Summary: The Council failed to act in 2019 when it became aware that Mr X’s grandson’s school could no longer meet his needs. It delayed in consulting with possible suitable placements and failed to arrange suitable alternative provision when the child could not attend school. The Council also delayed in issuing an amended education, health and care plan following the annual review in October 2020 and failed to issue a final plan. In recognition of the injustice caused, the Council has agreed to issue a final EHCP and provide the child with suitable alternative education until it secures a new placement for him. It has also agreed to make a payment to Mr X.

The complaint

1. Mr X complains that:
• the Council has failed to ensure that provision was fully made under his grandson, C’s, education, health and care plan (EHCP) over the last two years;
• C has been without a school place since the pupil referral unit (PRU) he was attending closed in 2021. The Council has failed to find an alternative suitable school and has failed to make suitable alternative provision in the meantime;
• the Council has failed to issue a final EHCP following the annual review in October 2021; and
• Council representatives have failed to attend C’s annual reviews.

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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 an injustice, 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(i), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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. 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 all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
8. Mr 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

Legal and administrative background

Education, health and care plans

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s special educational needs (SEN) and the provision required to meet them.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in an EHCP has not been provided or where there have been delays in the process.
11. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHCP at least once every 12 months. The guidance says that, within four weeks of the Annual review meeting, the Council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
12. The guidance says that, where the council proposes to amend an EHCP, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parents or the young person. The parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHCP.
13. After receiving any representations from the child’s parents or the young person, if the council decides to continue with amending the EHCP, it must issue the final amended plan within eight weeks of the original amendment notice.

Alternative education

14. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of “illness, exclusion from school or otherwise” 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).
15. 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)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19 (6))
17. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
18. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they 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;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in reaching decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Pupil referral unit (PRU)

19. PRUs are a type of school specifically set up to provide education for children who are unable to attend school. PRUs do not teach the full curriculum. They are usually a short-term measure until the child can be returned to mainstream education.

Key facts

20. Mr X’s grandson, C, has learning difficulties. He lives with his grandparents.
21. In July 2018 a final EHCP was issued setting out the special educational provision C required.
22. C started at a mainstream high school (‘the School’) in September 2018.
23. An annual review was held in February 2019 which identified that C needed specialist provision.
24. In June 2019 C began attending a PRU because the school could not meet his needs. C was managing a full-time timetable within a small class environment and accessing one-to-one support for short periods of time. C was attending five days per week.
25. On 2 October 2020 an annual review was held. This stated that a change of placement was needed to support C’s special educational needs and his grandparents had requested a change of placement. The review stated that C needed a long-term specialist provision that would support his learning difficulties. The PRU wrote to the Council explaining the outcome of the annual review.
26. A draft amended EHCP was issued on 22 June 2021. This stated that C would transition to a specialist provision in September 2021.
27. The same day the specialist education panel (‘the panel’) considered the case and agreed the Council would consult with a specialist education provision. In July 2021 the provision confirmed it was unable to meet C’s needs.
28. In August 2021 the PRU closed.
29. In September 2021 the School provided online tuition for C at home but he was unable to engage with this.
30. The Council consulted another specialist school which responded in October 2021 stating it could not meet C’s needs.
31. The Council then consulted another specialist school which confirmed in December 2021 that it had no available capacity.
32. In December 2021 the head teacher at the School contacted the Council saying C had been out of education for a whole term and expressing “deepest concerns as to how this case has been managed”.
33. In January 2022 the Council met with the School to discuss provision. It was discussed that, although the School was providing online lessons, C needed further provision to support engagement outside the home. So the Council agreed additional funding for him to attend an accredited alternative education provision until a specialist provision could be found. The Council continued to consult with suitable longer term educational settings.
34. C began attending the alternative education provision in early March 2022 two days per week. Shortly afterwards a representative for the family wrote to the Council saying this was an unacceptable substitute for an education setting. He said C needed to attend five days per week and referred to the fact that the Council was aware C’s online learning programme had failed despite Mr and Mrs X’s efforts and was clearly not suitable for C. He also requested a review of C’s EHCP which he said had not been done “for years”.
35. In April 2022 the Council informed Mr X that, whilst it was continuing to look for a suitable long-term placement, it would now look at other provisions to work around the existing alternative education placement to further extend C’s access to education outside the home.
36. On 29 June 2022 the Council contacted the School requesting an annual review.
37. On 7 July 2022 an annual review was held. Following this the panel considered C’s case again. The Council then consulted three specialist schools. Two of these were unable to meet C’s needs and the remaining school was oversubscribed.
38. The Council has recently sourced a bespoke social and education package which it considers suitable for C. It sent information about the offer to Mr X in early October 2022.

