Summary: Mrs X complained the Council failed to provide provision in her son B’s Education, Health and Care Plan and failed to adhere to statutory time limits during the annual review process. We find the Council was at fault for failing to secure alternative provision and for failing to meet statutory time limits in the annual review process. The Council has agreed to remedy the injustice caused.

The complaint

1. Mrs X complains the Council failed to ensure her child, who I will call B, received the provision named in his Education, Health, and Care Plan (EHCP) when they moved to the Council’s area in September 2021. Specifically, Mrs X says the Council failed to:

• Adhere to statutory time limits when completing his annual review.
• Finalise B’s draft amended EHCP within statutory time limits.
• Failed to provide B with alternative provision when he was absent from school.
• Properly consider her personal budget request.
• Give her correct information and case law when assessing and dealing with her requests and concerns.

2. Mrs X says that as a result, B has missed necessary provision which has affected and delayed his education and caused him distress. Mrs X also says this has caused her distress, frustration and put her to financial expense and time and trouble in making the complaint.

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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. 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)
5. 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)
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 the information Mrs X sent in support of her complaint and spoke with her on the telephone. I have also made enquiries of the Council, and I have read its response.
8. Mrs X and the Council have commented on a draft decision. I have considered all the responses received before making this final decision.

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What I found

Special Education Need and Disability Code of Practice (SEND): 0-25 Years statutory guidance for organisations.

9. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements for meeting them.
10. Statutory Guidance ‘special education needs and disability code of practice:0-25 years (The Code) sets out the process for carrying out EHCP assessments and producing EHCP’s. The guidance is based on the Children and Families Act 2014 and the SEN regulations 2014. Namely:

• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner.” Steps must be completed as soon as practicable.

• the entire process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

11. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
12. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
13. The Council is responsible for securing the specified special educational provision for the child. This means making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
14. These duties are non-delegable. Other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.
15. Section 9.194 says when a local authority proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and a notice providing details of the proposed amendments. It should inform the child’s parent they may ask for a meeting with the Council to discuss the proposed changes.
16. Section 9.176 says the local authority must decide whether it proposes to keep the EHCP as it is or amend the plan and tell the child’s parent within 4 weeks of the review meeting. If the plan needs to be amended, the local authority should start the process of amendment without delay.
17. When a council issues a decision to amend notification to a parent after an EHCP annual review meeting, it must also send the proposed amendments. The final plan must then be issued within 8 weeks. So, the timescale from the annual review meeting to the final EHCP should take no longer than 12 weeks.
18. Section 10.32 of the SEND code of practice says where an EHCP gives the name of a school where the child will be educated, and the parents decide to educate at home, the Council is under no duty to make special educational provision set out in the plan. This is provided it is satisfied the arrangements made by the parents are suitable.
19. The Code provides specific guidance at paragraphs 9.157 to 9.162 about what happens when a child with an EHCP moves between local authority areas. The guidance envisages that the council area a child moves into has up to 15 working days to secure the education provision identified in the existing EHCP. The new Council may on transfer bring forward the review an existing EHCP or undertake an assessment to complete a new EHCP. The Council must tell the child’s parent, within six weeks of the date of the transfer when it will review the plan and whether it proposes to make an EHCP needs assessment.

Alternative Provision

20. 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.
21. 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.

