Summary: Miss X complains the Council failed to arrange suitable educational provision for her child, B, when B was unable to attend school due to illness. Miss X complains the Council delayed naming a new placement in B’s Education, Health and Care Plan, which delayed her appeal rights to the SEND Tribunal. We have decided to uphold Miss X’s complaint because we have seen evidence of fault by the Council causing Miss X and B injustice. B missed out on certain educational provision. To remedy this, the Council has agreed to apologise to Miss X and B, make Miss X several payments and carry out some service improvements.

The complaint

1. The complainant, who I shall refer to here as Miss X, complains the Council:
1. failed to provide suitable educational provision for her child, B, from February 2021;
2. withdrew the outdoor alternative provision that it had arranged in August 2021; and,
3. delayed in consulting alternative placements during the 2021/22 annual review and naming a new placement in Section I of B’s Education, Health and Care Plan.
2. Miss X says the Council’s actions delayed her right to appeal to the SEND Tribunal. She says B has missed out on suitable education. She says the situation had a significant impact socially, emotionally and academically on B. Miss X says B missed out on key educational milestones and being around B’s peers. She says B was caused significant distress when the outdoor provision was removed.
3. Miss X says the situation has affected her ability to work and caused her significant stress and distress.

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What I have and have not investigated

4. I cannot investigate Miss X’s complaint the Council failed to name a suitable placement in B’s Education, Health and Care Plan (EHC Plan) from November 2021. Miss X appealed against the placement named in Section I, which was the suitable course of action to take. This is because we cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
5. I cannot investigate the period between 1 November 2021 (when the Council issued an amended EHC Plan for B and Miss X’s appeal rights were triggered) and October 2022 (when the SEND Tribunal appeal about B’s placement concluded). The reason for this decision is that caselaw says the Ombudsman cannot investigate a council’s alleged failure to provide alternative education for a child with special educational needs, who is out of school, when the alleged failure is inseparable from the subject of appeal. This caselaw, therefore, prevents me from looking at the issues Miss X raised during this specific period. I can, however, look at the period before the final amended Plan was issued.
6. The law also says 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. Miss X complained to the Ombudsman about matters dating back to September 2019. But, Miss X complained to the Ombudsman in late July 2022, which means we would not usually investigate matters before July 2021.
8. I have considered Miss X’s reasons for not complaining sooner. But, I consider Miss X could have reasonably been expected to complain to us sooner if she wished for us to investigate as far back as 2019.
9. I have decided an investigation from February 2021 until end of October 2021 is fair and justified. When making this decision, I have taken into consideration that Miss X first complained to the Council in September 2021, but she did not receive a final complaint response from the Council until much later, in July 2022, and was consistently raising issues with the Council during this time.

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The Ombudsman’s role and powers

10. 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)
11. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
12. 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)

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How I considered this complaint

13. I spoke with Miss X about her complaint. I considered all the information and documents that the Council and Miss X sent to me.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
15. 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 found

Education, Health and Care Plans

16. 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.

Arrangements for reviewing an EHC Plan

17. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
18. 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)
19. 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)
20. 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)
21. 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 - General section 19 duty

22. 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.
23. 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)

Educational provision – available and accessible

24. 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)

Reasonable adjustments for people with disabilities

25. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
26. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
27. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

28. I have set out a summary of the key events below. It is not meant to show everything that happened.

Chronology

29. Miss X’s child, B, is autistic and has anxiety. B has special educational needs connected with these conditions and an EHC Plan.
30. In February 2021, B was in Year 9 and enrolled at Secondary School One, a mainstream secondary school.
31. In early July, Secondary School One held B’s annual review meeting. The record of this meeting shows B had not attended school since Year 8 and B had been receiving support through the Council’s Flexible Learning Team, which supports children with medical needs to access education.
32. In mid-July, Secondary School One sent the Council its record of B’s annual review meeting.
33. Two days later, the Council sent Miss X its decision to amend B’s EHC Plan and a copy of the existing Plan with the Council’s proposed amendments.
34. On the same day, the Council sent out consultation letters to three schools, including Independent School Two.
35. The next day, the Council consulted Special School Three.
36. The Council then consulted a fifth school.
37. In early September, Miss X complained to the Council that it had stopped B’s weekly provision at Alternative Provision Provider Y.
38. Ten days later, the Council replied to Miss X’s complaint. It said provision at Alternative Provision Provider Y stopped because it was an “unregistered provider”. It said its Flexible Learning Team would contact Miss X to discuss how the provision offered could be adjusted and increased given B’s stage in education. The Council apologised for not communicating with Miss X promptly about its decision and the process for naming a school placement. It said B’s EHC Plan Coordinator was in touch with the Flexible Learning Team so B could access education while a decision was made about a school placement.
39. In mid-October, Independent School Two contacted the Council to say it may have a space available from the spring term. But, the School explained it would not know for certain until after the next half term break.
40. In late October, Miss X complained to the Council. She said:

• B was only receiving eight hours of provision per week, with two hours tutoring in Maths and English and six hours at Alternative Provision Provider Y.
• But, following a decision by the Council’s High Needs Panel, it had withdrawn B’s provision at Alternative Provision Provider Y in August. Miss X complained this sudden withdrawal left B feeling like B had done something wrong and had impacted B’s mental health. She asked the Council why it had suddenly withdrawn the provision. She said B had attended there for so long because the Council had failed to provide anything else that was suitable.
• Since Alternative Provision Provider Y was withdrawn, B’s educational provision had been reduced to between four and five hours per week. She said this was not enough and B had a right to receive an education.
• Miss X said B and the family had been caused significant stress due to the situation and Miss X had to stop working. Miss X said she felt B had been let down by the Council and discriminated against because of her needs.

41. On 1 November, the Council issued B’s final amended EHC Plan. The Council named Special School Three as the placement in Section I.
42. Miss X appealed against the placement named in Section I and the content of the Plan. Miss X wished for B to attend Independent School Two.
43. Several weeks later, the Council sent its stage one complaint response. It said:

• the Flexible Learning Team had arranged for B to access two hours of one-to-one maths tuition, two of one-to-one English tuition, and one hour of English tuition in person with one other student. It said Art tuition had also been offered;
• Alternative Provision Provider Y was an alternative provision provider and not a school. While the Council had previously agreed to Alternative Provision Provider Y, this was taken to the High Needs Panel over the summer holidays and the Panel did not agree to the continuation of this. It said this was a temporary placement to meet B’s needs at that time.  It said the focus now was on assisting B to transition back to school. The Council apologised for any upset caused by its decision.

44. During the summer 2022, Miss X complained again to the Council.
45. In July, the Council sent its stage one complaint response. It said:

• since the Flexible Learning Team became involved in B’s education, it considered that the amount of education provision delivered through Flexible Learning was in line with what B could manage and was subject to regular review and increased as appropriate;
• following the annual review in July 2021, the Council decided that a new school was needed because it was not appropriate to reintegrate B into Secondary School One. It said the decision on the school placement had since been challenged and resolved through the appeals process; and
• regarding the withdrawal of Alternative Provision Provider Y, it said the Council had to make sure B's access to an unregistered provision was lawful. The Council said, through Flexible Learning support, it had sought to ensure that B received the education she was able to manage, prior to naming full time provision.

46. Miss X asked the Council for a stage two complaint response. But, the Council refused the stage two review because it said the Council had suitably responded to her complaint at stage one.
47. At the end of July, Miss X complained to the Ombudsman.
48. In October 2022, the SEND Tribunal issued a Consent Order. Miss X and the Council had reached an agreement before the Tribunal hearing. Of relevance to this complaint, the Council had agreed to name Independent School Two in Section I and issued a final amended Plan in November.

Analysis – was there fault by the Council causing injustice?

Alternative provision arranged by the Council

49. Miss X complains the Council failed to provide suitable educational provision for B, from February 2021 (part a of the complaint).
50. Based on the evidence I have seen, including the Council’s response to my questions, by February 2021, the Council had already accepted it owed the section 19 duty towards B because of illness. The Council said B was unable to attend school because of B’s “high levels of anxiety”. The Council confirmed in its stage one complaint response from July 2022 that, from February 2020, its Flexible Learning Team had been involved in arranging alternative provision for B and this was ongoing between February and end of October 2021.
51. The law says 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)
52. Based on the evidence I have seen, the Council arranged part-time alternative provision for B as follows:

• between February and end of July 2021, B had access to two hours per week of Maths and English tuition. When B felt comfortable, she was also able to attend an online one-to-one English lesson independently, but had been unable to access any online group sessions. B also had access to an Inclusion Support Mentor once per week who supported B in accessing some of the arranged tuition. B separately attended three sessions each week, with each session lasting two hours, at Alternative Provision Provider Y, which came to six hours per week in total. B completed academic-based work during the Friday sessions at Alternative Provision Provider Y. The Council told me that Alternative Provision Provider Y “was commissioned … to provide [B] with further opportunities for learning and socialising with peers and to build confidence and resilience.”
• in mid-August, the Council’s High Needs Panel decided to withdraw B’s placement at Alternative Provision Provider Y. The Flexible Learning Team arranged for B to access two hours of one-to-one maths tuition, two hours of one-to-one English tuition, and one hour of English tuition in person with one other student.

53. I asked the Council to provide evidence of how the Council assessed the alternative provision and special educational provision it had arranged was suitable for B, including when the provision was online instead of in person. But, based on the evidence I have seen, I find the Council has failed to show how it assessed the educational provision made was suitable to B’s age, ability and aptitude and to any special educational needs B may have. (Education Act 1996, section 19(6)) This is based on the following:

• statutory guidance for local authorities, titled Ensuring a good education for children who cannot attend school because of health needs, says that both full and part-time education should still aim to achieve good academic attainment, particularly in English, Maths and Science. But, I have seen no evidence that provision in Science was arranged or considered for B beyond two sessions in mid to late October where B worked on worksheets sent from Secondary School One. This is fault. The Flexible Learning Team’s Report from March 2021 shows B was working at Year 7 in Maths. In comments about my draft decision, the Council provided evidence that its Flexible Working Team considered B was working at Grade 9 in English. But B’s EP report for July 2021 recommended that B complete baseline assessments in English and Maths to pinpoint gaps in B’s learning so adults supporting B could identify appropriate half termly targets for B to work towards to catch up on missed learning. The Report provides clear recommendations, but the Council has not provided good reasons for departing from those recommendations in B’s case. The Council’s record of B’s annual review meeting, which I understand was attended by a member of the Flexible Learning Team, shows no clear record of the progress B had made in core subjects, like English, Maths and Science. This is fault. In my view, the Council has failed to show how the provision arranged was aimed at B reaching good academic levels in core subjects as there was no clear monitoring of progress against a baseline for B. For B, this was particularly important because the period investigated covered preparing B for the transition from Year 9 to Year 10, the first year when B was expected to begin working towards GCSE exams.
• Statutory guidance for local authorities, called Alternative Provision (January 2013), says that good alternative provision that is well planned should include a personalised plan setting clear objectives for improvement and attainment, timeframes, arrangements for monitoring progress, and a baseline of the current position against which to measure progress. Based on the evidence I have seen, the Council has failed to provide evidence of clear objectives for B, timeframes for achieving these and, given the previous paragraph, a baseline of B’s level against which it could monitor progress. It is not clear how B’s progress with the Flexible Learning Team and Alternative Provision Provider Y were being monitored and the objectives set at each. The record of B’s annual review shows none of her targets had been achieved and it is unclear what steps the Council considered necessary to address this. This is fault.
• The above statutory guidance also says that Plans should be linked to other relevant information or activities such as Education, Health and Care Plans (EHC Plans) for children with SEN. The Council had a duty to arrange the special educational provision in B’s Plan while she was unable to attend school. In terms of B’s tuition through the Flexible Learning Team, I understand B had access to an Inclusion Support Mentor once per week to support B’s learning. But, it is not clear what special educational provision was arranged for B to access each hour of tuition arranged (whether in groups or one-to-one). The special educational provision in Section F of B’s Plan details a high level of individual support, access to a range of adapted forms of communication (including non-verbal signals when B does not understand something) and clear structure around B’s learning. For example, B’s Plan says, to support B’s levels of anxiety, certain adaptations to B’s learning environment should be made, including: when there is a lesson/situation where things have not quite gone to plan, taking time to validate B’s feelings while showing B empathy; support to identify situations B was avoiding due to anxiety so B could then be supported by a trusted adult and parents to slowly tackle them by using strategies; staff working with B should check in with B each day to explore levels of anxiety and problem solve about which strategy B would like to use to help reduce her anxiety; and, when B’s anxiety is high, receive support from an adult who should check in with B at the start of the lesson to adapt support accordingly. In my view, based on the evidence seen so far, the Council has failed to sufficiently arrange the provision in B's Plan when providing tuition for B. This is fault.
• the Council told me it separately arranged for Alternative Provision Provider Y to provide B with further opportunities for learning and socialising with peers and to build confidence and resilience. Alternative Provision Provider Y was tasked with ensuring that the EHC Plan was delivered in so far as was practical during the sessions B had with the provider. When the Council removed B’s placement at Alternative Provision Provider Y, it increased B’s one-to-one tuition in Maths and English and provided one hour of English tuition in person with one other student at a centre. In comments about the draft decision, the Council provided evidence of it introducing some limited social activities for B at the centre from October following a request from Miss X who had raised repeated concerns about lack of social opportunities for B. But, I am not persuaded the provision arranged by the Council is equivalent to or similar to the amount of special educational provision that Alternative Provision Provider Y was previously providing. Rather, on balance, it is likely this placement was removed by the Council without it planning for B to access similar provision that was specified in the EHC Plan. This is fault. I find this meant it was likely B received less special educational provision (focused on social and emotional support) from the Council from the point it removed Alternative Provision Provider Y.
• the Council told me B was unable to access the online group learning sessions it arranged and some of the online one-to-one English lessons due to B’s anxiety and confidence. It said B’s Inclusion Support Mentor supported B in accessing some lessons and suggested B access recorded sessions to help with levels of anxiety connected with being put on the spot during a live session. In the EP report, B’s Inclusion Support Mentor said B was unable to engage in one-to-one tuition in computing also. But, it is unclear whether the Council considered providing Mentor support so B could consistently access these classes and what support was offered when suggesting B access recorded versions of the class. It is also unclear how and whether the Council considered what special educational provision, detailed above, could assist B in accessing these classes. Given the documented problems B was experiencing with online provision during the national lockdown in February, I would have also expected the Council to have explored the suitability of this offer immediately after lockdown finished. Based on the evidence I have seen, the Council failed to do so. This is fault.
• B’s anxiety and autism may be considered disabilities under the Equality Act. I asked the Council to provide evidence of how the Council considered whether to put in place any reasonable adjustments for B’s disabilities when arranging the above provision. Based on the Council’s response, I understand the Council decided B should access recorded sessions instead, rather than assess whether the online teaching could be adapted to meet B’s needs. In my view, the Council failed to consider what, if any, reasonable adjustments, could be put in place so that B could access the online learning. Some of these lessons were particularly important because they provided a level of contact with B’s peers in a group set up, which B was otherwise missing out on. For example, I would have expected the Council to have considered whether it was reasonable for B not to be asked questions during lessons or whether there were ways B could feel prepared for questions ahead of any class with appropriate support. The Council should have discussed with Miss X and B what adjustments could be made when deciding if these were reasonable and, if so, the Council had a duty to make them. I have seen no evidence the Council did so, which is fault. I find the Council failed to have due regard to its duties under the Equality Act to anticipate and assess what reasonable adjustments could be made to the lessons offered so that these were accessible to B.

54. During February 2021, the UK was in national lockdown because of COVID-19. In comments about the draft decision, the Council provided evidence that, during this time, the Inclusion Mentor attempted to arrange planned walks with B. Case notes from early February 2021 show the Inclusion Mentor noted the importance of seeing B once per week as B “does not engage with [the Inclusion Mentor] on the phone or online”. But, due to lockdown restrictions, the Inclusion Mentor could not provide support with face-to-face lessons or support B in person to access online lessons. In my view, the Council has shown it made efforts during this time to support B in accessing the alternative provision that its Flexible Learning Team was offering, but were restricted by lockdown requirements. But, it is clear from the case records provided that, during the national lockdown, B was struggling to engage with online learning and online classes, including in computing, were likely cancelled by parents during lockdown because of this. I have also seen no evidence of a risk assessment carried out by the Council for B, which we would have expected to see, particularly given B had an EHC Plan in place. This is fault. I, therefore, consider a payment of £150 for the uncertainty caused during the month of February is fair in this case. This reflects the fact B was struggling to access the online provision during this time and missed out on a risk assessment during lockdown, but it was unclear what provision would have been in place in the absence of the restrictions. I have recommended a payment for uncertainty at the lower end of our payment range given the impact national lockdown had on the Council’s ability to arrange face-to-face service delivery. I understand that, from 1 March, the previous in person visits with the Inclusion Mentor restarted.
55. Based on the above fault (part a of the complaint), I find B likely missed out on some educational provision between March and end of October 2021. Unfortunately, I am not able to say with certainty how much B missed out on. In the Council’s stage one complaint response, it told Miss X that the part-time provision delivered through its Flexible Learning Team was in line with what B could manage. This suggests B would likely have received part-time provision during this period as the Council considered it was in B’s best interests. I have taken this into consideration when recommending the following payments for missed provision:
56. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month 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. In this case, I have taken into consideration the fact B was at a key stage in their education, but also that the Council did arrange certain provision and made efforts to increase learning opportunities for B by offering an increase in B’s access to online learning as well as a place at a learning centre. I, therefore, recommend a payment of:

• £200 per school month for March 2021 until the end of summer term 2021 as B was receiving some provision, including some of the special educational provision in the Plan; and
• a higher payment of £300 per month between September and end of October 2021 because, after Alternative Provision Provider Y was removed, B was significantly isolated from their peers as B began Year 10.

57. Throughout the period considered, B became socially isolated from her peers. I find this was likely especially difficult for B after Alternative Provision Provider Y was removed without the Council arranging alternative provision aimed at offering B opportunities to socialise with their peers. Miss X provided significant care for B and told the Council, in October 2021, that B and the family had been caused significant stress due to the situation and Miss X had to stop working to care for B. But, the Council failed to carry out a carer’s assessment for Miss X or consider what social care support, if any, it could offer. Based on the annual review documents sent by the Council, I find the Council failed to invite or request a report from its social care team. This is fault. The law is clear that an officer in the Council’s social care team must be invited and asked for information and advice at least two weeks before the meeting. In my view, if this had taken place, it is likely the Council’s social care team could have considered what support it could offer the family, including signposting Miss X to its Parent Carer Support Pathway.
58. The Council’s failure to arrange suitable alternative provision, combined with its failure to carry out a carer’s assessment or seek views from its social care team, meant Miss X was expected to provide significant care for B. It is likely this affected Miss X and B’s personal relationships with each other. I find this meant the Council failed to have due regard to its duties under Article 8 of the Human Rights Act 1998 to respect Miss X and B’s right to respect for their private and family life. In my view, if the Council had promptly arranged suitable alternative provision for B, including arranging suitable SEP when Alternative Provision Provider Y was removed, and carried out the carer’s assessment, then it would have been able to decide how it could promote good family and other relationships for B while at home, and support B’s right to participate in social activities. I have taken this injustice into account when recommending a distress payment for Miss X.
59. Miss X complained the Council withdrew B’s placement at Alternative Provision Provider Y in August 2021 (part b of the complaint).
60. Based on the Council’s answer to my questions and its complaint responses to Miss X, it is my understanding that the Council’s High Needs Panel reviewed B’s placement at Alternative Provision Provider Y in mid-August 2021. The Panel decided allowing B to attend Alternative Provision Provider Y over a lengthy and unquantifiable period, when no other provision was in place, put the Provider at risk of being found to be running as an ‘illegal school’. In my view, this shows the Council no longer considered the placement to be suitable as Alternative Provision Provider Y was providing a form of educational provision for B that was beyond what it was supposed to. The Panel considered whether the placement could continue until an alternative school placement was found, but decided, for the same reason, this could not happen. Rather, the Flexible Learning Team should focus on supporting B’s transition to a new setting when this was identified. This is a decision the Council was entitled to make. I do not find it at fault as it reviewed B’s placement, but decided it was no longer suitable.
61. But, where I find the Council at fault is how this decision was communicated to Miss X and B. B’s EHC Plan and the Educational Psychologist report explain that B finds it difficult to cope with unforeseen changes and transitions, which impact B’s anxiety levels and autism. I find the Council failed to consider how it could accommodate B’s needs to prepare her for the removal of the placement. As explained above, I find the Council failed to promptly arrange a similar level of special educational provision when the placement was removed and I have seen no evidence of the Council providing a clear school transition plan to Miss X and B ahead of the autumn term 2021. This is fault.
62. Miss X explained the sudden withdrawal left B feeling like B had done something wrong and this had impacted B’s mental health. Miss X said Alternative Provision Provider Y had provided B with important social and emotional input. If the Council had considered what reasonable adjustments could be made when communicating the change in service to B to prepare B for the change, it is likely much of this stress and distress caused to B could have been avoided.