Amending the EHCP

39. The Council was aware in 2019 that a change of placement was needed but did not take steps to amend C’s EHCP or begin the process of seeking a suitable specialist placement.
40. At the annual review in October 2020, it was again stated that a change of placement was needed. But the Council took no action to amend the EHCP. Nor did it seek a suitable alternative placement until June 2021.
41. Within four weeks of the review meeting the Council should have decided whether it proposed to keep the EHCP as it was, amend it, or cease to maintain it. The Council should have notified Mr and Mrs X of its decision. I have seen no evidence to suggest it did so.
42. There is no statutory time frame for how long the Council can take to issue an amended EHCP. But the Code says this should happen “without delay”. The Council did not issue an amended EHCP until 22 June 2021, nearly nine months after the annual review. This was clearly a significant delay and was fault.
43. The EHCP should have been finalised within eight weeks of the draft being issued. The Council has never issued a final version of the EHCP.
44. The Council accepts it should have finalised the plan within the statutory time scales rather than leaving it as a draft while it consulted with alternative educational settings. Failure to do so was fault.

Alternative provision

45. The Council has a duty to make alternative provision when a child is not able to go to school because of ill-health, exclusion from school or otherwise and where suitable education is not being provided by the school. Councils should ensure the child receives a suitable education as soon it is clear they will be away from school for 15 days or more.
46. A suitable education should consider the age and aptitude of the child and should include teaching by a teacher through online, group or one-to-one provision.
47. C was transferred to the PRU in June 2019 when it became clear the School could no longer meet his needs. This should have been a temporary measure while specialist provision was sought. However, C remained there for over two years.
48. C received some education during this period. He was taught in a small group and received one-to-one support. But a PRU does not cover the full curriculum and is not equivalent to a school place. I do not consider C’s special educational needs were being catered for during this period as there was no up-to-date EHCP in place.
49. When the PRU closed in August 2021 the Council was aware that C would not be attending school when term started in September 2021. So, it was under a duty to assess what suitable alternative education it could provide for C and arrange alternative provision without delay. But C received no alternative provision until early March 2022. The school provided some online learning, but this was not suitable for his needs.
50. Virtual learning can only be used to support direct teaching, not as an alternative. Statutory guidance states that where a child cannot attend school what is offered must be “on a par” with what is offered in school. That means direct teaching.
51. The Council should have put in place alternative provision when it was clear C would be out of school for more than 15 days, that is from 1 September 2021 when term started.
52. C received some alternative provision from early March 2022 when C began attending an alternative provision two days per week. This was later increased to three days per week. However, he was entitled to full-time provision. The law says provision should be full-time unless the physical or mental health of the child is such that this would not be in their best interests. As C was attending the PRU full-time until it closed there is nothing to suggest full-time provision was not in his interests. The Council has provided no evidence to suggest this was the case. So it should have arranged full-time provision for him.
53. I appreciate the Council has experienced difficulties in finding a suitable specialist provision that is able to meet C’s needs and has availability. However, it should have put in place suitable alternative provision until such time as it was able to find a suitable long-term specialist provision. Failure to do so was fault.

Annual reviews

54. Mr X says Council representatives failed to attend C’s annual reviews.
55. The SEN code says the Council’s SEN officer must be invited to the annual review meeting and given at least two weeks’ notice of the date of the meeting. However, it does not say they must attend. The school must send a report of the meeting to everyone invited within two weeks of the meeting setting out the recommendations.
56. I find no grounds to criticise the fact that SEN officers did not attend the meetings as they were not required to do so, and the Council was informed of the outcome of the meetings by the School.
57. An annual review was due to be held in October 2021. But, when the PRU closed in August 2021 and C was out of school, this should have prompted an early review of his EHCP.
58. The Council delegated the organisation and facilitation of the annual review meetings to the School. However, it is ultimately the Council’s responsibility to ensure that an annual review is held and it should have checked whether this had been done. It did not do so until June 2022. Failure to ensure that the annual review took place in August 2021 was fault.

Panel minutes

59. In response to my enquiries, the Council stated it does not hold minutes of the specialist education panel’s meetings. This is fault. We consider the Council should keep minutes of the panel’s discussions. Failure to do so leaves families, and in some instances, SEN officers, not able to understand how decisions have been reached.

Conclusion

60. I find the Council was at fault in that it:
• failed to take action in 2019 when it became aware C’s school could not meet his needs;
• delayed in consulting with possible suitable placements;
• delayed in issuing an amended EHCP following the annual review in October 2020;
• failed to issue a final EHCP;
• failed to arrange an annual review in 2021; and
• failed to arrange suitable alternative provision when C could not attend school.
61. These failings caused C a significant injustice. But for the Council’s failings, he might have been placed at a suitable specialist provision much sooner. He lost out on specialist provision while he was at the PRU for two years and, after the PRU closed, he was without education for five and a half months. Following that, he only received part-time education for a further six months.
62. The Ombudsman normally recommends an amount between £200 and £600 per month where a child misses education as a result of fault by the Council. We will normally recommend an amount at the top of the range where a child has received no education at all.
63. The Council’s failings have also caused Mr and Mrs X a significant injustice. They have suffered anxiety and uncertainty about what provision would be put in place for their grandson. In addition, the failure to issue a final EHCP has meant that they have been denied the opportunity to appeal to the SEND Tribunal.
64. Mr X has also been put to significant time and trouble in chasing up the Council and in complaining to both the Council and to us.

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Agreed action

65. The Council has agreed that, within one month of the Ombudsman’s final decision, it will:
• apologise to Mr and Mrs X for the faults I have identified;
• pay Mr X a total of £5250 to use for the benefit of C’s education (£1000 in recognition of the loss of specialist provision between June 2019 and July 2021 when C was at the PRU; £2,750 for the period between September 2021 and March 2022 when C was without any educational provision; and £1500 for the period between March and October 2022 when C did not receive full-time provision);
• pay Mr X £500 to recognise the avoidable distress and uncertainty he and his wife suffered because of the lost opportunity to have C’s education placement determined sooner and the lack of provision in the interim;
• pay Mr X £250 for the time and trouble he has spent in pursuing his complaint;
• issue a final EHCP; and
• provide C with suitable alternative education until it secures a new placement for him.
66. The Council has also agreed that, within three months of the Ombudsman’s final decision, it will:
• issue guidance to relevant staff that, where possible, the Council should consult with several schools at the same time to reduce delays in finding suitable alternative placements for pupils;
• issue a reminder to relevant staff that annual reviews must be held within 12 months of the date when the first EHCP is issued and then within 12 months of any previous review;
• remind relevant staff of the need to put in place alternative provision when a child is out of education and an alternative placement cannot be identified immediately; and
• make changes to its record-keeping to ensure that minutes are taken of panel meetings and that these are retained.

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Final decision

67. I find there was fault by the Council causing injustice.
68. I have completed my investigation because the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman