Summary: Mrs X complained the Council failed to arrange suitable education for her child, W, when they stopped attending school in February 2023. Mrs X also complained about how the Council dealt with two annual reviews of W’s Education, Health and Care Plan. The Council was at fault. This meant W missed out on education, Mrs X’s right of appeal was delayed and she was caused frustration. The Council made a suitable offer of a financial remedy and it is open to Mrs X to accept it.

The complaint

1. Mrs X complained the Council failed to arrange suitable education for her child, W, when they stopped attending school in February 2023. Mrs X also complained about how the Council dealt with two annual reviews of W’s Education, Health and Care Plan and that the Council’s communication with her was poor.
2. Mrs X said this meant W missed out on education they should have had, which impacted on their mental health. She also said the Council’s actions caused her upset and frustration.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Mrs X complaint about W’s education dates back to February 2023 but she did not complain to us until late July 2024. Therefore, the period February 2023 to July 2023 is late. I have seen no good reason to consider the late period, so I have only investigated August 2023 to July 2024.

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How I considered this complaint

7. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mrs X and the Council 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
10. 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)

Education, Health and Care Plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 contains the special educational provision the child needs, while section I names the school or type of school the council has decided the child will attend.
12. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND tribunal or the council can do this. 

Special educational provision

13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

EHC Plan annual reviews

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
15. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. If a council decides to amend an EHC Plan, it sends a draft amended version of the Plan to the child’s parents or the young person. The council also sends the draft amended Plan to potential new schools if it is considering changing the child’s placement. Following comments and consultations with schools, the council issues the final amended EHC Plan. Case law sets out this should happen within 12 weeks of the date of the review meeting.

Reassessments

17. A child’s EHC Plan may need new professional advice as their needs and circumstances change. If the advice necessary is limited in scope, the council may obtain it and then hold an annual review to consider amendments to the Plan. If the EHC Plan needs substantially, the council may decide to carry out a reassessment, which should take no more than 20 weeks to complete.

What happened

18. This section sets out the key events in this case and is not intended to be a detailed chronology.
19. W is on roll at a secondary school (school A) and has an EHC Plan. In February 2023, W stopped attending school, which Mrs X says was due to their mental health. Mrs X says from February 2023 onwards, W received 30-to-40-minute visits with a school behavioural mentor once or twice a week.
20. In June 2023, school A held an early EHC Plan annual review meeting. The meeting heard W was not attending and school A felt it could not meet W’s needs.
21. In July 2023, Mrs X asked the Council to arrange alternative provision for W while they were out of school.
22. School A held a further annual review meeting in early January 2024. The Council received the outcome of that meeting and decided to amend W’s EHC Plan. In early March 2024, the Council sent Mrs X a draft amended Plan.
23. Mrs X responded to ask the Council about funding for school A to allow it to commission alternative provision from her preferred service, organisation B.
24. The Council asked school A for an update on arrangements for W to attend organisation B. In late April 2024, school A gave the Council a quote for the alternative provision at organisation B.
25. In mid-May 2024, the Council decided to carry out an EHC Plan reassessment for W.
26. In early July, a Council decision-making panel considered Mrs X’s request for alternative provision. The panel decided it needed more information from school A to show why it needed more funds to arrange provision at organisation B.
27. The Council issued a draft amended EHC Plan in late July 2024 and issued the final EHC Plan in late August 2024. The Plan named school A in section I. Mrs X is unhappy with the content of section F and that the Plan names school A.
28. W’s EHC Plan noted Mrs X felt W needed therapeutic support and education at home, gradually building up to more sessions outside of the home.
29. Mrs X complained to the Council at stages one and two of its complaints procedure. In summary, the Council’s response said:
• It recognised its communication with her had been poor. Mrs X had complained she had sent seven emails between February and March and received no response and that it had failed to contact her after its stage one response as agreed. The Council offered Mrs X £200 in recognition of her injustice;
• It had chosen to ‘pause’ considering whether to arrange alternative provision while the reassessment was ongoing. It now saw that had been the wrong decision, which had caused Mrs X distress. It offered £100 in recognition of that distress;
• It accepted it had failed to act after school A held the early annual review meeting in June 2023;
• It accepted this had delayed it acting on W’s difficulties attending school A and delayed Mrs X’s right to appeal to the SEND Tribunal. It offered her £400 in recognition of her injustice.
• It said evidence showed that during W’s first ten months out of school from February 2023, school A had tried various strategies to help them attend but it should have made a referral to the Council’s Education Support for Medical Absence (ESMA) team. The Council said the ESMA team would have assessed W to see if it should support them directly, and could have suggested extra resources for school A to use;
• It accepted it had failed to maintain oversight of W’s provision while they were out of school, which meant it did not realise school A had not referred W;
• It offered Mrs X £3,600 in recognition of the impact of the lost educational provision on W between June 2023 and July 2024;
• It offered an apology for the injustice Mrs X and W had experienced because of its failings; and
• It said it had put a Special Educational Needs and Disabilities (SEND) Improvement Plan in place since December 2023 which included steps it would take to improve its annual review processes. It said it had also increased the number of staff in its EHC review team.

Findings

Educational provision

30. The Council became aware W was not attending school A in June 2023 after school A held the early annual review. It received further confirmation in July 2023, when Mrs X asked it to arrange alternative provision. At this point, the Council should have acted promptly to explore whether it agreed W was out of school on medical grounds and therefore whether it should arrange alternative provision for W. It should also have considered whether it needed to take action to secure the special educational provision in W’s Plan. It should have kept W’s case under review, to ensure that where it needed to act, it did so without delay.
31. The Council accepts it failed to do this, which I agree was fault. I am particularly concerned to note the Council had decided to ‘pause’ considering whether to arrange any alternative education while it carried out W’s EHC Plan reassessment, which began in May 2024. Although the July 2024 decision-making panel did ultimately consider whether the Council should fund alternative provision, it appears nothing was done after the panel as a result of the ‘pause’. Neither the duty to arrange alternative provision nor the duty to secure the special educational provision in a child’s EHC Plan allow for a ‘pause’ while other work is ongoing. It is positive the Council’s complaint response recognised this was the wrong decision and that it caused Mrs X distress. The Council offered Mrs X £100 to recognise her distress, which is an appropriate remedy.
32. In its complaint response, the Council said its fault meant W missed out on educational provision they should have had, and it offered £3600 in recognition of W’s injustice. The Ombudsman’s guidance on remedies recommends between £900 and £2,400 per term of lost alternative and special educational provision. Taking into account W’s age, the special educational provision in their EHC Plan and their ability to engage in any provision that could have been offered to them, I am satisfied the Council’s offer of £3600 total (£1200 per term) is suitable. I have therefore recommended the Council make that payment.

Annual reviews and reassessment

33. The Council accepted it failed to complete W’s 2023 annual review after school A held an early annual review meeting in June 2023. Had it done so, and decided to amend W’s EHC Plan, the Council would have issued W’s final Plan by September 2023. This would have given Mrs X her right of appeal to the SEND Tribunal if she felt the special educational provision or setting named in the Plan were unsuitable for W given their increased mental health difficulties. The Council’s failure was fault and meant Mrs X was denied her right of appeal, which caused her frustration.
34. The Council has offered Mrs X £400 to recognise her injustice and apologised. This remedy is in line with the Ombudsman’s guidance on remedies so I have recommended the Council make the payment. I am also satisfied the actions set out in the Council’s SEND Improvement Plan are suitable to prevent the faults identified in paragraphs 31 and 33 so I have not recommended further actions.
35. After school A held an annual review meeting in January 2024, the Council began to amend W’s EHC Plan. It issued a draft in March, but then decided to reassess W. The Council was entitled to make that decision if it felt W’s EHC Plan would be inadequate even with amendments, so was not at fault.
36. The Council made its decision to reassess W in mid-May 2024. It should have completed the reassessment within 20 weeks; by early October 2024. The Council issued W’s EH Plan in August 2024, within the statutory timescale. There was no delay so the Council was not at fault.
37. It is open to Mrs X to appeal to the SEND Tribunal to change the provision in section F of W’s August 2024 EHC Plan and to have school A removed from section I.

Communication

38. The Council’s communication with Mrs X was poor and was fault. Many of Mrs X’s attempts to speak to the Council went unanswered and the Council failed to contact her after its stage one response, when it said it would. This fault caused Mrs X avoidable frustration. The Council has apologised and offered Mrs X £200 in recognition of her injustice. This was an appropriate remedy so I have recommended it make that payment.

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Agreed action

39. Within one month of the date of my final decision, the Council will pay Mrs X a total of £4300 in recognition of her and W’s injustice.
40. The Council will provide us with evidence it has complied with the above action.

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Final decision

41. I have completed my investigation. The Council has accepted it was at fault and offered Mrs X a suitable remedy for her and W’s injustice.

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Investigator's decision on behalf of the Ombudsman