a senior manager from the Council’s alternative provision and SEND teams to review the findings in this decision and the progress made in improving its services following our report of June 2022; and
• Provide us with a response confirming the outcome of this review.

72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have found fault by the Council, causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman