Summary: Miss X complained the Council delayed finalising her child, W’s, Education, Health and Care (EHC) plan. She also complained the Council failed to secure the support in W’s EHC plan and did not put suitable alternative provision in place. The Council was at fault for delay in finalising W’s EHC plan, failing to provide some of the provision in the plan, for delay in arranging alternative provision and for failing to properly monitor the arrangements to ensure they remained suitable. These faults caused Miss X avoidable frustration and distress and impacted on W’s education and development. To remedy their injustice, the Council will apologise to Miss X and pay her £4,700. To prevent the fault occurring again, the Council should also carry out staff training and review its monitoring arrangements for alternative provision and special educational provision.

The complaint

1. Miss X complained the Council delayed finalising her child, W’s, Education, Health and Care (EHC) plan. She also complained the Council failed to secure the support in W’s EHC plan and failed to put suitable alternative provision in place since April 2021.
2. Miss X said this meant W did not receive the education they should have, W’s needs increased and she experienced anxiety and stress.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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 done. Miss X complained to the Ombudsman in January 2023. She said the Council failed to put suitable alternative provision in place starting in April 2021. I have exercised discretion to look at the entire period Miss X complained about because she was initially focused on obtaining W’s EHC plan and moving them to a more suitable school.
6. 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.
7. 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.

Back to top

How I considered this complaint

8. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
9. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

EHC plans

10. 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. Section I is the school setting the child will attend. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.

Annual reviews

11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. This is the annual review. Each annual review must take place within 12 months of the last.
12. Caselaw from March 2022 clarified the timetable for annual reviews. The High Court decided that if a council intends to amend a child’s EHC plan, in addition to telling the parent of its decision to amend the plan within four weeks of the annual review meeting, it should also send a copy of the draft amended plan and an amendment notice. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHC plan.
13. If, on receipt of an amendment notice, a parent asks a council to name a different school, the council must consult with that school. Councils can name a specific school in section I of a child’s EHC plan. If that is not possible, councils can also name a type of placement (e.g. specialist) or even alternative provision.
14. 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

15. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

Record keeping

17. The Ombudsman has issued guidance called the ‘Principles of good administrative practice’. It says councils should be open and accountable. They should do this by keeping proper and accurate records.

What happened

18. This section sets out the key events in this case and is not intended to be a detailed chronology.

19. In April 2021, W stopped attending primary school entirely. The Council became aware that W was not in education when Miss X applied for an EHC plan in May. The Council agreed W needed an EHC plan and began an assessment.

20. In September 2021, W began attending regular sessions with a provider (Provider A) which specialises in supporting children with challenging educational backgrounds.

21. The Council issued the final EHC plan in October 2021. It named W’s primary school in section I.
22. The plan noted W is autistic and has Emotionally Based School Avoidance. Much of the special educational provision was strategies and approaches to use with W. The plan also recorded the following special educational provision:
• W should have at least termly support from a Speech and Language Therapist (SALT). The SALT would set up a programme of activities which would be carried out by school staff when W was able to attend and by W’s parents at home; and
• W would gradually reintegrate back into school. Provider A would help with the transition by gradually increasing their hours.
23. In February 2022, the Council spoke to W’s primary school, which agreed it would support W to access alternative provision from Provider A while the Council sought a specialist school place.
24. A previous school the Council had consulted with had declined to offer W a school place so Miss X told the Council that she would be willing to visit a different specialist school (School A) to see if it would suit W.
25. In mid-April, the Council agreed to fund an Education Otherwise Than At School (EOTAS) package. The package began in May 2022 and was designed to reduce W’s anxiety and attachment issues and prepare W for a return to school. It included:
• ten hours of one-to-one support per week with Provider A;
• ten hours per week of sessions at a farm (Provider B) for children with special educational needs;
• 30 minutes of one-to-one swimming sessions per week; and
• one session per week in a sensory play space.
26. At the end of April, the Council held W’s annual review. It did not issue a draft EHC plan and amendment notice until late September 2022. There were no substantive changes to the special educational provision in the plan.
27. Miss X complained to the Council in late September 2022.
28. A few days later, Miss X confirmed she wanted W to attend School A. The Council consulted with School A in October 2022. It said it did not have space to offer W a place.

29. The Council responded to Miss X’s complaint in early November to say it had not issued the final plan because School A had not offered W a place. It said Miss X had refused to allow it to consult with other schools and it did not want to name a type of placement without her consent.

30. Miss X asked the Council to consider her complaint at stage two in late November. She said she would not agree for it to name a type of school because she only wanted it to name School A. She said she had asked Provider A to increase the number of hours they supported W each week but it had not responded. She also said Provider B had told her that it could not meet W’s needs after one session. She had told the Council this previously.
31. Miss X told me W attended Provider A for a maximum of 4.5 hours a week. She said Provider A said it would not increase the hours of support because it could not fully meet W’s needs. She told the Council this, but it did not offer alternative support.
32. The Council sent its complaint response in late December 2022. It said:
• it accepted the 2022 annual review had been delayed;
• it recognised the alternative provision it had arranged was not suitable for W;
• it was working to arrange a place for W at School A, by September 2023 at the latest; and
• in the meantime, it would arrange a tutor from a local school (School B) to support W at home, to facilitate the transition to School A.
33. The Council consulted with School A again in December 2022. School A said it could now offer W a space.
34. The Council says Miss X told it she did not want to pursue the tuition from School B because now W was due to move to School A, it would be too disruptive. The Council told me it had this discussion with Miss X in a phone call, but it does not have any records of the conversation.
35. Miss X disputes that she told the Council not to arrange the tuition.
36. As of July 2023, the Council has still not issued W’s final amended EHC plan. W is attending School A on a transitionary schedule to build up the ability to attend full time as of September 2023.

Response to my enquiries

37. In response to my enquiries, the Council told me demand for School A was high. It said there were no spaces in July 2022 and by the time School A refused to accept W due to space issues in October 2022, the Council had around 30 other children who wanted to attend.

38. I asked the Council how it ensures the alternative provision children are receiving is suitable, continues to meet their needs and moves them towards a return to school. The Council told me it requires the provider delivering the alternative provision to give it weekly reports. It also uses the weekly reports to confirm if a child is receiving the special educational provision in their EHC plan.
39. The Council told me that in W’s case, it considered whether the alternative provision was suitable at a panel hearing in mid-October 2022 and December 2022. The Council has not sent me evidence of those meetings.
40. The Council agreed its communication with Miss X had been poor at times. It said this had impacted on Miss X’s trust in it and on the strength of the working relationship between them. It said the situation had since improved and it hoped to see further improvement in its relationship with Miss X with W attending School A.

Findings

Delay in finalising W’s EHC plan

41. The law is clear that councils must issue a child’s amended EHC plan within eight weeks of the date they sent the child’s amendment notice and draft EHC plan. Caselaw has clarified that councils should take no more than 12 weeks to issue a child’s amended EHC plan after an annual review meeting. The Council held W’s annual review meeting in April 2022. It did not issue W’s amendment notice and draft plan until September 2022 and has not yet issued W’s amended EHC plan.
42. The Council did not finalise W’s amended EHC plan because, for a time, W did not have a place at Miss X’s chosen school and she did not want it to name a type of school (specialist) in the plan. The Council does not need parental agreement to finalise a child’s EHC plan. While I recognise the Council took this action to satisfy Miss X, the delay was not in accordance with the law and was fault.
43. W is now attending School A but Miss X told me the Council has still not finalised W’s EHC plan. This delay was further fault.
44. The provision in W’s September 2022 draft plan does not differ meaningfully from that in the October 2021 plan. Therefore, the delays did not mean W went without provision he should have had. In addition, had the Council acted without delay, it would have issued the amended plan by late July. At that point, School A did not have a place available for W, so the delay did not impact on their ability to move to the school. However, the delay since W has been attending School A caused Miss X undue frustration.

Unsuitable alternative provision

45. The Council has a duty to arrange alternative provision if a child in its area is not receiving a suitable education due to illness or other reasons. This duty applies even when a child is on a school’s roll or if they are expected to start at a particular school in the future.
46. The Council became aware W was out of education in May 2021, when Miss X requested an EHC plan assessment. However, it did not arrange alternative provision until September 2021. I am not satisfied the Council properly considered whether it owed W the alternative provision duty when it first became aware W was not attending school. This was fault. Given that when the Council did arrange alternative provision W’s circumstances had not materially changed, I consider that on balance, had the Council acted without fault, it would sourced alternative provision for W in May 2021.
47. Guidance on alternative provision is clear that a part-time timetable should not be a long-term solution. By February 2022, when the Council met with W’s School about alternative provision, W had been attending Provider A for only a few hours a week for 5 months. The Council should have reviewed the suitability of the provision earlier and its failure to do so was fault.
48. The EOTAS package began in May 2022 but the Council did not review whether it was being delivered or check its suitability until October 2022 and December 2022. During that time, W was not receiving the full provision from Provider A or B. The Council's did not have proper oversight of W’s alternative provision, which was fault.
49. In addition, I have seen no evidence to demonstrate the October or December 2022 panels considered whether W was receiving the full EOTAS package the Council agreed he needed, or that it considered what other provision W might need. This was fault. The Council did not properly review W’s alternative provision until Miss X made her stage two complaint, at which point it accepted the provision was unsuitable.

50. Subsequently, the Council began to arrange tuition from School B. It says it did not progress this at Miss X’s request during a phone call. Miss X disputes this. The Council does not have any records of the phone call or other evidence showing Miss X told it she no longer wanted to pursue the tuition. This was fault; the Ombudsman expects councils to keep records of key events and decisions. The decision to stop arranging a particular kind of alternative provision is a significant one and should have been noted.
51. The faults in paragraphs 44 to 47 likely meant W went without suitable alternative provision to constitute as close to a full time education as they could cope with. This impacted on W’s development and likely on their ability to return to full time learning in a school setting. The faults also caused Miss X further frustration and distress.

Failure to secure some of W’s EHC plan provision

52. The Council has a duty to secure the special education in a child’s most recent finalised EHC plan. Much of W’s October 2021 plan could not be implemented while W was out of education. However, the plan also includes provision for at least termly support from a SALT and gradually increasing hours with Provider A. There is no evidence the Council delivered that support, which was fault. The fault meant W lost out on provision to meet their special educational needs and caused Miss X distress and frustration.
53. The Council told me it requires alternative provision providers to send weekly reports. It uses these reports to confirm a child is receiving the special educational provision in their EHC plan. The Council did not evidence it received these reports for W and there is no evidence the Council identified the missing provision at the April 2022 annual review. The Council failed to exercise appropriate oversight over W’s special educational provision. This was fault. The fault meant the Council missed opportunities to identify the missing provision and meet its duty. This caused Miss X further frustration.

Communication

54. The Council accepts its communication with Miss X has been poor. I agree with the Council's finding; the failing amounts to fault. This caused Miss X undue frustration.

Back to top

Agreed action

55. Within one month of the date of my final decision, the Council will:
• apologise to Miss X for the frustration and distress she experienced as a result of the faults identified in this decision;
• pay Miss X £200 in recognition of that injustice; and
• put the missing SALT provision from W’s October 2021 EHC plan in place.
56. Where we find fault has caused a loss of education and special educational provision, we usually recommend a payment of between £900 and £2400 per term to acknowledge the impact of that loss. In deciding what recommendation to make, I considered what educational provision and special educational provision W received, what was missing, what provision W may have been able to cope with had it been put in place and where W was in their school career. I have therefore recommended the Council pay Miss X £1000 per term for a total of £4500. It should make the payment within one month of the date of my final decision.
57. The Council will also carry out the following actions within one month of the date of my final decision.
• Remind staff they can issue final EHC plans without parental agreement. This gives the parent the right to appeal to the SEND tribunal to resolve any disagreement over the content of the plan.
• Remind staff they must consider whether the Council owes a child the duty to arrange alternative provision when they become aware the child is out of education or not attending full-time.
58. Given the length of time that has passed since the April 2022 annual review meeting, the Council will hold a new annual review meeting. It will do so within one month of the date of my final decision. The Council will complete any amendments and issue a new final EHC plan within eight weeks of the date of the annual review meeting.
59. Finally, within three months of the date of my final decision, the Council will review the monitoring arrangements it has in place to assure itself that a) children are receiving appropriate alternative provision if they are unable to attend school full-time and b) children in alternative provision who have EHC plans are receiving special educational provision set out in their plans. If the Council identifies any actions it needs to take to improve its practice, it will produce an action plan and send it to the Ombudsman.

60. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

61. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Back to top

Investigator's decision on behalf of the Ombudsman