What Happened

22. I have set out a summary of the key events below. It is not meant to show everything that happened.
23. B has a diagnosis of attention deficit hyperactivity disorder (ADHD), auditory processing difficulties and has a moderate development language disorder. B has an EHCP which was finalised in July 2022.
24. B attended an independent specialist day school in the Council’s area, however, throughout much of 2021, B lived in a different Council area. B also accessed support from a neurodivergent charity.
25. Mrs X first made enquiries with the Council about moving to the local area in late August 2021. The Council’s notes show it received Mrs X’s enquiry. Mrs X said she also contacted the local authority where she previously lived and informed it, she was moving to a new Council area.
26. Around a week later, the Council contacted the local authority where B previously lived and requested his SEND file.
27. Mrs X and B completed their move to the Council’s area on 30 September 2021.
28. The Council’s notes show, Mrs X’s previous local authority said it sent B’s SEND file on 4 October 2021. However, the Council said it had not received this and chased receipt of the SEND file a few days later.
29. Mrs X said B had to stop attending school in October 2021. Mrs X said B was struggling with a neurodivergent burnout and needed rest and support in his home environment. However, B continued to be registered on the school roll.
30. Mrs X’s previous Council held a meeting with her in November 2021. Mrs X believed this was B’s annual review. At this meeting Mrs X said she discussed B’s absence from school, requested education other than at a school setting (EOTAS), enquired about a personal budget and discussed B’s transfer to the new Council area. Mrs X said she was told in the meeting that B’s SEND file had been transferred to the new Council. Mrs X also said it was only after this meeting that she began speaking with her new Council.
31. The school emailed the Council in November 2021. It told the Council it was unable to meet B’s needs and said B had stopped attending. It explained while B was still welcome at the school, Mrs X had informed it B was suffering from trauma and wanted it to consider EOTAS.
32. The Council’s notes show Mrs X’s previous local authority said this meeting was not an annual review. The Council’s notes from November 2021 also show that it was aware of Mrs X’s request for EOTAS.
33. B’s school held his annual review in December 2021. Mrs X attended, along with the SEND team from the new Council area. Mrs X explained B was not attending school. This is detailed in the annual review notes. Mrs X said B had suffered a neurodivergent burn out and she did not believe the school could meet his provision. The school took a different view and said that it believed it could provide all of B’s provision as specified in his EHCP. However, it recognised B had experienced trauma and that he was finding attending the specialist school difficult. It was decided that B’s EHCP would be amended.
34. B’s school contacted the Council in early January 2022. It said B was still on the school roll, despite not attending since mid-September 2021. It said Mrs X did not feel the school was offering the right provision. It acknowledged that until B was removed from its roll, it remained responsible for providing B’s educational provision. It asked the Council to consider B’s absence from school and noted Mrs X’s wish for him to receive EOTAS.
35. The Council’s notes show it was in regular contact with B’s school throughout January 2022. Its notes show it told the school that B’s placement (with the school) had been agreed at panel. It also acknowledged that no alternative provision had been identified to support B’s EOTAS package.
36. The Council sent Mrs X a holding letter, explaining its intention to amend B’s EHCP. It also provided her with a copy of B’s previous EHCP on 20 January 2022.
37. The Council further amended B’s EHCP and sent this to Mrs X on 3 February 2022.
38. In its considerations when amending the plan, the Council told Mrs X it was looking at mainstream schools. Mrs X said this caused her distress and questioned how the Council could consider this when B had struggled with and could not attend a specialist school setting.
39. Mrs X complained to the Council in March 2022. She specifically noted:

• B had not attended school since October 2021 but continued to be on the school roll.
• She did not understand why the Council was considering a mainstream school setting following B’s annual review. The family disagreed with this.
• The Council’s considerations following B’s annual review had caused delay, depriving B of a suitable education.
• The Council continued to fund B’s school, even when Mrs X was providing his all his provision.
• The school had provided no provision apart from a safeguarding visit each week. Mrs X said this was distressing for B.
• She needed financial help to deliver B’s provision and requested an urgent discussion about consideration of a personal budget.
• No agreed actions had been completed following the November 2021 meeting with B’s previous local authority.
• The amendments to B’s EHCP had still not been finalised.
• The transition between Council’s had not been handled within the timescales.
• She had to chase the Council to complete the annual review.
• It had failed to complete the annual review and EHCP within the statutory time scales.
• It had failed to pay for B’s attendance to his neurodivergent charity.

40. The Council responded to Mrs X’s complaint in April 2022. In its Stage One response it accepted it had failed to progress B’s annual review in accordance with statutory timescales, due to staff absence. It acknowledged Mrs X could not appeal to the SEND tribunal until it issued her with a final EHCP. It also said:

• B was still on the school roll at a specialist school, despite not attending since October 2022.
• It recognised Ms X’s preference was to provide B with education other than at a school.
• It was unclear about the nature and content of the meeting held in November 2021 with Mrs X’s previous Council.
• It recognised Mrs X believed the previous Council had not completed actions she had raised, namely the personal budget request, mileage payments and payments for B’s attendance at the neurodivergent charity. It said it could not comment on this.
• It had held a panel meeting in February 2022 while progressing the annual review.
• Following the February 2022 meeting, it was considering B’s provision as specified in his EHCP and had consulted with three different mainstream schools to make an informed decision about potential placements.
• Consulting with mainstream schools was part of the Council’s process and it apologised for not properly explaining this properly.
• It was sorry for any delays that had occurred.
• It was still considering Mrs X’s request for a personal budget.
• It could not comment on actions taken by the previous local authority or B’s named school.
• It had not agreed any alternative provision and therefore would not reimburse mileage funds or invoices for B’s support from the neurodivergent charity.
• B was still on the school roll; the school could make safeguarding visits.

41. Mrs X remained dissatisfied with the Council’s investigation and requested it looked at her complaint at Stage Two in April 2022.
42. The Council spoke to Mrs X in April to explain its processes and offered Mrs X a re-assessment to ensure B’s needs were met. It said it was seeking advice from an educational psychologist. The Council also apologised for delay to the process.
43. Mrs X chased the Council in May 2022. She noted the Council’s communication was poor, there had been delay and she asked the Council for copies of legislation relating to EOTAS. She noted she had not been sent a copy of any proposed amendments and said the Council had not written to her to confirm its progress or explain its actions.
44. The Council did respond to Mrs X and said as B was still statutory school age, he needed to remain on the school roll and receive welfare arrangements until it had secured his next provision.
45. The Council reviewed Mrs X’s complaint at Stage Two in June 2022. It reiterated most of its points from its Stage One response, but also said:

• It did not uphold Mrs X’s complaint about the timeliness of the transfer between Councils.
• It had still not received information from the previous local authority about the alleged annual review and therefore could not comment.
• Mrs X’s concerns about mileage payments was not a complaint. It said its transport team was now dealing with this.
• It had now agreed to pay for the invoices for the neurodivergent charity.
• It accepted the Council had caused delays; however, it did not uphold her complaint about safeguarding visits.
• B could be attending the school named in his EHCP.

46. An education psychologist completed a report about B’s needs in June 2022. This noted the current EHCP did not reflect his needs. It also explained B had not been attending school since October 2021, however, the school staff had conducted weekly safeguarding visits.
47. Mrs X said she believed that since B had not attended school, she had witnessed a positive improvement in his mental health and self-esteem.
48. The Council spoke with Mrs X and issued a further draft amended EHCP in June 2022.
49. Mrs X remained dissatisfied and complained to the Ombudsman in June 2022.
50. The Council issued B with his final EHCP on 28 July 2022. This identified B as now receiving EOTAS. At this point Mrs X could have used her right to appeal to the SEND tribunal if she was unhappy with the content of B’s EHCP.
51. The Council’s email shows that B would be removed from the school roll at the end of the summer term.
52. In its response to my enquiries the Council said it had failed to notify Mrs X in writing of its intention to review B’s plan within six weeks of the date of transfer. It also said:

• It had reviewed B’s EHCP within three months of the transfer.

• The previous local authority confirmed the meeting Mrs X attended in November 2021 was not an annual review meeting.
• B transferred to the Council area with a school named on his EHCP.
• The Council had expected B to continue attending his named school and it continued to pay fees to the school (even when he was not attending).
• It was satisfied the school was putting in place offsite alternative provision for B while he was not attending.
• It was in regular contact with the school about B’s absence which it shared with his allocated officer.
• It had considered Mrs X’s views around B’s provision and mainstream education. Following this, it had asked for an educational psychologist report to tell it of what provision B needed. This was then reflected in its final EHCP issued in July 2022.
• It was still considering Mrs X’s request for a personal budget and further provision to be added to B’s EHCP.
• The Council had not made any safeguarding visits to B’s home address.
• The Council has now finalised B’s EHCP agreeing to EOTAS and has provided the provision Mrs X requested.

Analysis

Transfer to a new local authority

53. The Council recognised it did not tell Mrs X when it intended to review B’s plan and whether it proposed to amend within six weeks of the date of the SEND file being transferred. This delay was fault and caused Mrs X confusion and uncertainty.

Annual Review and Final EHCP

54. The Council has accepted there was delay following B’s annual review in early December 2021. It failed to follow the statutory guidance and should have told Mrs X of its proposal to amend B’s EHCP within four weeks. It did not do this, and this was fault. Although only a short delay of a week, I still consider this caused Mrs X frustration and put her to the time and trouble of complaining.
55. The Council issued an amended draft EHCP to Mrs X on 3 February 2022. The guidance is clear. The Council should have issued B and Mrs X with a final EHCP as soon as practicable or within eight weeks. The Council did not issue B with a final EHCP until 28 July 2022. This was fault. In failing to finalise the EHCP within the statutory time limits the Council deprived Mrs X of her appeal rights, causing frustration and put her to the time and trouble of complaining.

Personal Budget

56. The Council’s notes show it has considered Mrs X’s request for a Personal Budget. It has agreed funding for some of the items and activities Mrs X requested. However, it did not agree to other items and activities it considered were too expensive and did not include enough educational content. This was a decision the Council was entitled to make. Therefore, I do not find fault with the Council. In the absence of fault, I cannot question the outcome.

Failure to Provide Alternative Provision

57. The Council’s notes show it first became aware B was not attending his named school in November 2021. This was further confirmed by B’s parents in his annual review in December 2021. I would have expected the Council to have considered securing alternative provision at this time. It was clear B had not attended school for over 15 days and was unlikely to return.
58. The Council should have put alternative provision in place by no later than the start of the following term (3 January 2022). The Council said the school was sending work home for B. It also said B was on the school roll and had access to one session per week at the neurodivergent charity he attended. The Council had a duty to intervene and assess what suitable alternative provision it could provide and assess how many hours of provision B could cope with. I have seen no evidence it did this. I do not consider that one session per week was suitable for an efficient education suitable to B’s needs. I also find that work set by a school to be done at home is not the same as in person teaching and, in most cases, including this one, is unlikely to be sufficient to meet the legal duty. This was fault. This caused B to lose his entitled education provision and caused Mrs X distress, put her to time, trouble and the financial impact of home educating B. I have made recommendations to remedy the injustice caused.

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Agreed action

59. By 29 May 2023 the Council will:

• Apologise to Mrs X for failing to secure alternative educational provision for B, for failing to adhere to the statutory timescales and for causing Mrs X distress, frustration, and putting her to the time and trouble of complaining.
• Pay Mrs X £3000 (for the benefit of B’s education) for the loss of B’s provision between 3 January and 27 July 2022. (This is £500 a month in line with our guidance on remedies and that also allows for school holidays)
• Pay Mrs X £300 in recognition of the distress and inconvenience caused and for putting her to the time and trouble of complaining.
• Share this decision with SEND staff reminding them to follow statutory time limits and to put in place alternative provision without delay.

60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation by finding the Council was at fault for failing to secure alternative provision while B was absent from school. I also find fault with the Council for failing to adhere to statutory time limits during the annual review process. I have not found fault with the Council for the information it gave Mrs X. I have made recommendations to remedy the injustice caused to Mrs X and B.

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Investigator's decision on behalf of the Ombudsman