Summary: Mrs X complained the Council has failed to properly manage her son’s EHCP review and delayed in issuing an amended plan. She states this has negatively impacted on her son’s education and led to him missing school. Mrs X also complained her son has been illegally excluded from school on three occasions over the last 12 months and that the Council has failed to provide suitable alternative provision. The delays in annual review process and in issuing a final EHC plan amount to fault. As does the failure to provide suitable alternative education between November 2021 and April 2022. This fault has caused Y and Mrs X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council has failed to properly manage her son’s EHCP review and delayed in issuing an amended plan. She states this has negatively impacted on her son’s education and led to him missing school.
2. Mrs X also complained her son has been illegally excluded from school on three occasions over the last 12 months and that the Council has failed to provide suitable alternative provision.
3. In addition, Mrs X complained that during a fixed term exclusion her son’s foster carer took her son to a public place contrary to Government guidance.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• 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

Special Educational Needs

8. A child with special educational needs 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. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Annual reviews

9. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the plan. Councils must review the plan every 12 months as a minimum. They must then notify the child’s parent within four weeks of the meeting whether they intend to keep the EHC plan as it is, amend, or cease to maintain the plan.
10. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
11. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative education provision

13. 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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).
14. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened here

15. Mrs X’s son, Y has had an EHC plan for a number of years. In June 2021 Y’s school, School 1 held an annual review which recommended Y’s plan should be amended and requested a change of placement. Mrs X is unhappy that the Council did not attend this review, and that it delayed in drafting an amended plan.
16. The Council states it was not invited to the annual review meeting and that despite chasing School 1, only received the annual review paperwork on 3 August 2021. The Council then requested additional advice from health, which it received in early September 2021. The Council issued a draft EHC plan on 18 October 2021.
17. In the meantime, the Council sought a place at a different special school, School 2, and Y began attending there in September 2021. Soon after Y started at School 2, with Mrs X’s agreement, he became a looked after child and is currently in temporary foster care. Mrs X still has parental responsibility for Y.
18. Mrs X was unhappy with the amended plan and asked for a meeting to discuss the content. This meeting took place on 16 November 2021. The notes of this meeting record that Mrs X was concerned Y was not being fully supported at school which was resulting in negative behaviours at school. Y had received several fixed term exclusions (FTE) and there were concerns about his safety.
19. Y had been excluded from School 2 on 13 October, 8 November, 12 November and 13 November 2021. Mrs X was concerned Y had also been unlawfully excluded on 22 October 2021 when School 2 advised he should be kept at home for a wellbeing day, and recorded Y’s absence as illness. Mrs X was concerned School 2 could not cope with Y’s behaviours and was considering a change of placement.
20. School 2 did not attend this meeting, but on the same day, it advised the Council it considered Y’s self-destructive behaviours were too great to manage safely on the school site. It had determined Y would have a period of home tuition, followed by a slow, controlled reintegration to the school. School 2 commissioned an outreach tutor to provide three hours tuition a week.
21. School 2 then arranged an annual review which was held on 8 December 2021. The Council’s notes of this meeting record a discussion about slowly integrating Y back into school after Christmas. Y’s foster carer was concerned that unless there was support in place when Y returned to school his behaviour would not change. The foster carer was happy to continue supporting Y’s education until resources could be put in place to support Y back to school, but the wanted School 2 to set more work, of a better quality, and more hours of outreach tuition.
22. The Council issued an amended EHC plan on 16 December 2021. Mrs X did not agree with the draft and the Council issued a further amended draft plan on 22 December 2021. The Council then issued a final EHC plan, naming School 2 on 17 January 2022.
23. Mrs X states Y was too distressed and unsettled to return to school in January 2022 and remains out of school. A Council officer’s notes of a meeting on 26 January 2022 state that Y is still is not attending on site provision but is receiving tuition at home for three, sometimes two hours a week. The officer did not consider this was sufficient, especially given that this had been in place since November 2021. The notes record that there was no written plan in place to support Y’s reintegration and that Y had no clear set work from School 2, apart from when the tutor visited.
24. Y remains out of school, and Mrs X states that following a change in foster care placements there was a period when Y was not receiving any educational provision. She states tuition resumed in late April 2022 and Y now has between an hour and a half and two hours tuition each day. Whilst this is significantly more that Y previously received, Mrs X and Y still do not consider it is sufficient.
25. Mrs X states Y is extremely distress he is not in education. She states he is learning well with one to one tuition but is isolated from his peers. Mrs X is concerned it will be a long process to find a suitable school that will be able to offer Y a place and would like to ensure Y receives suitable alternative educational provision in the meantime.
26. In response to the draft decision the Council has confirmed Y moved to a children’s home at the beginning of May 2022. Notes of a review meeting on 13 May 2022 state that in addition to the outreach tuition, Y now also receives lessons from the educational team at the children’s home. It is also looking to commission additional alternative provision which would involve opportunities for social experiences with other children.
27. The Council is continuing its search for a place at a suitable residential school.

Complaints

28. On 14 October 2021 Mrs X complained about a lack of communication and delays in amending Y’s EHC plan. She was concerned there were no plans in place to support Y’s education and best interests. The Council responded on 8 November 2021 and apologised for the delay in responding. It stated the initial delay in sharing the proposed amended plan was because the team was awaiting information from other agencies. Having received this information the Council then issued a proposed amended plan. As Mrs X was concerned about the content of the plan the Council arranged a meeting to discuss these concerns.
29. Mrs X was not satisfied by this response and asked for the matter to be considered further, she also raised concerns that Y had accompanied his foster carer to work on 4 November 2021 when he was excluded from school.
30. In a further response, the Council noted Mrs X had raised her concerns at the meeting on 16 November 2021 and that actions had been agreed. In addition to an annual review and further amendments to Y’s EHC plan, the Council had also committed to liaising with School 2 about the current level of support and meeting Y’s needs. The Council acknowledged Y had gone to work with his foster carer on 4 November 2021 as they were only informed late on 3 November 2021 that Y would be excluded. The Council was satisfied Y was not out in public and that the foster family had followed government guidance.
31. Mrs X remains dissatisfied and has asked the Ombudsman to investigate her concerns. In response to my enquiries the Council acknowledges there was a slight delay in issuing the draft EHC plan following the annual review in June 2021. However the Council does not accept responsibility for all the delays in issuing a final EHC plan. It suggests this was due to the number of responses and requests to amend the proposed plan over a period of time from Y’s parents.
32. The Council states School 2 has been providing an alternative education package with a view to Y’s reintegration into the school environment, supported by the Council with an increased resource offer. It states Y has daily tuition from a tutor in his foster care placement and additional work and topic projects to complete with his foster carers. The Council asserts School 2 has put a suitable ongoing and flexible alternative education package in place for Y.
33. In addition, the Council states there have been regular monitoring meetings of the education package and Y’s accommodated status. In March 2022 the Council agreed to an independent school placement. The Council has consulted four schools and states it is awaiting their responses. Given Y’s accommodated status the Council is considering a residential school placement.
34. In relation to Y’s school exclusions, the Council states Y had a five day FTE from School 1 in July 2021 and a 1 day FTE from School 2 on 4 November 2021.

Analysis

35. Legislation and Government guidance set out a clear procedure and timeframe for carrying out an annual review of an EHC plan. The documentation provided shows the Council did not meet this timeframe. There is no evidence the Council contacted Mrs X within four weeks of the annual review in June 2021 to confirm it would amend the plan.
36. The Council accepts there was a delay in issuing a draft amended EHC plan. The Council did not issue Y’s first draft amened EHC plan until 18 October 2021, over 16 weeks after the annual review meeting. Such a significant delay in issuing the draft plan amounts to fault.
37. The Council issued Y’s final plan in January 2022. This is a further 13 weeks after it issued the first draft EHC plan. The Council asserts it was not responsible for delays in issuing the final plan as Mrs X asked for a number of amendments. However, the Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.
38. Councils have a duty to arrange suitable education for a child it knows cannot attend school. Schools may arrange off site provision in the first instance, but the duty to provide full time education remains with the Council. The Council was aware in November 2021 that School 2 felt it could not safely manage Y’s behaviours on the school site and intended to implement a period of home tuition.
39. It is unclear how or why School 2 or the Council determined that three hours tuition per week was appropriate. There is no evidence the Council considered Y’s particular needs or ability to engage with full time provision.
40. I consider the failure to properly consider and record how it was decided Y should receive only three hours of tuition each week amounts to fault. As does the failure to review this provision. The Council’s records show Y’s foster carers wanted more outreach tuition and raised concerns about the amount and quality of work being provided by School 2 for Y to complete at home. The records also show a council officer felt three hours tuition was insufficient.
41. We would expect the Council to review the provision offered regularly to ensure that it is appropriate and that it is providing a suitable education. Failure to do so amounts to fault.
42. The Council has recently significantly increased Y’s outreach tuition and since moving to the children’s home Y has also received lessons with the home’s education team. This increase in alternative provision is to be welcomed. As are the ongoing efforts to extend Y’s learning opportunities and to identify a suitable school.
43. It is of concern that the Council’s response to my enquiries is inaccurate in terms of Y’s exclusions. The Council states Y had two FTE since June 2021, yet its documentation shows there were four other FTE from School 2 in October and November 2021. The inconsistency in the information provided supports Mrs X’s view that exclusions are not being properly recorded.
44. Mrs X complains that Y went to work with his foster carer during the exclusion on 4 November 2021. She is concerned that this contravenes Government guidance which states that excluded pupils should not be a public place during school hours. Mrs X is unhappy the Council has disregarded this guidance when she has always had to comply with this requirement. The Council’s records show it investigate Mrs X’s concerns and was satisfied Y’s foster carer was not working in a public place on the day of the exclusion. It also noted the foster family were only informed late in the evening of an exclusion the following day, and that they were unable to make alternative childcare arrangements. There is no evidence of fault in the way the Council considered this matter.
45. Having identified fault, I must consider whether this had caused Mrs X and Y an injustice. The delay in amending Y’s EHC plan caused Mrs X distress and anxiety and put her to unnecessary time and trouble. It also delayed her ability to exercise her right of appeal to the SEND tribunal.
46. The Council’s failure to properly consider and review the level of alternative provision it has provided to Y since November 2021 means Y has potentially lost out on a fuller education for at least a term and a half. That is a significant injustice.
47. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
48. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
49. In determining an appropriate level we will take account of factors such as:
• The child’s SEN;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education.
50. In this instance I consider a payment in the middle of the range to be appropriate.

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Agreed action

51. The Council has agreed to:
• apologise to Mrs X and Y for its failure to provide suitable alternative education for Y since November 2021, and the delay in issuing a final EHC plan;
• pay Mrs X £2,200 to be used for Y’s educational benefit to acknowledge the impact of the loss of education on Y between November 2021 and April 2022; and
• pay Mrs X £200 to acknowledge the distress and anxiety they experienced, and the time and trouble Ms X was put to in trying to resolve this matter.
52. The Council should take this action within one month of the final decision on this complaint.
53. The Council has also agreed to provide reminders/training to ensure that staff understand the Council’s duty to offer suitable alternative educational provision when children are out of school and not receiving a full-time education
54. The Council should take this action with three months of the final decision on this complaint.

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Final decision

55. The delays in annual review process and in issuing a final EHC plan amount to fault. As does the failure to provide suitable alternative education between November 2021 and April 2022. This fault has caused Y and Mrs X an injustice.

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Investigator's decision on behalf of the Ombudsman