Summary: Miss X complained the Council delayed in re-assessing her son, Y’s, special educational needs following an annual review of his Education Health and Care plan in June 2021. There were delays in deciding to re-assess, in arranging alternative provision whilst Y was out of school, and in consulting with alternative schools. The Council will apologise, make changes to its processes, and make a payment to remedy the impact of the additional time Y was without education due to the delays.

The complaint

1. Miss X complained about the Council’s delay in reassessing her son, Y’s, special educational (SEN) needs, following the annual review of his Education, Health and Care (EHC) plan in June 2021. She said when she complained about this, the manager was rude and accused her of lying about what was agreed at the review.
2. She said this caused a delay in identifying a suitable alternative school for Y and he missed out on full time education between June and December 2021, as well as support for his SEN. Being out of school affected Y’s mental health and impacted on both parents’ working arrangements. Miss X said she was put to the time and trouble of having to keep chasing the Council to resolve the situation.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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.
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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)
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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How I considered this complaint

10. I considered:
• The information Miss X provided and spoke to her about her complaint;
• The information the Council provided in response to my enquiries;
• Relevant law and guidance, as set out below; and
• Our guidance on remedies, published on our website.
11. Miss X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

12. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. The council is responsible for making sure that arrangements specified in the EHC plan are put in place.

The Code of Practice

14. The Code says councils should review the plan at least annually. The review meeting will usually be led by the school, which should send the council a report of the meeting within two weeks.
15. 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. It must tell the child’s parents and school its decision. If the plan needs amending, the council should start the amendment process without delay and should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.
16. The Code says the review process enables changes to be made to EHC plans so they remain relevant to the needs of the child. However, where the child’s needs change significantly, the council may need to carry out a re-assessment of their SEN. The process for a re-assessment is the same as for the first assessment.

Alternative education

17. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of school age who are absent from school because of illness, exclusion or otherwise.
18. This Council’s policy says:
• The child’s school should make a referral to its Medical Needs and Hospital Education Service (MNHES) where it is clear a child cannot attend school for health reasons for more than 15 days;
• Where the referral is due to severe anxiety about attending school, the MNHES support will be short-term with a focus on reintegrating the child into school; and
• Support through MNHES should be equivalent to the education the child would have received in school but may be for fewer hours if it is delivered on a one-to-one basis and is therefore more concentrated.

What happened

19. Y lives with his mother, Miss X. His father, Mr Z, lives separately. Y has had an EHC plan since December 2019. He moved to school 1, a mainstream secondary school in September 2019. In April 2020 Y was diagnosed with autism.
20. In early 2021 Y was out of school due to the national lockdown imposed in response to the COVID-19 pandemic. He returned to school in April 2021 but Miss X reports he was no longer able to cope there. Miss X said school 1 sought advice from autism specialists but Y’s behaviours did not improve. She said school 1 had to remove all social time because Y was not able to cope with unstructured time, for example, at breaks and lunchtimes.
21. An emergency review of Y’s EHC plan was held in June 2021. A Council officer from the SEND team, officer 1, and specialist Autism Spectrum Disorder (ASD) teacher, who had been supporting school 1 attended the review meeting.
22. I have seen the report of the annual review that school 1 sent to the Council, which shows:
• Across all subjects, Y had not made expected progress;
• Due to his challenging behaviour Y was not attending all lessons;
• The actions the school had taken to address Y difficulties, which had not been successful;
• School 1 concluded it could not meet Y’s needs and that he needed specialist provision.
23. The annual report also set out the additional provision school 1 considered Y needed, including full-time specialist support in all lessons, a bespoke curriculum, small teaching groups, and therapeutic support. There was some discussion about specialist provision and Miss X indicated her preferred school was school 2. The report confirmed officer 1 had agreed to:
• Refer the case to the Council’s panel for discussion the follow week;
• Provide a list of alternative provisions in the area to Miss X;
• Consult with alternative schools straightaway; and
• Issue an amended EHC plan within two weeks.
24. Miss X said Y stopped attending school 1 after the review meeting. School 1 provided some online learning, including a one hour check-in session each morning. In addition, school 1 sent home some work sheets for Y to complete. Miss X says these were completed and returned but school 1 did not provide feedback on them. She explained Y was spending the day at Mr Z’s home whilst she was working but this still meant Y spent long periods on his own when Mr Z needed to work outside the home.
25. A draft EHC plan was sent to Miss X in June 2021. At this stage, the Council had not included the key additional support discussion at the annual review. It said this could not be included without supporting documentation from a specialist ASD teacher. Miss X arranged for this to be sent. She sent several chaser emails, which were not responded to. Officer 1 then emailed to say he was waiting for the specialist ASD teacher’s letter, although this had been sent the previous week. Miss X arranged for a further copy to be sent.
26. The Council issued a further draft amended EHC plan. This still did not include the additional support school 1 said was needed. When Miss X challenged this, the Council said it would need further reassessment of Y’s SEN by a specialist ASD teacher or an educational psychologist (EP) before the additional support could be included in the EHC plan.
27. Miss X complained. In its complaint response on 2 August 2021 the Council:
• Upheld Miss X’s complaint about poor communication. It accepted communication between officer 1, the parents and the school should have been better. It also accepted officer 1 should have addressed whether Y’s SEN needed reassessing at the point of the annual review to allow time for assessments to take place during term time;
• Partially upheld the complaint that the Council did not honour changes Miss X requested to section F of Y’s EHC plan. It said the record of the annual review did not record professional advice that supported the changes in SEN support for Y that the school proposed;
• Apologised for the failings identified and said it would provide training for the SEN officer in the annual review process, with emphasis on when it is necessary to propose a reassessment of SEN; and
• Said that, when it reopened after the summer break, school 1 would commission an Educational Psychologist (EP) to assess if Y’s needs had changed and provide updated advice for amending the EHC plan.
28. Miss X was unhappy with the response and asked the Council to consider the complaint at stage 2 of its complaints process.
29. As she heard nothing further, Miss X contacted the Council again in mid August 2021. She says she spoke to officer 2, who was officer 1’s line manager. She said officer 2 was rude and accused her of lying about what was agreed at the review meeting. The Council provided its written record of the call, which says Miss X was unhappy with communications and felt the advice given at the annual review was not accurate, and that the officer clarified what the advice should have been.
30. Officer 2 later said officer 1 was not properly trained to give advice and should have recommended an EP observe Y in the classroom. Miss X asked for a change of caseworker but says this was refused because officer 1 needed to learn from their mistakes.
31. Around this time, school 1’s special educational needs coordinator (SENCO) again confirmed to the Council that it could not meet Y's needs. School 1 said:
• It had contacted the Council multiple times for support due to not being able to meet Y’s needs;
• Miss X had decided at the annual review meeting that Y could not return to school 1 due to the risk assessment (to keep him and others safe) being broken daily;
• It stood by its assessment that it could not meet Y’s needs, which was supported by the annual review paperwork it had submitted.
32. On 1 September, the Council declined to consider the complaint at stage 2 because it said this would not change the outcome. It said there had been no request for a change of placement at the annual review. Whilst it accepted Miss X was unhappy that Y had to return to school 1, it was better for the EP assessment to be carried out in a school environment. It repeated that school 1 would commission the EP assessment when it reopened in September.
33. On 9 September 2021, Miss X emailed the Council again. She said she was concerned about Y’s mental health. She also said she was stressed as she was working full-time and had to keep chasing the Council. Miss X said the specialist ASD teacher had sent an email to the Child and Adolescent Mental Health Services (CAMHS) requesting urgent support for Y.
34. On 13 September, the Council asked school 1 to plan for Y’s reintegration as it could not promise a change of placement would be agreed or would be immediate. It offered to meet with the school to discuss the situation. I understand there was a discussion the same day, although I have not seen a record of it.
35. Also on 13 September Miss X says the SENCO told her school 1 had been instructed by the Council to report Y’s non-attendance and that this could lead to the Council taking court action against her. Miss X refused to send Y back to school 1. In response to my enquiries, the Council said it expects parents to continue to send their child to the school named in their EHC plan until a new placement is agreed. Since Miss X had withdrawn Y from school 1, it asked school 1 to consider its process and policies on non-attendance.
36. The Council asked the specialist ASD teacher for a further letter to support the request for additional support in the EHC plan, which they sent in mid September. Based on this, it issued a draft amended EHC plan on 23 September, which included the additional support school 1 requested at the annual review. It also consulted several schools, including school 2, which was Miss X’s preferred school.
37. On 27 September, the family GP wrote to the Council. The GP said:
• Miss X had explained that Y’s mental health had deteriorated, and he had been unable to attend school since June 2021;
• Miss X had also explained that, due to his autism, Y struggled with mainstream school, and that she feared a return to the classroom would be overwhelming for him;
• It had been suggested by the SENCO at school 1 that Y might benefit from involving the Medical Needs Team to support Y with home schooling, and the GP would be “supportive of this request”.
38. In response to my enquiries, the Council noted the GP did not provide a diagnosis of anxiety or say Y should not be attending school due to his anxiety. However, it did refer the case to its Medical Needs and Hospital Education (MNHE) team.
39. In mid October 2021 its panel agreed to provide five hours’ per week tuition, which was spread across two days. Miss X said she had asked for education every day to help Y to get back into a school routine, but the Council told her five hours was sufficient because Y had been out of school for some time. The provision began in November 2021.
40. In response to my enquiries about the amount of provision, the Council said:
• Alternative education does not need to be for the same amount of time as a school day if it is more concentrated, such as one-to-one education;
• The number of hours would be reviewed every half term and adjusted as needed;
• Miss X had said she was happy with the education MNHE provided;
• The provision for Y was in line with its policy and relevant statutory guidance, and he had moved to a new school before a review was due.
41. In response to my further enquiries, the Council said five hours was its standard offer, which is reviewed every six weeks. Miss X said it was not correct to say she was happy with the five hours offered but she was told this was the standard offer.
42. In response to my enquiries about the apparent delay in arranging provision, the Council said:
• It was aware Y’s attendance was around 65% from the annual review report but understood this was due to the pandemic, including school closures, and some exclusions;
• Miss X reported in mid July that Y had been out of school since June 2021;
• Its expectation was that Y would continue to attend school 1, which would arrange for an EP to observe him in the classroom in September 2021;
• It did not receive any medical evidence to support Y’s non-attendance until late September, at which point it referred the case to its MNHE team.
43. There was a further stage 1 complaint response in October 2021, in which the Council:
• Accepted that it did not issue the final amended EHC plan in a timely manner following the annual review in June 2021;
• Did not accept that requesting a further report from the specialist ASD teacher added to that delay. It said school 1 should have provided documents to support its recommendations, including reports from the specialist ASD teacher;
• Accepted Miss X had to send some documents more than once;
• Acknowledged Miss X was unhappy with officer 2’s response to her concerns but said it was right for them to point out the school’s failure to follow a graduated identify-plan-do-review process involving EP input before making requests to amend Y’s EHC plan; and
• Explained it would normally expect a child to remain in school where the graduated process had not been exhausted, and that it had asked school 1 to consider its policies and processes to manage Y’s absence.
44. The records show there was a delay in getting responses from the schools consulted with and a delay in officer 1 chasing for schools for responses. In addition, Miss X said the Council did not inform her of the outcome of the consultations and she had to contact school 2 herself to find out whether it would offer a place.
45. The Council agreed to name school 2, an independent special school, and issued a final amended EHC plan on 23 November 2021 to reflect that. Y started at school 2 in mid December 2021.

My findings

46. It is clear from school 1’s report of the emergency annual review meeting that:
• It had taken action to address Y’s difficulties, but these were not successful;
• It considered it could not meet Y’s needs and that a specialist provision was needed; and
• Officer 1 agreed to amend Y’s EHC plan and consult with alternative schools.
47. In light of this information, the Council should have considered whether it needed to carry out a re-assessment of Y’s SEN, given that his needs had increased significantly since he started at school 1 in September 2019. It did not do so, and that was fault.
48. Even if it had decided a full re-assessment was not needed, it should have been more proactive in obtaining the professional input it needed to decide what further support needed including in Y’s EHC plan. It took from June to mid September 2021 to obtain a letter from the specialist ASD teacher that supported the provision school 1 proposed in the annual review meeting. If it had been clear about what it wanted, it is likely this could have been provided by the end of June. The failure to proactively seek the necessary professional reports was fault.
49. But for that fault, it would have been in a position to consult with alternative schools before the end of term. If it had done so it is likely Y would have been able to start at school 2 in September 2021. The schools did not respond quickly to the consultation and the Council accepted it delayed in following up, which was further fault. The delays meant Y did not start at school 2 until December 2021, almost the end of the Autumn term.
50. There are cases where it is reasonable for a child to continue to attend the school named in their EHC plan whilst an alternative school is identified. However, I am concerned that in this case the Council was aware by July 2021 that Y was not attending due to anxiety linked to his autism and that school 1 had said it could not meet Y’s needs. I have seen no evidence the Council attempted to arrange additional support to enable Y to return to school 1 whilst an alternative school was identified.
51. It should therefore have considered earlier whether to provide alternative education, including seeking medical evidence about the reasons for Y’s absence to inform its decision-making. The failure to do so was fault. If it had considered this earlier, it is likely it would have arranged alternative provision from September (if it had not identified an alternative school by then) rather than November 2021.
52. The Council told me its standard alternative education offer for children out of school on ill health grounds is five hours per week on the grounds the Department for Education guidance says if children receive one-to-one tuition the hours provided can be fewer as the provision is more concentrated. Whilst recognising that, and also that Y had been out of school for some time by that stage, which may have mean this was the maximum he could manage to access, I do not consider it is appropriate for the Council to have a blanket policy on the hours provided. Rather it should consider what each individual child needs and can access. I would expect the Council to provide either full time alternative education or to have a record to explain its reasons for deciding that the part-time education proposed was a suitable education for Y. The failure to do either of those things was fault.
53. There is some uncertainty about whether Y would have received more than five hours had the Council properly considered this. In addition, I note the Council would have reviewed this after six weeks, if an alternative placement had not been identified by then. Therefore, this did not cause a significant injustice in this case.
54. The Council’s record of the telephone call between officer 2 and Miss X in August 2021 is too short for me to reach any conclusions about what was or was not said. There is no reference to Miss X mis-reporting the advice given by officer 1 and nothing to indicate whether or not officer 2 was rude. Given the lack of evidence, I make no finding about whether officer 2 was rude. Since this was a conversation with a line manager in response to a service user saying they were unhappy, the Council should have made a more detailed record of the discussion. The failure to do so was fault and meant I was unable to reach conclusions about this aspect of the complaint.
55. The Council upheld Miss X’s complaint about poor communication, which was further fault. This caused Miss X additional time and trouble pursuing the Council to resolve matters.

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Agreed action

56. The Council will, within one month of the date of the final decision:
• apologise to Miss X for the delay in deciding whether to carry out a re-assessment of Y’s SEN, a delay in arranging alternative education for him, a delay in chasing schools for a consultation response, and a failure to keep a proper record of the conversation with officer 2 in August 2021;
• pay Miss X £200 for her time and trouble pursuing it to resolve the difficulties;
• pay Miss X, for the benefit of Y, a further £900 to remedy the additional time he was out of school and without an alternative education or SEN support as a result of the failings identified. This is calculated on the basis of £300 per month for three months and is in line with our guidance on remedies.
57. The Council will, within three months of the date of the final decision, review its processes to ensure that:
• it considers each child’s individual circumstances before deciding how many hours of alternative education is appropriate and makes a record of its reasons for deciding that a part-time provision amounts to a suitable education for the child; and
• it keeps a detailed record of conversations where a line manager is responding to concerns raised by service users about the service provided by officers reporting to them.

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Final decision

58. I have completed my investigation. I found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman