Summary: Mrs X complained the Council failed to provide her son, C, with suitable alternative education when he was unable to attend school. She also complained the Council failed to adhere to statutory time limits when dealing with C’s Education, Health, and Care Plan. We find the Council was at fault for failing to provide suitable alternative provision, poor communication, and failing to finalise C’s Education, Health, and Care Plan within statutory time limits. This caused Mrs X frustration, inconvenience, and uncertainty. 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 C, was provided with suitable alternative education. Mrs X also says the Council failed to:

• Adhere to statutory time limits when completing his annual Education, Health, and Care Plan (EHC Plan) review.
• Finalise C’s draft amended EHC Plan within statutory time limits.
• Properly deal with her complaint.

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 inconvenience.

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What I have and have not investigated

3. I have not investigated anything after the 8 February 2023. This is when the Council replied to my enquiries. Any new complaints after this date would firstly need to be considered by the Council. Mrs X can complain to the Ombudsman if she remains dissatisfied with the Council’s responses to any new complaints.

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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. I have spoken with Mrs X and considered the information she has supplied in support of her complaint. I have also made enquiries with the Council and have considered all the information it has provided.
8. Mrs X and the Council have commented on my draft decision. I have considered the comments received before making this final decision.

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What I found

Law and Legislation

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 EHC Plan. 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 EHC Plan assessments and producing EHC Plan’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.

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 EHC Plan 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 EHC Plan as it is or amend the plan and tell the child’s parent(s) 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. 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)) “Otherwise” is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. Suitable education means efficient education suitable to a child’s age, ability, and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
19. 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)
20. In 2022 the Ombudsman updated and reissued its focus report ‘Out of school, out of sight?” The key learning point highlighted in this report was that the council has the duty to arrange alternative education, not the school a child attends.

Council’s Complaint Process

21. The Council has a two-stage complaint process. It said it aimed to respond within 20 working days during Stage One. If the complainant remains unhappy, this can be escalated to Stage Two. The Council said it has 25 working days to respond, but this can be extended to 65 working days.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. C has a diagnosis of epilepsy, autism, a neurodevelopmental disorder, learning and listening difficulties, auditory processing difficulties, and visual perceptual difficulties.
24. The Council maintains an EHC Plan for C which was finalised in August 2021.
25. C’s school held his annual review in late November 2021. The Council said due to an administrative error, it did not receive the paperwork for this until June 2022.
26. C’s school emailed the Council in April 2022. It said it had concerns about C’s behaviour. It noted there had been difficulties with C’s attendance. It told the Council while C remained on its school’s roll, he had been attending a different school on a part-time basis. It said this was part of trialling alternative provision to encourage him to attend school.
27. Mrs X emailed the Council in May 2022, confirming C had moved schools following a meeting with the headteachers. Mrs X said this was necessary to enable C to continue attending school.
28. The Council emailed Mrs X with its proposed amendments to C’s EHC Plan in late June 2022. It said Mrs X did not agree to the Council finalising the EHC plan until C had an updated educational psychologist report because she did not consider that the plan had updated C's Special Educational Needs provision.
29. Mrs X complained to the Council in July 2022. She said:

• The Council had failed to meet its statutory requirements or adhere to timescales when amending and finalising C’s EHC Plan.
• The proposed EHC Plan was seven months, out of date, and based on old information from C’s annual review in November 2021.
• C had missed over a third of a school year and asked the Council if it had considered alternative education and how it proposed to make up for lost educational provision.
• The Council had failed to explain or inform her about what she was required to do when it proposed to amend C’s EHC Plan.
• She would not sign the EHC Plan until the Council referred C to an educational psychologist which she had requested at his annual review.

30. The Council emailed Mrs X with proposed amendments to C’s EHC Plan several days later.
31. Mrs X chased the Council in August 2022. She noted that it had failed to respond to her complaint within the timeframe it had set to investigate this at Stage One. Mrs X asked the Council to escalate her complaint to Stage Two. She said C was still not receiving full-time alternative provision.
32. The Council said it became aware C was on a reduced timetable following a call from C’s school at the end of August 2022. It said the school explained C was at risk of permanent exclusion due to escalating behaviours. The Council said it discussed the option of providing C with a tutor and asked the school to look into this.
33. The school contacted the Council again in September 2022. It said C had been involved in an incident that it described as challenging and unsafe. The school told the Council’s inclusion team that C had been issued with a five-day exclusion and that it could not meet his needs.
34. The Council held an emergency EHC Plan review six days after being contacted by the school.
35. The Council said it updated Mrs X the day after conducting the review. It said C would be allocated an educational psychologist in October 2022. It also said it had asked for a priority behavioural assessment from epilepsy support services, and it was looking into funding tuition for C.
36. The Council responded to Mrs X’s complaint in early September 2022 at Stage Two. It apologised for the distress, worry, and concern caused to Mrs X and C. It said:

• Due to an administrative error, C’s annual review documents had not uploaded to the Council’s database. It upheld Mrs X’s complaint and apologised for delay and not finalising C’s EHC Plan within statutory timescales.
• It had requested the SEND team finalise C’s EHC Plan without delay.
• The required amendments had not been actioned by the Council.
• It had undertaken a service-wide restructure, putting in place a review team, and had invested in a SEND transformation programme.
• It was upholding Mrs X’s complaint about poor communication and apologised.
• It had issued Mrs X with an amended EHC Plan in June 2022 and offered to meet Mrs X in September to obtain her views and finalise the EHC Plan.
• If Mrs X remained unhappy with the contents of C’s EHC Plan once it had been finalised, she could appeal to the SEND tribunal.
• It was sorry and upheld Mrs X’s complaint for poor communication and delay when investigating Mrs X’s complaint at Stage One.

37. In October 2022, Mrs X told the Council C had been hospitalised following a mental health crisis.
38. Mrs X also told the Council she had found a tutor in an attempt to help C access education. Mrs X asked the Council to refund the costs of tuition and to consider additional hours of provision so C could access his full 25 hours of education a week.
39. The Council said it contacted C’s school and discussed the funding of C’s tuition. The school told the Council C had access to limited education following his mental health crisis. Mrs X said she told the Council she believed it would be difficult for C to engage with more than two hours of 1:1 with the same person. Mrs X said she also asked the Council to find other activities, such as swimming and activities.
40. Mrs X complained to the Ombudsman in October 2022.
41. The Council said it chased the school for the minutes of C’s emergency review. It said Mrs X remained unhappy with the amended EHC Plan and did not agree to this being finalised until C had been assessed by relevant professionals.
42. The Council said it received C’s emergency review documents from his school in early November 2022.
43. The Council attended a multi-agency meeting to discuss C in November 2022. Also in attendance were C’s parents and other professionals involved in C’s care and support.
44. The Council said it discussed C’s current tuition and potential educational provision with Mrs X. It said Mrs X again requested it pay for the tuition she had arranged for C.
45. A further multi-agency meeting was held in January 2023. The Council said Mrs X said C was unable to access more than two hours of educational tuition a day and asked if the Council could explore alternative activities like swimming and reintegration.
46. The Council told Mrs X it would amend C’s EHC Plan in January 2023, and sent her an amended draft EHC Plan on 7 February 2023.

The Council’s response to my enquiries

47. The Council said it was unaware C had been on a reduced timetable in the spring and summer terms and had only been made aware of this following a call with C’s school in August 2022. It said the school explained it could not meet C’s needs on 13 September 2022 and was at risk of permanent exclusion.
48. The Council also noted the school was in the process of finding a tutor, however, it said Mrs X had found a tutor for C in September 2022.
49. The Council said it was satisfied it had discharged its duties under Section 19 of the Education Act 1996. It said Mrs X told it C could only access two hours of tuition a day in January 2023 and that this was being provided. Mrs X disagreed and said she asked for two hours of 1:1 tuition to be part of a full package of education.
50. It had checked with C’s school to establish whether re-integration was possible, and it was exploring a package of alternative education including swimming and other activities. It had also agreed to fund 70% of C’s tuition and increase his provision to 15 hours a week.

Analysis

Annual Review

51. The Council has accepted it failed to follow statutory time limits following C’s annual review in November 2021. It should have told Mrs X of its proposal to amend C’s EHC Plan within four weeks. It did not do this. The Council has provided no evidence to show how it monitored C’s annual review or what system it had in place to ensure it received the annual review papers from the school. This allowed progress to drift, causing significant delay. This was fault.
52. The Council issued an amended draft EHC Plan to Mrs X in June 2022. This was seven months after C’s annual review and was fault. An emergency review took place in September 2022. The Council issued a further amended draft EHC Plan in February 2023, this was five months after the emergency review took place. The Council was at further fault here for significant delay. I appreciate the Council needed to receive the paperwork from the school, however, I would have expected the Council to have approached this with a sense of urgency, which is not apparent from the evidence I have seen.
53. The Council has accepted C’s EHC Plan required amendments. The legislation is clear, the Council should have issued Mrs X with a final EHC Plan as soon as practicable or within 12 weeks of the November 2021 annual review. It did not do this, and this was fault. I acknowledge there appears to be a disagreement about the content of C’s EHC Plan. While it is not for me to consider or decide the appropriate content of the EHC Plan, the issuing of a final EHC Plan carries a right of appeal to the SEND Tribunal. The Council should have issued the final plan and Mrs X could have used her right of appeal if she disagreed with the content. The Council’s failure to issue a final plan has frustrated her right of appeal.
54. C’s amended final EHC plan should have been issued in February 2022. The Council has still not done this. As of the date of this report, that is a delay of over a year. Depending on the content of the final amended EHC plan, C may have missed out on EHC provision throughout this delay. However, this can only be assessed once the EHC Plan is finalised. Given this, I have recommended once the Council finalises C’s EHC Plan it considered whether C missed EHC provision during the period of delay, and if he did, to remedy this in line with our guidance on remedies.
55. In addition to the potential injustice of lost EHC provision, the Council’s delay caused Mrs X frustration as she had to continually chase the Council to fulfil its statutory duties and prevented her from accessing her right of appeal to the SEND tribunal.

Alternative Provision

April until July 2022

56. The Council’s response to my enquiries said it was unaware C was on a reduced timetable until 31 August 2022. However, the Council’s notes show it was aware C was trialling alternative provision in April 2022 and not accessing full-time education. Once the Council was aware C needed to access alternative provision in April 2022, I would have expected it to have assessed what provision it should provide and how many hours of provision C could access. I have seen no evidence it did this. The Council’s failure to assess C’s ability to access alternative provision creates uncertainty about whether he was offered suitable alternative provision between April and July 2022. This was fault.

August 2022 until January 2023

57. In August and September 2022, C’s school told the Council it could not meet his needs and he risked exclusion. In response, Mrs X hired a tutor for C. However, it was the Council’s responsibility to provide C with alternative education, not Mrs X’s. The Council should have assessed C’s need for alternative provision from September 2022 once the new information was received from his school. It did not and this was fault. In its response to my enquiries, it said it understood the school was finding a tutor. I have seen no evidence of this or that it assessed what alternative provision C could access. This fault meant Mrs X had to fund a tutor herself and creates uncertainty about the amount of alternative provision C could have accessed.

Communication

58. The Council accepts it did not communicate properly with Mrs X and upheld her complaint about this matter. It also apologised for the time it took to investigate the complaint at Stage One. This was fault and added to Mrs X’s frustration and inconvenience. However, I am satisfied the Council’s apology has remedied this injustice and I do not intend to investigate this further.

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Agreed action

59. By 7 September 2023 the Council will:

• Apologise to Mrs X for failing to secure alternative educational provision for C, for failing to adhere to the statutory timescales and for causing Mrs X frustration and uncertainty.
• Pay Mrs X £300 for the frustration and inconvenience she was put to having to chase the Council to fulfil its statutory responsibilities.
• Finalise C’s EHC Plan.
• Pay Mrs X £250 for frustrating her right of appeal to the SEND tribunal.
• Pay Mrs X £300 for the uncertainty caused by its failure to assess the amount of alternative provision C could access.
• Share this decision with SEND staff reminding them to follow statutory time limits and to put in place alternative provision without delay.

60. Once the Council has finalised C’s EHC Plan, it should consider whether C has missed EHC Plan provision since February 2022. This will be based on the new EHC Plan. If C has, the Council should remedy the missed provision in line with our guidance on remedies. This exercise should be completed within two months of the final decision. If Mrs X remains dissatisfied with the suggested remedy, she is entitled to contact the Ombudsman to complain.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation by finding the Council was at fault that caused an injustice to Mrs X. The Councill has agreed to my recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman