Summary: Mrs X complained the Council delayed in issuing a final Education, Health, and Care Plan for her daughter after an annual review, with further delay by the Council in finalising decisions for an Education Otherwise Than At School package. We have found fault by the Council with its failure to adhere to statutory timescales and deliver provision in line with its legal duty. The Council has agreed to our recommendations for an apology and financial payment to remedy the injustice caused.

The complaint

1. Mrs X complains the Council has failed to provide Education Otherwise Than At School (EOTAS) for her daughter, whom I refer to as “C”, since her request in March 2022 and the Council has delayed throughout the statutory Education, Health, and Care Plan annual review process.
2. She says her daughter’s mental health has deteriorated as she has lost out on education with little provision in place, and the whole process has caused the family frustration, distress, and uncertainty.

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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. 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

6. I discussed the complaint with Mrs X and considered her views.
7. I made enquiries of the Council and considered its written responses and information it provided.
8. I considered the Special Educational Needs and Disability (SEND) Regulations 2014 and SEN Code of Practice 2015.
9. 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

Law and administrative background

10. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. 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))

Education, Health and Care Plans (EHCP)

13. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHP 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.
14. The Council is responsible for 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 EHCP has not been provided, or where there have been delays in the process.
15. The procedure for reviewing and amending EHCP is set out in legislation and government guidance.
16. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a council proposes to amend an EHCP, 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)
18. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
19. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
20. 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
21. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Background

22. In March 2021, the Council issued a final EHCP for C after an appeal to the SEND Tribunal. It named a school in Section I as the setting where she would receive her educational provision as detailed in Section F. This included a gradual transition for C to attend the school.

What happened

23. I have summarised below the key relevant events; this is not intended to be a detailed account of everything that happened.
24. In March 2022, an annual review of C’s EHCP took place where C’s school shared it could not meet her complex needs. C had not been attending since May 2021. The school had tried a range of approaches to transition her into attending but was unsuccessful. It had arranged a tutor for C up until July 2021 and had found another for March 2022. Professional advice supported a school setting was not a suitable environment for C. Mrs X made a request for a bespoke EOTAS package.
25. In April, the Council issued a draft amended EHCP with changes to reflect the above.
26. At the end of May, the Council agreed to fund parts of the proposed EOTAS package:
• a tutor for up to 15 hours a week – the aim was to start with a few hours and to slowly increase this according to C’s engagement and interest,
• Occupational Therapy (“OT”) – C was receiving two hours per week,
• sessions for emotional support/mentoring – C was receiving up to two hours per week since the beginning of the year.
27. There was disagreement about approving a Lifeskills Qualification (“LQ”) for C and Speech and Language Therapy (“SALT”). At the time, the tutoring service was put on hold at the request of Mrs X’s advocate, with the service confirming it would source an appropriate tutor for C ready for September 2022. SALT was part of C’s current EHCP to be delivered in a school setting. C was removed from the roll at her school.
28. As the LQ was not on the Council’s approved providers list, the Council requested further information from the provider in June and asked for it to increase its insurance.
29. Between June and July, the tutoring service contacted the Council three times asking if support was still required from them in September.
30. In July, Mrs X’s advocate formally complained to the Council about the delays with C’s final amended EHCP and delays with decisions about C’s EOTAS package. This was escalated to Stage Two in August, where it was added the Council had further delayed in not chasing up responses from the LQ provider. In September, the Council’s final response upheld all parts of Mrs X’s complaint.
31. At the beginning of August, the Council confirmed to the tuition service it wanted a tutor for C in September. In mid-September, the tutoring service confirmed it could not provide a tutor for C’s needs.
32. In October 2022, Mrs X complained to us.

The Council’s response to my enquiries

33. At the end of October 2022, the Council issued a further amended draft EHCP.
34. In November, the LQ was formally approved and confirmed by the Council, and it agreed to backdate funding for this provision from September 2022.
35. The Council confirmed a tutor has been in place for C since January 2023, with sessions increasing in line with her best interests. C is currently on the waiting list for a SALT assessment.
36. In February 2023, the Council issued a final amended EHCP. Mrs X can now use her appeal rights if she is not satisfied with it.

Analysis

37. The council has a statutory duty under S19 of the Education Act 1996 to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’. Councils usually expect schools to arrange off-site provision in the first instance, but the duty to provide full-time education remains with the council.
38. The Council should have issued a final amended EHCP within 12 weeks of the annual review in March 2022, by the end of May. It took until February 2023 – a delay of around 9 months. I acknowledge it had taken time to try and accurately reflect C’s needs and to obtain information for the EOTAS package, but during this period Mrs X had no right of appeal. This denied her the opportunity to formally challenge the Council’s views on how C’s needs will best be met. The Council is at fault for this significant delay, leaving Mrs X in limbo and causing distress and uncertainty.
39. Following on from this, had the EHCP been finalised within the expected timescale at the end of May, we would have expected provision to have been in place by the start of September. Due to the delays with the final EHCP, this did not happen. This meant C’s EHCP at the time, dated March 2021, was not up to date and did not reflect her current situation. Provisions detailed within it were based on a school setting, which was no longer considered appropriate for C’s needs.
40. The Council says it was not until March 2022 at the annual review that it was aware C was not attending school when the EOTAS proposal was requested. I note tutoring was arranged by the school for C up until May 2022 when Mrs X put it on hold, alongside work being done by the Council to amend the EHCP. However, I have not seen evidence the Council further considered its S19 duties at this point to ensure other provisions or the equivalent in C’s EHCP at the time were being delivered to C. It still had a legal duty to arrange this. This is fault.
41. The Council agreed to fund three elements of the EOTAS proposal at the end of May 2022. C was receiving part provision - four hours per week for two of these elements. The third provision was for a tutor, which was intended to be built up and become the majority of the provision. This did not start in September as initially planned. The Council did not respond to the enquiries from the tutoring service for nearly two months or give appropriate notice for the service to find a suitable tutor in time. The Council knew in May it needed to organise a tutor for September. This lack of action is fault by the Council.
42. The Council accepted it had delayed in responding to the LQ provider and has agreed to backdate payments to September. I am satisfied this is appropriate.
43. I note the amount of education provided to C was going to be gradually increased, but limited provision has been provided since the Council was aware she was not attending school in March 2022. As a result of the faults above, C has not received her EHCP provision (or equivalent) from March to July 2022 or as agreed by the Council with EOTAS from September to December 2022. This has caused injustice as C has missed out on provision, learning opportunities and support she is entitled to.
44. Mrs X requested reimbursement for the costs of her advocate. As explained in our published Guidance on Remedies, we would not normally recommend this as a remedy unless in exceptional circumstances or particularly complex cases. In my view this is not such a case.
45. In my draft decision, I recommended the Council review its processes to ensure final EHCPs are issued within statutory timelines, minimise delays and send guidance to staff.
46. In response to my draft decision, the Council said it had already taken appropriate measures to address this. In a number of our previous decisions over the past 12 months, similar recommendations around EHCPs and SEN provision have been made. The Council confirmed it had taken a number of key actions in light of this. It had recently undergone a full SEND Service restructure and invested in a transformation programme. Several teams have been formed, along with a phoneline for SEN Co-ordinators to call to get advice.
47. Therefore, I have removed this recommendation before issuing my final decision as I am satisfied with the steps the Council has said it is currently making to improve its SEN services as a whole.

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Agreed action

48. To remedy the injustice outlined above, the Council has agreed to carry out the following actions:
49. Within one month of the final decision:
• Apologise to Mrs X in writing for the delays in the amendment process and finalisation of the EHCP, and for provision C has missed out on;
• Pay Mrs X £300 for her time and trouble in pursuing the complaint; and
• Pay Mrs X £2000, in recognition of missed provision for C caused by the faults identified above. This is calculated at £250 a month from April (when we would consider it reasonable for provision to have been made once the Council was aware C was not attending school) to July 2022, and from September to December 2022. This is to be used for C’s educational benefit.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I found fault with the Council causing injustice to Mrs X and her daughter. The Council has agreed to my recommendations and has carried out actions to remedy this. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman