Summary: The Council failed to arrange alternative provision for several months when Ms X’s child, Z, was no longer able to attend their school. The Council also significantly delayed finalising Z’s Education, Health and Care Plan following their annual review. The Council’s faults have caused four months of missed provision for Z and caused uncertainty and distress to Ms X. The Council has agreed to apologise, pay Ms X £1,450 and carry out service improvements.

The complaint

1. Ms X complains the Council:
1. failed to put in place alternative provision for her child, Z, when they could no longer attend their mainstream school from September 2023;
2. delayed putting in a request for a specialist school placement to an internal council panel;
3. delayed reviewing and finalising Z’s Education, Health and Care (EHC) Plan; and
4. sent a draft EHC Plan to an internal council panel which did not reflect Z’s needs.
2. Ms X says the Council’s faults have caused Z to miss out on education and caused her frustration, distress and financial loss.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I considered the information provided by Ms X and the Council.
8. I considered the relevant law and guidance as set out below.
9. I considered our Guidance on Remedies.
10. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

Back to top

What I found

Law and guidance

Alternative provision

11. 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.
12. As soon as it is clear the child will be away from school for 15 days or more because of their health needs the council should arrange suitable alternative provision.
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))

Education, Health and Care (EHC) Plans

14. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections including but not limited to:
• Section B: Special educational needs; 
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and / or type of educational placement.

Reviewing EHC Plans

16. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC plans must be reviewed as a minimum every 12 months (para 9.166);
• the school or council must prepare and send a report of the review meeting to all invitees setting out the recommendations on any amendments to the EHC plan, and referring to any difference of views between the educational setting and other attendees, within two weeks of the review meeting (para 9.176);
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195); and
• Within twelve weeks of the annual review meeting, the final, amended EHC plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

What happened

Background

17. Z has additional needs and has an EHC Plan. Z attended School A, a mainstream school, when this complaint period began. While there, Z’s EHC Plan said they should receive extra support due to their needs.
18. Due to changes in Z’s needs they began to find School A increasingly challenging. By the end of the 2023 summer term, Z was no longer managing the already reduced timetable at School A and their hours were reduced from two hours per day, to 45 minutes per day. Z’s needs then changed further due to incidents over that Summer holiday.

Key events

19. On 3 September 2023 Ms X told School A that Z would not be able to attend school starting this year due to the issues Z experienced over the holidays. She asked the school to let the Council know so alternative provision could be arranged for Z.
20. The school arranged an emergency annual review for Z and invited the Council but the Council did not attend. At the annual review on 26 September 2023, the school offered a reduced, personalised curriculum for Z either on site, or using online learning but Ms X said this would not be suitable and Z required specialist provision.
21. By the end of the meeting, the school agreed with Ms X that Z’s needs likely could no longer be met in a mainstream setting. They discussed various forms of alternative provision the school could arrange. The school informed the Council of the change in plans for Z’s education by sending it the annual review documents, which the Council received on 21 October 2023.
22. The Council’s process for changing a young person’s provision to specialist, is to seek approval from an internal Council panel. It didn’t submit its request for a specialist placement for Z until early January 2024. The panel responded in late January to say it could not make its decision based on the EHC Plan it had been sent as it had not been updated to reflect their changed needs.
23. The Council decided to amend the Plan and sent Ms X the first draft version of the EHC Plan in January. This went to several further drafts between then and March.
24. The Council submitted a request to its panel again in late February and the panel provided its decision on 14 March. The panel decided based on the updated information, that the Council should explore a specialist placement for Z.
25. From February 2024 Z began receiving alternative provision which Ms X said was suitable. This included specialist tutoring and several other types of activity.
26. The Council finalised Z’s EHC Plan in May 2024. Ms X and the Council are still in the process of seeking a suitable specialist school placement for Z.

My findings

Complaint 1a - failed to put in place alternative provision

27. The Council became aware Z was no longer receiving education at School A on 21 October 2023 when it received the annual review documents from the school. It knew by this point that Z had been out of education for longer than 15 days and it was therefore under a duty to arrange alternative provision for them.
28. However the Council has accepted it failed to arrange any alternative provision for Z until February 2024. This delay caused Z to avoidably miss out on four months of suitable alternative provision, which was an injustice to them at an already challenging time. This also caused Ms X a period of avoidable frustration and distress.
29. I have not held the Council responsible for the period before 21 October, as we only expect the Council to act once it becomes aware of the issue. Ms X can raise a complaint to the school, but we cannot investigate the school’s actions as the law prevents us from investigating most complaints about schools.

Complaints 1b and 1d - delayed requesting specialist education with the Council’s panel and sent the panel out of date information

30. The Council delayed by several months in submitting a request for a specialist placement to its internal panel. This was fault. It then failed, in its initial request, to provide enough up to date information for the panel that was clearly necessary to make its decision. This led to further delay, due to the need for a resubmission. This was further fault.

Complaint 1c - delayed reviewing and finalising Z’s EHC Plan

31. The Council delayed significantly in reviewing Z’s EHC Plan, in part due to the faults above relating to the panel submission. The whole process should have taken no more than twelve weeks and instead it took the Council 31 weeks. This was also fault.
32. The faults highlighted in paragraphs 30 and 31 caused Ms X avoidable frustration, distress, and uncertainty about whether Z may have been in a suitable school placement sooner if not for the fault.

Back to top

Agreed action

33. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults identified above;
2. Pay Ms X £1,100 to reflect the four months Z was without any suitable alternative provision; and
3. Pay Ms X £350 to reflect the distress, uncertainty and frustration she was caused by the Council’s faults in this case.
34. Within three months of the date of the final decision, the Council has agreed to:
1. Demonstrate that it has taken steps to improve its timeliness for progressing annual reviews;
2. Remind SEND Officers of the importance of submitting up to date information to its internal panel when seeking specialist placements for them and consider whether officers should have access to a basic checklist of what the panel requires, for officers to use before submitting requests; and
3. Demonstrate that it has investigated what led to the delays in arranging alternative provision in this case after the Council became aware that no education was being provided and has taken steps to prevent such delays in future.
35. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay Ms X a financial remedy and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman