Summary: Mrs X complains about how the Council dealt with her son’s education provision. She says her son did not receive full time education after his school closed. We find fault with how the Council dealt with P’s education provision and for the delay in holding P’s annual review. We have made recommendations for the Council to remedy the injustice caused.

The complaint

1. Mrs X complains about how the Council dealt with her son’s education provision. She says her son, who has an EHC plan, did not receive full time education after his school closed. She says he is still not in full time education and the Council has delayed in issuing the final EHC plan.

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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)

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How I considered this complaint

4. I spoke with Mrs X and considered the information she provided.
5. I made enquiries with the Council and considered the information it provided.
6. I sent a draft decision to Mrs X and the Council and considered their comments.

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What I found

Education, Health and Care Plans

7. A child with special educational needs and disabilities (SEND) 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.
8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for producing and reviewing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEN Regulations 2014.
9. Paragraph 1.976 of the Code of Practice notes the first review of an EHC plan must be held within 12 months of the date when the EHC plan was issued. The following reviews are then within 12 months of any previous review.

Alternative educational provision

10. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 peri-od receive suitable education unless arrangements are made for them”.
11. 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)
12. The education provided by the Council must be full-time unless the Council decides 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)
13. While there is no statutory requirement for when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion, local authorities should ensure it places such pupils as quickly as possible. (Alternative provision: statutory guidance, paragraph 2)
14. The courts have ruled that what is ‘suitable education’ is a matter for the Council to decide. Whether an alternative placement is ‘suitable’ is not based on the parent or child’s view but upon objective consideration of whether the education is reasonably possible or reasonably practicable for the child to access.

What happened

15. Mrs X’s son, P, has an EHC plan. P’s EHC plan was last reviewed in November 2020.
16. At the end of September 2021, the school named in P’s EHC plan closed. Mrs X asked the Council for a place at School A. The Council sent a consultation to School A to see if it could meet P’s needs as outlined in his EHC plan.
17. School A responded at the beginning of October 2021. The school confirmed it would be able to meet P’s needs. In mid-October 2021, Mrs X told the Council her preference was now Provider B. Provider B was not a school, but an alternative education provider
18. The Council told Mrs X it had to be confident School A and Provider B could meet P’s needs and provisions outlined in his EHC plan. The Council advised it would complete checks on the school and provider to review this.
19. In November 2021, the Council told Mrs X it was looking into a bespoke package where P could be placed on roll at School A. School A would then commission Provider B to deliver three days of education.
20. P started at Provider B in January 2022. P attended the provision three days a week.
21. In February 2022, the Council asked School A when P would start at the school.
22. In March 2022, P started at School A. P attended for one day but found the school challenging for his sensory needs. Mrs X told the Council at the end of March 2022 that P refused to attend School A. Mrs X asked the Council to explore options of how P could continue to attend Provider B without having to attend School A as he was settled and doing well with Provider B.
23. In May 2022, the Council consulted with another provider to discuss a package for P. The provider responded in June 2022 to confirm it could offer the same service as Provider B and so would not commission them.

Analysis

Alternative provision

24. Section 19 of the Education Act 1996 sets out the Council’s duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
25. The Council was aware in September 2021 P could not attend his school as it had closed. Further, the Council was aware P would not receive suitable education unless arrangements was made for him.
26. School A told the Council it could meet P’s needs in October 2021. However, we acknowledge the Council needed some time to review whether School A and Provider B was suitable to meet P’s needs.
27. We note there is no statutory timeframe for when suitable full-time education should be provided. However, statutory guidance notes councils should ensure pupils are placed in alternative provision as quickly as possible. Therefore, we consider one month would have been a reasonable amount of time for the Council to arrange the alternative provision at School A and Provider B.
28. P did not start at Provider B until January 2022. This meant P was without any educational provision for around two months. This is fault.
29. I consider the fault identified has caused an injustice to P. This is because he did not receive any educational placement for two months and this is likely to have impacted on his educational progress and wellbeing.
30. Since January 2022, P has only attended Provider B for three days a week. While he is on roll at School A, P only attended once before refusing to go again. Mrs X told the Council the placement was not suitable and asked it to consider other options in March 2022.
31. If the Council considered School A to be suitable, it should have made its position clear to Mrs X and it should have finalised the EHC plan without delay to allow Mrs X to appeal the educational placement. However, there is no evidence the Council turned its mind to whether it considered School A to be suitable for P. This is fault.
32. It is reasonable to say the Council would have been aware P was not receiving full time education from mid-February 2022 as:
• The Council contacted School A in February 2022 to ask when P would be started. It would not have done this if it thought P was attending the school.
• Mrs X told the Council P was not attending School A at the end of March 2022.
33. Despite this, records showed the Council only consulted with one other provider in May 2022. This suggests the Council allowed the situation to drift, rather than take control to provide P with suitable full-time education as quickly as possible. This is fault.
34. As a result of the fault identified, P did not receive full time education for at least six months. This in turn would have impacted on P’s educational progress. I also consider this would have caused Mrs X some distress.

Annual review

35. The annual review is significantly delayed. The Council should have reviewed P’s EHC plan within 12 months of the last annual review, which was in November 2020. Therefore, the Council should have completed an annual review by November 2021. To date, the annual review has still not happened. This is a delay of at least eight months, and is fault.
36. The delay means the Council has not updated P’s EHC plan since his school closed. This in turn has prevented Mrs X from accessing her right of appeal as she cannot appeal P’s educational placement until the Council issues the final amended EHC plan. This will have caused her distress and frustration.

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Agreed action

37. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Mrs X for the faults identified and for the injustice caused.
• Pay Mrs X £600 per month for the two months P was without any educational provision. This is a total of £1200.
• Pay Mrs X £200 per month for the six months P did not receive full time education. This is a total of £1200.
• Pay Mrs X £300 to recognise the distress and frustration caused to Mrs X in being unable to access her appeal rights.
• Issue a reminder to relevant staff that annual reviews must be held within 12 months of the date when the first EHC plan is issued, and then within 12 months of any previous review.
38. The Council should complete the above within four weeks of the final decision.

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Final decision

39. I find fault with how the Council dealt with P’s education provision and for the delay in holding P’s annual review. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman