Summary: We found the Council delayed issuing Y’s Education Health and Care Plan and failed to provide alternative education between March 2024 and September 2024. We recommended an apology and a payment to recognise the impact.

The complaint

1. Miss X complains that the Council failed to provide her daughter with an amended Education Health and Care Plan (EHC Plan) within a reasonable timescale following an annual review in March 2024. She also complains that her daughter did not receive a suitable education from March 2024. She says this has affected the mental health of her daughter and herself and affected her daughter’s education.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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(1), 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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How I considered this complaint

5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. Miss 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

Special Educational Needs (SEN) Statutory Guidance

7. Statutory guidance states that councils must arrange for an Education Health and Care Plan (EHC Plan) to be reviewed at least once a year to make sure it is up to date. Councils must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The process is only complete when a council issues a decision about the review.
8. 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. 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) 
9. 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194).  Case law sets out this should happen within four weeks of the date of the review meeting. Councils should then issue any final amended plan within 8 weeks of the amendment notice. Therefore, a final plan must be issued within 12 weeks of the review meeting.

Education Act 1996 & Alternative Education guidance

10. The law says that 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. This duty 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)

What Happened

11. Y struggled to adapt when she moved from primary to secondary school in September 2023. As a result, her attendance at school was low.
12. At the annual review of Y’s EHC Plan in March 2024, the Council was made aware of Y’s lack of attendance at school. Miss X explained that support put in place by Y’s school had not resolved things and Y had sensory overload and high levels of anxiety. Attendance records show that Y’s attendance at school in 2024 had been minimal.
13. At the annual review meeting it was agreed that details of alternative education placements would be provided to Miss X and funding for these would be applied for. No change of placement was agreed at the review meeting.
14. In early June 2024 Miss X complained about a lack of contact and progress. A meeting took place in mid-June at which the Council confirmed funding would be provided for alternative education for Y.
15. The Council told us Miss X requested alternative education at a farm placement in July 2024. The Council agreed attendance could be considered in the short-term, as alternative provision. However, it could not be a long-term educational placement or named in the EHC Plan as it was not a school setting. The placement could not start until September 2024.
16. On 31 July the Council confirmed it would amend Y’s EHC Plan. It sent a draft plan proposing the relevant amendments on 8 August 2024.
17. I understand that Y attended the farm placement from September 2024 for 15 hours per week, while remaining on the school roll with the aim that Y would attend some sessions in school in addition to this. As at October 2024 Y expressed interest in attending school for some lessons.
18. On 8 October 2024 the Council issued a new EHC Plan naming the same school for Y to attend. I am aware that Miss X considered the school was not able to meet Y’s needs and this resulted in Y not attending the school along side the alternative farm placement.
19. We generally cease investigating a complaint about a child having a lack of educational provision at the point that a new EHC Plan is issued. This is because if a parent disagrees with the placement that is named, they can appeal against it via a Tribunal. We consider that any dispute about the provision of education cannot be separated from issues that can be appealed. So, we end our investigation when an EHC Plan is issued, when appeal rights are available to a parent.
20. Ms X told us the delays in issuing the EHC Plan and the lack of education caused her stress and depression and affected her relationship with Y.

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Was there fault by the Council

Education Health and Care Plan (EHC Plan) Timescales

21. The Council reviewed Y’s EHC Plan in March 2024. This was within 12 months of the previous review. Within four weeks of the review, the Council should have decided whether it intended to amend the plan. In cases where a council intends to amend an EHC Plan, they should also provide the proposed draft EHC Plan by this date.
22. In Y’s case the Council should have confirmed its decision and provided a draft EHC Plan by 3 April 2024. The Council confirmed it would amend the EHC Plan on 31 July and sent the draft on 9 August. This was significantly late.
23. The whole process should be completed and the final plan should have been issued within 12 weeks of the review meeting. In Y’s case, the final plan was issued on 8 October, 30 weeks after the review meeting. This was 18 weeks late.
24. The delay in completing the review of Y’s EHC plan was fault by the Council.

Educational Provision

25. As at March 2024 the Council was aware that Y was not attending school and it agreed to ensure alternative education would be made available. However, there was a delay before alternative provision started in September 2024. As a result of the delays in taking action, Y did not receive alternative education for around one term between March 2024 and September 2024.
26. From September 2024 Y received provision at a farm placement for 15 hours per week. Y was also able to access her existing school place and the intention was that limited sessions at school would also be attended. I am satisfied in making this provision the Council had regard for its duty to make alternative provision while Y was not able to attend school full-time.
27. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the severity of the child’s SEN, whether some provision was made available and whether the school year was a significant one for the child. I understand Y received no educational provision between March 2024 and September 2024. Based on this and Y’s circumstances overall, I have recommended a remedy based on £1,800 per term, for one term.

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Action

28. Within four weeks of our final decision:
29. The Council should provide a written apology to Miss X and to Y for the delay in completing Y’s EHC Plan review and for the delay in providing alternative education.
30. To recognise the distress caused to Miss X for the delay in providing Y’s EHC Plan I recommend the Council pays her £200.
31. To recognise the delay in providing Y with suitable education between March 2024 and September 2024, the Council should make a payment to Miss X, for Y, of £1800.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman