Summary: Mrs X complained the Council failed to provide suitable alternative provision for her child W. She also complained the Council did not secure W’s special educational provision and delayed in reviewing W’s Education, Health and Care plan. The Council was at fault in how it considered whether it owed W the duty to provide alternative educational provision. It was also at fault for delay in reviewing W’s Education, Health and Care plan and for poor complaint responses. This caused Mrs X frustration and distress and meant W missed out on educational provision. To remedy their injustice, the Council will pay Mrs X £850, apologise and carry out staff training.

The complaint

1. Mrs X complained the Council failed to provide suitable alternative provision when her child, W, became too unwell to attend school. She also complained the Council did not secure W’s Education, Health and Care (EHC) plan provision and delayed carrying out W’s EHC plan annual review.
2. Mrs X said this impacted on W’s educational and social development and sensory needs. She also said it caused her stress and meant she went to undue time and trouble.

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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. 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)
5. 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)
6. 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

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

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What I found

Relevant law and guidance

Alternative provision

9. 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. We refer to this as section 19 or alternative education provision. 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)
10. For children out of education due to exclusion, councils must put alternative provision in place from the sixth school day after the exclusion began.
11. Where a child is out of school due to health reasons, councils should arrange provision once it is clear the absence will be for more than fifteen school days. That should be in place by the sixth day the child is out of school.
12. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
13. We made six recommendations. These included that councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
1. where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

14. Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013) states that what is offered as alternative provision must be “on a par” with what is offered in school. That would mean direct teaching in any school setting and any alternative provision. 

Education, Health and Care plans: provision

15. 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 F is special educational provision.
16. The council has a duty to secure the section F special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. 

Education, Health and Care plans: annual reviews

17. Councils must review EHC plans every year. The first stage is to hold an annual review meeting to see whether a child or young person’s EHC plan remains appropriate. Within four weeks of the review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. The meeting and decision notice together make up the annual review. The annual review must be completed within 12 months of the first EHC plan.
18. The SEND code of practice 0 to 25 years (the Code) says that where a council proposes to amend an EHC plan, it should begin the process of amendment ‘without delay’. 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 (an amendment notice; sometimes called a draft EHC plan).
19. 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 existing EHC plan and proposed amendments to the parents.
20. 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, it must send the draft EHC plan (amendment notice) along with the notification it intends to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHC plan.
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.

What happened

22. This section sets out the key events in this case and is not intended to be a detailed chronology.
23. W is a young child with emotional and sensory needs. In early January 2022, the Council issued W’s first EHC plan. It included the following provision.
1. Use of strategies to break down learning into manageable parts.
2. A key worker to help with all learning and teaching in small groups.
3. A daily sensory session to teach W about sensory feelings and learn how to relax.
4. Strategies to address W’s concerns about failure, health and social skills
24. In late November 2022, W’s stopped attending school due to their mental health. W’s consultant psychologist signed W off school attendance.
25. In early December the school told the Council that despite using strategies to support W, it could no longer meet W’s educational needs. The school confirmed it would send work home. It said it had spoken with the Council’s attendance team and offered Mrs X provision outside of school, which she had refused. The Council contacted Mrs X who said she had started home educating W.
26. In mid-December 2022, Mrs X attended a meeting with the school. She said she could not continue home schooling because of work commitments. The School confirmed it had spoken to the Council about W and was working on a referral to its medical needs tuition team.
27. Mrs X complained to the Council in late December 2022. She said:
1. W had not received the provision in their EHC plan since they had stopped attending school;
2. the Council had not arranged alternative provision despite knowing W was out of education; and
3. W’s annual review was delayed.
28. In mid-January 2023, the Council’s medical needs tuition panel considered W’s referral. It concluded W’s EHC plan set out the provision needed to address W’s social, emotional and mental health (SEMH) needs. The referral said W could not attend school because of their SEMH needs. Therefore, the panel found the additional funding awarded to the school to secure the provision in W’s EHC plan should be used to educate them outside of school. It recommended the Council review W’s EHC plan to ensure it was meeting their needs.
29. The Council held W’s annual review meeting in mid-January 2023.
30. A few days later, Mrs X asked the school if it would pay for a private tutor and several types of non-teaching provision including swimming and an online service using games and play to support children with anxiety.
31. The Council responded to Mrs X’s complaint in late January 2023. It said:
1. it accepted W was out of education due to ill health;
2. W’s alternative provision was currently comprised of accessing an online maths and reading learning service, an independent reading book and weekly mental health wellbeing sessions with the school. It said the school had offered maths, mask making, swimming, play centre sessions and a trip to the local zoo, which Mrs X had declined. It accepted W’s provision should be increased;
3. it had continued to pay W’s school the funding for it to secure the provision in W’s EHC plan even though W was not attending. It was therefore satisfied it had made appropriate arrangements to secure W’s special educational provision;
4. the medical needs tuition panel had considered W’s referral in early January and concluded the needs set out in the referral were the same as those referenced in W’s EHC plan. Therefore, the funding the Council gave to the school to meet W’s special educational needs should be used to implement strategies to meet those needs; and
5. W’s annual review took place in mid-January 2023, one year and eight days after the first EHC plan. It accepted therefore that it had delayed by eight days in carrying out the review.
32. Mrs X met with W’s school in early February 2023. The meeting considered Mrs X’s request for tuition and non-academic provision. The school said it would not pursue tutoring because W had recently tried tuition arranged privately by Mrs X but had not been well enough to access it. It said it felt W needed less formal, non-academic type provision. It agreed to look into arranging funding for some of the non-academic provision Mrs X had suggested. The school confirmed it would pay for W to have counselling and that it had arranged for W to have learning and wellbeing support for four hours per week.
33. The school shared a record of that meeting with the Council and said it would look to arrange tuition in the future, once W had increased the amount of non-academic provision they could access. In response, the Council recommended the school re-refer W to its medical tuition team, which it did.
34. The following day, the Council issued its decision to amend W’s EHC plan.
35. Mrs X met with W’s school and the Council in mid-March 2023. The meeting noted W had benefited from counselling, swimming and the wellbeing sessions. W was on the waiting list for the online service using games and play and for a community group. W had access to an online learning service but was still not well enough to do any maths or English learning.
36. In late March, the Council’s medical needs tuition panel agreed to tutor W.
37. The Council issued its stage two response to Mrs X’s complaint in late March 2023. It said:
1. it accepted the stage one response was poorly structured, confusing, did not make clear what elements were upheld and did not answer all of her questions;
2. it accepted it had failed to secure the provision in W’s EHC plan and would “review the arrangements to ensure [W]’s education needs are met”;
3. it accepted W could not attend school due to medical needs. It said it would take as a learning note that “when a child is no longer able to attend their named setting due to medical needs that schools and the SEND Team liaise to ensure consistency of education provision”;
4. the medical needs tuition panel had properly considered W’s first referral and concluded the Council needed to review W’s EHC plan, which it had been doing. It would address her concerns about the quality of the provision the school had put in place during the review. It therefore did not agree it owed W the alternative provision duty; and
5. it accepted it had not reviewed W’s EHC plan within the statutory timescales and apologised.
38. Medical needs tuition began in mid-April 2023. Notes of the tuition from the end of the month show W had increased to two one-hour sessions per week.
39. The Council issued W’s final amended EHC plan in mid-May 2023. It included more special educational provision, almost all of which needed to be provided in a school type setting.
40. In late May 2023, Mrs X told the Council W was feeling much better and the medical needs tutor was working well. By the end of the month, W attended five hours of tuition per week. Due to W’s needs, none of the provision was academic in nature and instead focused on increasing W’s engagement with provision.
41. Records of the sessions do not explicitly state whether the tutor used the strategies set out in W’s EHC plan. However, they do show the tutor was experienced in techniques used to help children with needs like W’s, including the use of sensory experiences.

Response to my enquiries

42. The Council told me it had introduced a new system to allow schools to refer children out of education for health reasons. The last phase was due for completion in October 2023 and consisted of a training programme for education staff. The Council also explained it had hired a new manager responsible for making sure it learns from complaints about special educational needs.
43. The Council said it was aware children were waiting too long for their annual reviews. It was reviewing its procedures and processes following an Ombudsman investigation.

Findings

Failure to arrange suitable alternative provision

44. The Council became aware W was out of education on health grounds in early December 2022. Its attendance team spoke to the school, which offered W provision out of school. Shortly after, the Council confirmed the school was sending work home to W and Mrs X had taken over home schooling. There was no fault in the Council’s decision not to arrange alternative provision at that point, so I cannot question it. At the point Mrs X told the school she could no longer home school, the Council had received the school’s referral to its medical needs tuition team and considered it without notable delay in mid-January 2023.
45. However, the Council was at fault in how the medical needs tuition panel considered W’s referral. The duty to arrange alternative provision is based on the test of whether the child would receive a suitable education if the council did not make other arrangements. It is distinct from the duty to secure the special educational provision in a child’s EHC plan.
46. A council may ask a school to use the funds available to it (including those received to provide a child’s EHC plan provision) to arrange provision outside of school, but the test for the council remains the same. There is no evidence the panel considered whether the provision already in place for W constituted a suitable education in the context of them not attending school. Instead, the panel focused on the fact that the diagnoses which caused W to have special educational needs were also the reason W was not in school. This led it to conclude the school should arrange W’s education and recommend an annual review to review W’s special educational provision. The panel did not consider the correct test, so its decision-making was fault.
47. Following the panel’s decision, the school worked with Mrs X to arrange a package of provision, which it aimed to increase as W’s needs would allow, before introducing tuition. The Council had oversight over W’s education through the mid-January 2023 annual review and contact with W’s school. It recommended the school re-refer W for medical needs tuition and in the meantime attended the mid-March 2023 meeting where it heard an update on W’s education package. I am satisfied the Council had appropriate oversight over W’s education and was therefore not at fault in how it decided it did not need to arrange alternative provision in that period.
48. The Council subsequently agreed to provide alternative provision in the form of medical needs tuition in late-March, which began without delay in mid-April 2023 alongside W’s other provision. It was not at fault in this period.
49. I have considered whether the fault in how the Council’s medical needs tuition panel considered W’s first referral meant W missed out on provision they could have had. Given W’s circumstances had not substantially changed by the time the Council agreed to provide tuition in late-March, on balance I am satisfied that but for the fault, it would have made that decision in mid-January 2023. This meant W could have had the provision ten weeks earlier. The fault caused Mrs X distress. I have made recommendations below to address Mrs X’s and W’s injustice.

Failure to secure the special educational provision in W’s EHC plan

50. W’s EHC plan was designed to meet their special educational needs in a school setting. The provision in the plan involved use of strategies by teachers and other staff to help W manage their conditions and access learning. As a result, when W was no longer able to attend school, that provision was no longer available to them. That was not Council fault.
51. Although records of the medical needs tuition do not explicitly show the tutor used the strategies in W’s EHC plan, they do show the medical needs tutor used approaches designed to support children with needs like W’s. Evidently W benefited from those approaches, as evidenced by the increase in hours per week W was able to manage. The Council was not at fault.

Delay in carrying out W’s EHC plan annual review

52. The Council should have completed W’s annual review by early January 2023; one year after the date of W’s first EHC plan. The Council’s stage one complaint response wrongly stated it had completed W’s annual review only eight days late. It based this on the fact that it had held the annual review meeting in mid-January 2023. The annual review is made up of the meeting and subsequent decision to amend, maintain or cease the relevant EHC plan. The Council had not completed the annual review at the time of its complaint response. This incorrect information was fault and caused Mrs X frustration.
53. The Council did not issue its decision to amend W’s EHC plan and complete the annual review until early February, five weeks late. This delay was fault and caused Mrs X further frustration.
54. The Council was also at fault for delay in amending W’s plan after the annual review. Councils should take no more than twelve weeks from the date of an annual review meeting to issue a child’s EHC plan. The Council took seventeen weeks. The delay caused Mrs X further avoidable frustration. However, it did not cause W a significant injustice because although there was additional provision in the new plan, the vast majority of it could not be meaningfully delivered outside of a school setting.

Failure in complaints handling

55. The stage two complaint response accepted the stage one was confusing, poorly structured and did not answer all of Mrs X’s questions. I agree with this conclusion.
56. However, the stage two complaint response was also flawed. It was confusingly worded and failed to identify the fault in the first tuition panel’s consideration of W’s case. It also wrongly stated the Council did not accept it owed W the alternative provision despite the fact it had recently agreed to provide medical needs tuition. Importantly, despite acknowledging it had been at fault in some areas, the recommendations the Council identified were vague, did not have a timescale for completion, clear points of action or a measurable outcome.
57. The poor complaint responses were fault. While I welcome that the Council apologised to Mrs X for the quality of the stage one response and note it spoke to the member of staff responsible, I do not consider this appropriately remedies the level of frustration Mrs X experienced due to the fault. I have therefore made a recommendation below.

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Agreed action

58. Within one month of the date of my final decision, the Council will take the following action.
1. Apologise to Mrs X for the frustration she felt due to the delays carrying out W’s annual review and its poor complaint responses and for the distress she felt due to the tuition panel’s flawed consideration of W’s referral.
2. Pay Mrs X £250 in recognition of that frustration and distress.
3. Pay Mrs X £600 to recognise the impact of the lost provision on W. This takes into account the provision W missed out on, their age and their ability to engage with that provision had it been put in place.
4. Remind staff in the medical needs tuition team that when considering a referral for tuition, the test they should apply is whether the child would receive a suitable education without the Council making arrangements.
5. Provide the Ombudsman with evidence it has completed the training programme for staff on the new alternative provision school referral process.
6. Remind staff that the recommendations they make for service improvements as part of complaint responses should be SMART (specific, measurable, achievable, realistic and time-limited).
59. The Council will provide us with evidence it has complied with the above actions.

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Final decision

60. 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.

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Investigator's decision on behalf of the Ombudsman