Consultations with alternative placements and the 2021/22 annual review

63. Miss X complains the Council delayed in consulting alternative placements during the 2021/22 annual review and delayed naming a new placement in Section I of the EHC Plan (part c of the complaint).
64. Based on the evidence I have seen, the Council consulted five schools within several days of the annual review meeting. This included:

• Independent School Two, a non-section 41 approved independent special school, which replied the same day to say that it did not have any spaces available.
• two other schools, which replied in late August and late September to say they either did not have any spaces available or could not meet B’s needs.
• Special School Three, a maintained special school, which replied several days later to say the School could meet B’s need and offer a place.
• a fifth school, which was a further non-section 41 approved independent special school. But, despite the Council chasing the School for a response, the School did not respond to the Council for over a year when it said it was unlikely it could meet B’s needs. As this school was not approved as a school under section 41 of the Children and Families Act, the Council could not order the School to accept B and name it in the Plan.

65. Given the above timely consultations, I do not find the Council delayed in consulting schools and, where it did not receive a response, took appropriate steps to follow up with the school.
66. Two days after the annual review meeting in mid-July, the Council sent Miss X its decision to amend B’s EHC Plan and a copy of the existing Plan with the Council’s proposed amendments.
67. The SEND Regulations and Code of Practice say that the Council must issue the final 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) This meant it should have sent Miss X the final Plan by early September. But, it delayed in sending this until 1 November, when the Council issued B’s final amended EHC Plan naming Special School Three as the placement in Section I. This delay is fault, which delayed Miss X’s appeal rights to the SEND Tribunal.

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Agreed action

68. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to B for the fault causing injustice;
2. apologise in writing to Miss X for the fault causing injustice; and,
3. obtain social care advice, as required under the statutory annual review process. The Council should also offer Miss X a carer’s assessment. The Council should report back on the outcome of these actions and provide copies of the assessment and the social care advice. The Council should consider whether B’s EHC Plan requires updating following the assessment and advice. If so, the Council should provide Miss X with an amended final Plan with fresh SEND Tribunal appeal rights within this timescale.
69. Within eight weeks of my final decision, the Council has agreed to:
1. make Miss X a payment of £150 for the uncertainty caused to B during the national lockdown in February 2021;
2. make Miss X a payment of £200 for each school month between March 2021 and end of summer term 2021 (five school months after deducting school holidays) when B missed out on certain educational provision. This comes to a total of £800, which is to be used for B’s educational benefit;
3. make Miss X a payment of £300 for each school month between September and end of October 2021 (one and three quarter school months after deducting school holidays) when B missed out on certain educational provision and experienced a decrease in the special educational provision arranged by the Council. This comes to a total of £525, which is to be used for B’s educational benefit; and,
4. make Miss X a payment of £400 to recognise the significant stress and distress caused, including the particular impact the fault had on B and Miss X’s personal and family relationships, the missed opportunity to have a prompt carer’s assessment and social care advice, and the distress caused to B when it failed to consider how it could accommodate B’s autism and anxiety-related needs when communicating its decision to remove B’s placement at Alternative Provision Provider Y.
70. I have considered the Ombudsman’s published guidance on remedies when recommending the above payments.
71. Within three months of my final decision, the Council has also agreed to:

• review its guidance to staff to make sure it is clear the Council must invite a social care officer to each annual review meeting and obtain advice and information from a social care officer during the annual review. The Council should also circulate a reminder to staff on this. The reminder should flag that the Council should circulate this social care advice and information to those invited to the annual review meeting two weeks before the meeting; and
• review its guidance to staff on arranging alternative provision to make sure it is clear that any alternative provision must be suitable to the child/young person’s age, ability and aptitude and to any special educational needs they may have. The Ombudsman expects the Council to maintain robust records of how this is assessed. Guidance to staff should include that both full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science and staff should consider creating a personalised plan when arranging alternative provision, which sets clear objectives for improvement and attainment, timeframes, arrangements for monitoring progress, and a baseline of the current position against which to measure progress. The Council should consider creating a template personalised plan for use by its staff and provide a copy of this.

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

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Final decision

73. I have completed my investigation.
74. I have decided to uphold parts a to c of Miss X’s complaint because I have seen evidence of fault by the Councill causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman