Summary: Mrs B complained the Council delayed telling her of its intention following a review of her son’s education, health and care plan and failed to act to ensure her son received education when the school sent him home and then placed him on a part-time timetable. There is no fault in how the Council dealt with provision of education. The Council failed to identify the school had not provided the annual review paperwork which delayed the overall process but likely did not affect the education provided to Mrs B’s son. An apology and payment to Mrs B, introduction of a process for managing annual reviews and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• delayed telling her of its intention following a review of her son’s education, health and care plan (EHCP) in November 2019; and
• failed to act to ensure her son received education when the school began sending him home and placed him on a part-time timetable.
2. Mrs B says the failures have caused significant stress, has affected her work and her son has missed out on education.

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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 cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. If we are satisfied with a Council’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)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

What should have happened

10. The special educational needs code of practice (the code) says the school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the annual review meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHCP and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting
11. The code says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended.
12. The Council’s guidance on reduced timetables (the Council’s guidance) refers to the Council’s statutory responsibility to identify and track any pupil missing education. It says that one of the circumstances in which the law allows the temporary use of a part-time/reduced timetable is where a pupil is experiencing mental health problems that are manifesting themselves in behaviour and making it increasingly difficult for them to cope with full-time attendance.
13. The Council’s guidance refers to the DFE school attendance guidance which says in very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil's individual needs. It says this must not be treated as a long-term solution. It says any pastoral support programme or other agreement must have a time limit by which point the pupil is expected to attend full-time or be provided with alternative provision.
14. The Council’s guidance says DFE statutory guidance on exclusion from maintained schools makes clear informal or unofficial exclusions such as sending pupils home to cool off are unlawful, regardless of whether they occur with the agreement of carers or parents. It says exclusion of the pupil, even for a short period of time, must be formally recorded. It says as part of a reduced timetable agreement or unofficial exclusion a pupil must not be sent off the school premises.
15. The Council’s guidance says a reduced timetable is not the automatic solution but a period of a reduced timetable can be a valuable strategy to support a pupil to enable them to achieve success. Schools may therefore exceptionally consider a short period of part-time attendance as part of a broader package of support. It says the school must have a clear and evidenced rationale for considering the reduced timetable as an appropriate intervention and have considered all reasonable adjustments.
16. The Council’s guidance says the school must not pursue a reduced timetable without parental permission as that could be construed as an unofficial exclusion. It says the school must have signed parental consent and if the parent does not agree the reduced timetable arrangements cannot be implemented and the school will have to consider alternative interventions.
17. The Council’s guidance says the school must provide sufficient and appropriately differentiated work for any time the pupil is not attending school.
18. The Council’s guidance says the school must complete a detailed action plan (PSP) demonstrating a clear path of planned reintegration from part-time to full-time provision over a maximum of six weeks. It says a maximum of one further period of six weeks should only be agreed in exceptional circumstances and with parental agreement. It says when the reduced timetable is introduced because of behaviour it will rarely be appropriate to repeat the intervention. It says different interventions need to be utilised if the reduced timetable failed the first time round.
19. The Council’s guidance says the school must notify the Council of the child on a reduced timetable as soon as it becomes operational.

What happened

20. Mrs B’s son has an EHCP and in 2019 was attending a mainstream school. Mrs B contacted the Council in October 2019 because her son had been struggling since returning to school and the school had struggled to manage his behaviour. Mrs B asked the Council to consider a specialist placement for her son. The Council agreed to hold an early annual review of the EHCP. That review took place in November 2019. The Council should have received the annual review paperwork from the school within two weeks. However, the school did not follow the right process and the Council did not receive the paperwork. In the meantime the caseworker allocated to the case moved jobs and a different caseworker took over.
21. Mrs B chased the Council for an update in November and December 2019. In December the previous caseworker passed the details received from the school to the new caseworker and said she had not received the annual review paperwork.
22. Mrs B contacted the new caseworker again in January 2020. The caseworker contacted the school and asked for the review papers. The school provided those papers on 30 January 2020. The papers did not request a special school and instead asked for funding for additional hours. Mrs B says by that point her son was regularly being sent home from school early as the school could not manage his behaviour.
23. Following a meeting with the school Mrs B’s son was placed on a part-time timetable from 5 February. Shortly after the part-time timetable began Mrs B signed an agreement for the part-time timetable for two weeks.
24. On 5 February 2020 the Council told Mrs B it had received the report from the most recent annual review and said it would send her an amendment notice detailing the changes it agreed to. Mrs B says she did not receive that notice.
25. The caseworker contacted the school on 6 February to advise the annual review paperwork did not provide enough evidence for the Council to seek funding for a special school. The caseworker told the school it would need to show it had sought information from specialist services. That prompted the school to make a referral to the behaviour outreach support service.
26. At the end of the two week part-time timetable the school extended it. The school asked Mrs B to sign a new agreement, which she declined to do. The Council noted on 17 February Mrs B’s son was still on the part-time timetable.
27. The Council completed an annual review on 18 March which recommended a specialist school for Mrs B’s son. Shortly after that schools went into lockdown due to Covid 19.
28. The Council began consulting special schools in April. The school identified by Mrs B told the Council it could not provide a place for Mrs B’s son. The Council consulted further schools in May. One of the schools said it could potentially offer Mrs B’s son place but they would need to meet with him first. The school could not do that due to Covid 19 restrictions.
29. Pupils returned to the school Mrs B’s son was on roll for on 1 June. Mrs B told the Council her son would not be returning as she was not satisfied the school could provide for his needs.
30. The Council issued a final amended EHCP on 11 June which identified the need for a specialist school, although the plan did not name a school.
31. A specialist school offered Mrs B’s son a place in June 2020. Mrs B told the Council she did not consider the school suitable for her son. The Council therefore agreed not to name the school in the EHCP.
32. Mrs B provided details of another school she wanted the Council to consult and the Council sent a consultation in August 2020. The school told the Council it did not have any availability until September 2021.
33. On 21 August 2020 Mrs B appealed to tribunal in relation to the EHCP.
34. The Council sent further consultations to other schools in August 2020. Mrs B said she would not return her son to his allocated school due to his anxiety. The school continued to provide work for him to complete at home.
35. In November 2020 the Council agreed to consult independent schools outside its area. The Council identified an independent school but Mrs B again asked for one of the schools which had previously said it was full. The Council consulted that school again.
36. Tribunal was due to take place in December 2020 but was adjourned to allow Mrs B to visit a school that had offered a place. Mrs B’s son started at that school on 10 March 2021.

Analysis

37. Mrs B says the Council delayed telling her about its intention following a review of her son’s EHCP in November 2019. The SEN code of practice sets out the timescales required following annual reviews, which I refer to in paragraphs 10 and 11. The Council accepts it did not comply with those timescales in this case. The Council says that was because the school failed to follow the right process which delayed it receiving the annual review paperwork.
38. The actions of the school fall outside the Ombudsman’s jurisdiction and I therefore cannot comment on any delay by the school. Nevertheless, the Ombudsman would expect the Council to have in place a process to identify when it does not receive annual review paperwork from schools following the annual review meeting. In this case I consider the matter was complicated by the fact the caseworker for Mrs B’s son changed shortly after the annual review meeting. It is possible if this had not happened the existing caseworker might have identified the missing paperwork. However, failure to chase the school to obtain the missing paperwork is fault and delayed action on Mrs B’s son’s EHCP until February 2020. The Council accepts its processes were inadequate as it says its caseworkers are now required to use their diaries to follow up on missing paperwork. I welcome that, although I am not convinced that would have made a difference in this case given the caseworker changed. I therefore recommended the Council introduce a process to ensure missing annual review paperwork is chased, irrespective of whether the caseworker is still involved in the case or at work. The Council has agreed to that recommendation.
39. I am also concerned in this case the new caseworker did not action the emails forwarded by the previous caseworker. If she had, this should have alerted her to the fact the school had not provided the annual review paperwork. Again, if the new caseworker had identified that this would have reduced any delay. In addition to that, the handover notes from the previous caseworker were not comprehensive and were not clear that an annual review had taken place. Instead, the previous caseworker recommended a further annual review. Again, if those notes had been clear the new caseworker may have been clearer about the fact the annual review paperwork had not been received. I therefore recommended the Council carry out some training for caseworkers on the action they need to take following the completion of an annual review and the need for detailed handover notes when the caseworker is changed, alongside the process I refer to in the previous paragraph. The Council has agreed to that recommendation.
40. In terms of the specific injustice to Mrs B and her son, I am not convinced earlier completion of the annual review paperwork would have resulted in a different outcome. That is because in the annual review paperwork completed by the school in January 2020 did not clearly say the school could not provide education to Mrs B’s son. Instead it asked for extra support. It was not until the Council completed a further review in March 2020 that the need for a specialist school was identified. Given the country then went into lockdown and the Council had difficulty identifying a suitable special school with places I could not say earlier action on the annual review would have produced a different outcome or earlier provision of education for Mrs B’s son. However, Mrs B has suffered frustration and has had to go to time and trouble to pursue her complaint. To remedy that I recommended the Council apologise to her and pay her £350. The Council has agreed to my recommendations.
41. Mrs B says the Council failed to act when the school began sending her son home early in January 2020 or when it placed him on a reduced timetable from February 2020. Having considered the documentary evidence I have found nothing to suggest the Council knew the school sent Mrs B’s son home early throughout most of January 2020 at the time. In those circumstances I have no grounds to criticise the Council. As I said earlier, the Ombudsman does not have jurisdiction over the actions of the school.
42. I am satisfied though the Council knew about the school introducing a part-time timetable in February 2020. The evidence I have seen satisfies me this was initially introduced for a two-week period. As I said in paragraph 16, the Council’s guidance requires parents to sign an agreement before a part-time timetable can be introduced. In this case there is no evidence Mrs B and her husband signed the agreement for the part-time timetable before it began in February 2020. I am, however, satisfied shortly after the school introduced the part-time timetable in February 2020 Mrs B signed an agreement for the two week period. As the school had followed the guidance at that point I have no grounds to criticise the Council as there was no action for it to take.
43. It is clear though the school extended the part-time timetable and asked Mrs B to sign a new agreement. It is also clear Mrs B and her husband declined to do so. There is no documentary evidence to show the Council knew Mrs B had not signed a further agreement. Despite that though I am satisfied the Council liaised with the school to get it to follow the guidance and try all avenues of support for Mrs B’s son. I am also satisfied the situation had developed further by March 2020 when another review took place which resulted in the decision to seek a specialist school placement. By that point all sides accepted a specialist placement was needed and the allocated school could not meet Mrs B’s son’s needs. Taking into account the timescales involved and the Council’s attempts to get the school to follow the right process in terms of getting support for Mrs B’s son I do not criticise the Council for its actions in February 2020. I also do not consider it likely if the Council had taken alternative action it would have resulted in any different provision for Mrs B’s son given the school had made clear by March 2020 it could not meet Mrs B’s son’s needs and the Council had difficulty finding a place at a suitable school.
44. Mrs B is also concerned about the delay identifying suitable education for her son. I understand Mrs B’s concern given her son did not start his new school until March 2021. However, I am satisfied the delay occurred because the Council could not find an alternative placement for Mrs B’s son when it initially began consulting special schools. Mrs B also appealed to tribunal about the failure to name a specialist school in her son’s EHCP in August 2020. That means any action by the Council from the point at which Mrs B put in her appeal is outside the Ombudsman’s jurisdiction. I therefore cannot comment on what happened after August 2020. As I am satisfied the Council took appropriate steps to try and identify a school placement before August 2020 and the evidence is clear it could not identify an alternative school place I have no grounds to criticise it.

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Agreed action

45. Within one month of my decision the Council should:
• apologise to Mrs B for the delay completing the annual review process which caused her frustration and uncertainty about whether the situation for her son would have been different;
• pay Mrs B £350 to reflect her frustration and the time and trouble she has had to go to pursuing her complaint;
• set up a process to ensure the Council can identify when schools have not provided the paperwork for annual reviews within the required timescale; and
• carry out training for SEN caseworkers on the need to complete detailed handover notes and on how to manage annual review cases, taking into account the process set up as part of the previous bullet point.

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Final decision

46. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman