Summary: Mrs X complained about the support the Council provided for her son, Y’s, special educational and social care needs since 2019. The Council failed to ensure an annual review was carried out within the legal timescales, but this did not cause an injustice to Mrs X or Y. There was no fault in how the Council considered whether it needed to arrange alternative provision for Y. The Council should review its procedures to prevent similar fault in future.

The complaint

1. Mrs X complained about the support the Council provided for her son, Y’s, special educational and social care needs since 2019. She said the Council:
1. failed to provide suitable education for her son between January and July 2019;
2. failed to arrange suitable alternative education when her son was unable to attend school between September 2020 and July 2021; and
3. caused an unnecessary adjournment of her appeal to the SEND Tribunal.
2. As a result, she said her son went without a suitable education, fell behind with his learning and suffered significant distress. This also caused Mrs X significant distress and limited her ability to work.
3. She wanted the Council to accept it had failed, apologise and compensate both her and her son for the effects on them.

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What I have investigated

4. I have investigated part b) of Mrs X’s complaint.
5. The final section of this decision explains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)
10. 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.
11. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
12. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
13. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider a complaint. (Local Government Act 1974, section 24A(6))
14. 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)

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How I considered this complaint

15. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education Health and Care plans

17. 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. 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.
18. Councils must review EHC plans at least every 12 months. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
19. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
20. 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)
21. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
22. 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.
23. Councils must review and amend a child’s EHC plan in sufficient time before a child or young person moves between key phases of education (such as the move from primary to secondary school), to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed, at the latest, by 15 February in the calendar year of the transfer into or between schools.

Alternative education provision

24. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
25. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
26. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
27. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
28. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Part-time timetables

29. The Department for Education (DfE) non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
30. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school…out of mind?, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

31. Mrs X’s son, Y, has special educational needs related to his diagnosis of Autism, demand avoidance and severe anxiety.
32. The Council issued Y’s first Education Health and Care (EHC) plan in February 2019. After Mrs X appealed to the SEND Tribunal, the Council issued an amended Education Health and Care plan for Y in September 2019 naming Mrs X’s requested school, School B, a state-funded special primary school. Y started at School B in September 2019.
33. In early March 2020, School B held the first annual review of Y’s EHC plan. However, the report from this meeting was not sent to the Council until the end of April.
34. The Council decided to amend Y’s EHC plan in early May 2020 and sent Mrs X a notice of its decision. It sent Mrs X a draft amended plan in mid-June and then issued the final plan in early September 2020. Again, the plan named School B as Y’s educational placement.
35. Mrs X appealed Y’s September 2020 EHC plan to the SEND Tribunal. She asked the Tribunal to change how the plan described Y’s needs and the support he needed. Mrs X told both the Council and Tribunal that she was not asking for a different primary school placement but wanted the Tribunal to decide what secondary school Y should attend from September 2021.
36. According to Mrs X’s evidence to the Tribunal, Y began starting to refuse to attend some lessons at School B around February 2020. During the national lockdowns in March 2020, Y did not want to engage with any of the work School B provided. Instead, Mrs X said she had to step in to provide learning she felt was appropriate for Y.
37. In August 2020, Mrs X asked for a part-time timetable for Y for the start of his final year of primary school. School B agreed this would be in Y’s best interests and it would agree with Mrs X and Y how often Y would be expected to attend.
38. Y returned to School B on a part-time basis from September 2020. Initially, this was for mornings only and, according to Mrs X’s evidence to the Tribunal, this made things more manageable for Y. Mrs X reported that, in November 2020, Y was significantly less stressed due to the reduced timetable and with access to a quieter, safe space. At that time Y managed to include an additional afternoon once a week.
39. Y continued with the part-time timetable until his transfer to Mrs X’s preferred secondary school in September 2021.

My findings

Reviews of Y’s EHC plan

40. Councils must review EHC plans within 12 months of the plan being made, or the last review. Y’s first EHC plan was issued in February 2019, so the Council should have completed the review, by making its decision about whether to maintain, amend or end the plan by mid-February 2020. However, it did not make this decision until May 2020, around 10 weeks late.
41. The Council says the delays were due to delays in School B arranging the review. We cannot investigate what happens in schools, so I have not investigated how those delays happened.
42. However, the Council was ultimately responsible for ensuring that the review takes place and that it can make its decision within the legal timescales. The Council should have realised, in January 2020, that it had not received the review meeting report from School B in enough time for it to complete the review by mid-February. There is no evidence the Council ensured School B completed the review when it should have done or that it took any action when the report was overdue. I am satisfied that this lack of oversight of the review process was fault.
43. Although there were delays in completing the 2020 annual review, I am satisfied these delays did not cause an injustice to Mrs X or Y. In her appeal, Mrs X asked the Tribunal to consider Y’s school placement from September 2021, not his continued attendance at School B. Had Mrs X been able to appeal 10 weeks earlier, I think it is unlikely any significant changes would have been made to Y’s EHC provision before he transferred to secondary school.
44. Councils must also ensure that a child’s EHC plan is reviewed and amended in preparation for transfer to secondary school by March of the transfer year. Y was due to attend secondary school from September 2021, so the Council should have reviewed and amended Y’s EHC plan by March 2021. To allow the necessary time for Mrs X to comment on a draft plan, the Council would have needed to start the review process in late 2020.
45. The Council said that it did not review Y’s EHC plan in preparation for secondary school because there was an ongoing appeal to the SEND Tribunal. Councils should normally still arrange a review to prepare for school transitions, even if there is an outstanding appeal, since these reviews need to consider specific issues which may not have been considered in previous reviews. However, Mrs X asked the SEND Tribunal to specifically consider Y’s secondary school placement and the Tribunal did consider this as part of the appeal. In the circumstances, I am satisfied with the Council’s explanation about why it did not arrange a transition review for Y in 2021.

Alternative provision

46. The evidence shows the Council was first aware of Y being on a reduced timetable around August 2020, although the possibility of this was mentioned at a meeting with Y’s social worker a few months earlier.
47. The evidence from the Council and the Tribunal proceedings suggests that Mrs X asked if Y could return to School B on a reduced timetable from September 2020 and that the timetable be negotiated with Y. School B agreed to this and notified the Council of this reduced timetable. The reduced timetable was also discussed at further meetings with Y’s social worker throughout the following year.
48. While the Council was aware that Y was not attending school full-time, I am also satisfied it understood this was at the request of Mrs X and was based on a shared view of the amount of education Y was capable of taking part in. The records of meetings show the Council kept Y’s education under review over his final year of primary school and took into account the views of Mrs X, Y’s school and health care professionals during that time.
49. It was for the Council to decide whether, in its view, a part-time education was in Y’s best interests and what weight to give to the evidence it considered. I am satisfied the records show the Council considered the relevant evidence when reaching this decision and there was no fault in how it decided that full-time education would not be in Y’s best interests.
50. The evidence also shows that by the time of the Tribunal hearing in June 2021 Y was still attending School B on a part-time timetable and was not willing to increase his attendance. This suggests that Y was not ready to take part in full-time education by the end of his final year in primary school, so it is unlikely that he would have been able to take part in full-time education before this. Although Mrs X says this was because the Council did not offer alternatives, as explained above, I have found no fault with how the Council decided a part-time education was in Y’s best interests at the time.
51. Since the Council had decided that Y could only manage a part-time education, I am satisfied with the Council’s explanation that, in its view, Y was receiving a suitable education in the circumstances and so it did not need to arrange alternative education for him.

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Agreed action

52. Within three months of my final decision, the Council will review how it monitors annual review meetings it has asked schools to conduct on its behalf. It should ensure it takes appropriate action where annual review meetings have not been carried out in time for the Council to make its decision within the legal timescales.

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Final decision

53. I have completed my investigation. The Council failed to ensure an annual review was carried out within the legal timescales, but this did not cause an injustice to Mrs X or Y. There was no fault in how the Council considered whether it needed to arrange alternative provision for Y. The Council should review its procedures to prevent similar fault in future.

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Parts of the complaint that I did not investigate

54. I have not investigated how the Council arranged education for Y between January and July 2019. These events happened more than 12 months before Mrs X complained to the Ombudsman. Therefore, we could only consider those events if we decided there were good reasons. I am satisfied that Mrs X could have complained about events in 2019 sooner and there are no good reasons to consider her complaint about this now.
55. I have also not considered the Council’s conduct during the tribunal appeal in 2020. The SEND Tribunal has extensive case management powers and the ability to impose sanctions on parties which have unnecessarily delayed proceedings. I consider that it would have been appropriate for Mrs X to raise any delays with the Tribunal and therefore, I will not consider this part of her complaint.

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Investigator's decision on behalf of the Ombudsman