Summary: The Council was at fault for failing to provide appropriate education and special educational provision to Ms X’s son. It was also at fault for not reviewing Ms X’s son’s Education Health and Care plan within the required timeframe. The Council has agreed to apologise, make a payment for loss of education and special educational provision and review its practices for Annual Reviews of Education, Health and Care plans.

The complaint

1. The complainant, whom I refer to as Ms X, complains the Council:
1. Failed to arrange suitable educational and special educational provision for her son while he was out of school.
2. Failed to carry out Annual Reviews of her son’s Education, Health and Care plan within the appropriate timescales.
3. Provided her with a poor level of communication.
2. Ms X says the Council’s actions have had a detrimental impact on her son’s education and his emotional, social and physical health has suffered. Ms X also says her family has found the process very distressing and having her son at home has impacted on their family life.

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What I have investigated

3. 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
4. I have investigated matters from when the SEND Tribunal issued its decision in May 2019. I have not investigated events prior to this and set out why at the end of this statement. I have included some events prior to the SEND Tribunal decision in the ‘what happened section’, however this is just for context.

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The Ombudsman’s role and powers

5. 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)
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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)

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How I considered this complaint

9. As part of this investigation I considered the complaint made by Ms X and the responses from the Council. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Education and Health Care Plans

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this. Section B concerns a child’s special educational needs. Section F sets out the special educational provision and section I names the school placement.
12. Councils have a duty to ensure the special educational provision sent out in the EHC Plan is put in place. (Children and Families Act 2014 section 42)

Annual Review of EHC Plans

13. Councils must review a child’s EHC Plan as a minimum every 12 months. Reviews must focus on the child’s progress towards achieving the outcomes specified in the EHC plan. The review must also consider whether these outcomes and supporting targets remain appropriate. (Children and Families Act 2014, Section 44 and Special Educational Needs and Disability Code of Practice: 0 to 25 years, para 9.166)
14. Councils must notify the child’s parent of its decision following the review meeting within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review). (Special Educational Needs and Disability Code of Practice: 0 to 25 years, para 9.169)

Provision for children who are not at school

15. Councils have a duty to 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 provision. (Education Act 1996, section 19)
16. The Department for Education produced statutory guidance for local authorities entitled “Alternative Provision”. This says while there is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion, councils should ensure such pupils are placed as quickly as possible.
17. Alternative Provision says councils should:
• Provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
• Address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors.
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school.
• If a child receives one to one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
18. Good alternative provision is that which appropriately meets the needs of pupils and:
• Enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Math’s and Science (including Information Technology).
• Meets specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress.
• Has clearly defined objectives including the next steps such as reintegration into mainstream education.

What happened

19. There has been extensive correspondence between the various parties involved. In this section of the statement I summarise key events, but I do not refer to every single contact and communication.
20. Ms X’s son, Y, has special educational needs (SEN) and a diagnosis of Autistic Spectrum Disorder.
21. In February 2018 the Council finalised Y’s EHC plan to take account of his transition from primary school into secondary school. This named School A, a mainstream school, in section I of the EHC plan.
22. Ms X appealed to the SEND Tribunal in May 2018 as she disagreed with School A being named in the EHC plan. She also disagreed with the special educational provision listed in the EHC plan.
23. In September 2018 Y started secondary school, at School A, however he stopped attending in October 2018 as he could not cope.
24. In May 2019 the SEND Tribunal issued its decision and named School B on Y’s EHC plan. This was not Ms X’s choice of school for Y, however the SEND Tribunal decided School B could meet Y’s needs. School B was a special academy for pupils with moderate learning difficulties and with social, emotional and mental health difficulties.
25. On 25 June 2019 the Council issued a new EHC plan for Y, naming School B. The EHC plan specified Y should receive speech and language therapy sessions six times per year with the speech and language therapist providing direction to Y’s subject teachers. The EHC plan also said Y should have daily small group sessions focused on literacy and maths and weekly social skills and communication lessons in small groups.
26. In July 2019, Y visited School B and was traumatised by his visit. Ms X said she sought help from CAMHS over the summer.
27. At the end of September 2019 Y visited School B again. The intention was to introduce Y to his key worker at School B as well as his class teacher. This initially went well, however as the day progressed Y became more distressed and made it clear he did not wish to return to School B.
28. On 1 October 2019 the special educational needs co-ordinator at School B emailed the Council about Y’s visits and the difficulty in Y attending School B.
29. On 6 November 2019 a review meeting took place for Y. Ms X attended along with a representative from the Special Educational Needs and Disabilities Information Advice and Support Services and the special educational needs co-ordinator at School B. The Council were not in attendance. The notes from this meeting show Y has only been able to come to School B on two occasions. School B would see whether the Council could put funding in place for home tuition and a college programme, and see what dates the Council was available to complete a full Annual Review of Y’s EHC plan as he was currently not attending School B.
30. In December 2019, School B told the Council it had tried to integrate Y into school, but this was unsuccessful. The Council agreed to look for alternative provision for Y and made a referral to One Eighty to help Y reintegrate to School B. The Provision with One Eighty started on 27 February 2020 and consisted of three hours per week and lasted for 10 weeks.
31. On 14 May 2020 the Council held the Annual Review of Y’s EHC plan. The parties at the review agreed Y could not attend School B and the Council agreed to look for an alternative school placement for Y.
32. In September 2020 the Council emailed the head teacher at School B to see if it was providing any provision for Y. In October 2020 the Council held a meeting with School B and agreed to put in place a package of support for 25 hours of education per week for Y while the Council looked for a permanent full time placement.
33. On 12 October 2020 the Council sent Ms X the amended version of Y’s EHC plan following the Annual Review in May 2020. The Council also consulted several schools to see if they could offer Y a place. The Council arranged for Y to attend a session at a training provider, on 20 October 2020, however he was too anxious to attend.
34. After the Council consulted with several providers, College A agreed to offer Y a place. Y started this placement from 4 December 2020. College A later confirmed Y attended on a full time basis and his attendance record was over 90%.
35. Since Y started to attend College A, the Council has issued an new EHC plan naming College A in the plan.

Ms X’s complaint

36. On 15 October 2020 Ms X complained to the Council. Ms X said Y had not received any education for 28 months and since he was in year six. Ms X said School B could not support Y. She also said Y has not received any SEN provision and the Council was aware Y was not attending school but did not put in place alternative education for him. Ms X also said the Council had not carried out Annual Reviews of Y’s EHC plan within the correct timeframes and had not received adequate communication form the Council.
37. The Council provided its stage one response in November 2020. The Council said:
• The SEN team always worked with Ms X and Schools A and B were named on Y’s EHC plan and were available for him to attend.
• Staff at School B tried to support Y’s attendance and the Council put in place alternative provision at One Eighty.
• Y’s SEN provision was always available to him at School A and then School B.
• It did not hold the Annual Review of Ys EHC plan in a timely manner and apologised.
• The SEN team went under significant restructuring in 2019-2020 and this impacted work. This meant Y’s case was with several different officers so there were delays in responding to Ms X. The Council apologised for the frustration and distress caused.
38. Ms X requested the Council escalate her complaint to stage two in January 2021. Ms X disputed the Council provided education to Y or SEN provision. Ms X also said had the Council held an Annual Review when it should have done, Y may have received alternative provision.
39. In March 2020 the Council provided its final response. The Council said:
• Suitable education was available to Y at School A and then at School B after the SEND Tribunal’s decision.
• The SEN provision in Y’s EHC plan was available to him at School A, prior to the SEND Tribunal’s decision, and then at School B after the SEND Tribunal’s decision.
• It upheld the complaint about not carrying out an Annual Review of Y’s EHC plan which it should have done. The Council said its response to the May 2020 Annual Review meeting actions was not prompt enough.
• Communication with Ms X was not as timely as it should have been.
40. Ms X remained dissatisfied so complained to the Ombudsman.

Analysis

41. As discussed at the end of this statement I have only made findings on matters after May 2019.

Complaint a) The Council failed to arrange suitable education and SEN provision for Y while he was out of school

42. In May 2019 the SEND Tribunal decided School B was suitable for Y. The Council has provided evidence from School B that this placement was available for Y in June 2019 following the SEND Tribunal’s decision. Although I acknowledge Y did not attend School B following the SEND Tribunal’s decision I cannot find the Council at fault for failing to provide adequate education and SEN provision to Y for this period. It was reasonable for the Council to assume Y’s educational and SEN provision was being met at School B.
43. From October 2019, the Council was at fault for failing to provide adequate education and SEN provision to Y. After trying to integrate Y, School B contacted the Council in October 2019 to explain the difficulties in Y attending and the results of Y’s visits to School B. At this stage the Council was aware Y was not attending School B and should have made arrangements to support Y.
44. A review meeting was held in early November 2019, but the Council did not attend. It was clear from the notes of this that Y was not going to attend School B and required some other provision. While the Council did put in place support at One Eighty, this only commenced at the end of February 2020 and consisted of three hours per week for 10 weeks.
45. Following Y’s Annual Review meeting in May 2020, the Council agreed to look for an alternative placement. It also referred Y to a training college in October 2020. However from October 2019 until Y started at College A on December 2020, I cannot see what support the Council put in place except 10 weeks at One Eighty from the end of February to May 2019 and a referral to a training college in October 2020.
46. While the Council’s position was Y could access education and his SEN provision at School B, it was clear to the Council from October 2019 that Y was not attending School B.
47. I accept the Council provided One Eighty provision to try to reintegrate Y back into School B, however it did not put in place sufficient educational provision or SEN provision while Y was not attending School B. Y’s EHC plan lists SEN provision such as SALT and small group learning. I cannot see that Y was provided with any of this provision from October 2019 to December 2020.
48. When Y started at College A in December 2020, the feedback was that he went straight in full time and had an above 90% attendance. Therefore I have seen no evidence Y should not have received full time provision.
49. As a result, Y has missed out on education and has fallen further behind. In addition he has not received the SEN provision listed in his plan.
50. Where we have decided fault by the Council has resulted in loss of education we usually recommend a payment of between £200 and £600 a month, taking account of factors such as the child’s special educational needs, the amount of education received during the period and the stage in the child’s school career.
51. In this case Y did not receive adequate education or SEN provision from October 2019 until December 2020. I have set the rate nearer the higher end of the scale as Y has special educational needs and was transitioning to secondary school so this was a key stage in his school career. I have taken into consideration that the Council provided provision at One Eighty but this was only 3 hours per week for 10 weeks.

Complaint b) The Council failed to carry out Annual Reviews of Y’s EHC plan within the appropriate timescales

52. The Council has accepted it failed to carry out Annual Reviews when it should have. This is welcomed, however the Council did not offer Ms X any remedy for failing to carry out an Annual Review.
53. After the Tribunal issued its decision in May 2019, the Council did not carry out an Annual Review of Y’s EHC plan until May 2020. This is fault given the previous EHC plan was issued in February 2018 and there had been no Annual Reviews since.
54. While the Council said there was a review meeting in November 2019, this was not an Annual Review. The Council was not in attendance and one of the actions from the meeting was for the Council to specify dates when a full Annual Review could take place to address the impasse with Y’s education.
55. The Council was also at fault for delaying in carrying out the actions from the May 2020 Annual Review. It seems it did not consult with alternative schools for Y until September 2020. Had it done so earlier, following the May 2020 Annual Review, the Council may have been able to find Y a school placement sooner.
56. As a result of failing to carry out Annual Reviews every 12 months and delaying in carrying out the actions of the May 2020 Annual review, the Council missed the opportunity to review Y’s provision sooner and put in place adequate education. In addition the Council may have started looking for an alternative placement for Y at an earlier date.

Complaint c) The Council provided Ms X with a poor level of communication

57. The Council has acknowledged its communication was not as timely as it should have been. The Council has apologised to Ms X and explained this was due to staff restructuring.
58. I welcome the Council has recognised this and apologised to Ms X. This is a suitable remedy for any injustice caused.

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Agreed action

59. Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Ms X for not providing Y with adequate education or the SEN provision listed in his EHC plan.
• Pay Ms X £5,400 in recognition of the lost education and SEN provision to Y from October 2019 until December 2020.
• Pay Ms X £300 to recognise the distress caused and loss of opportunity to put things right by not carrying out an Annual Review of Y’s EHC plan until May 2020.
60. Within three months of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Review its practices for conducting Annual Reviews to ensure they are conducted in line with the SEND Code of Practice.
• Conduct a review of Y’s case and identify service improvements to be implemented for the benefit of service users in the future.

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Final decision

61. I have completed my investigation and found there was fault by the Council which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Parts of the complaint that I did not investigate

62. I did not investigate any loss of provision prior to May 2019. Where a complainant has appealed to the SEND Tribunal about the school placement named on the EHC plan we cannot consider any loss of education during the period from when appeal rights arise until the SEND Tribunal’s decision.
63. I have not investigated Ms X’s claims the Council failed to carry out Annual Reviews in 2018 and early 2019 as this complaint is late. I can see no reason why Ms X could not have complained to the Ombudsman about this sooner.

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Investigator's decision on behalf of the Ombudsman