Summary: Ms B complained the Council failed to provide her son with alternative provision when he could not attend school for medical reasons. She adds the Council failed to provide the special educational provision in her son’s Education, Health and Care plan for over three years and it failed to hold and complete annual reviews and update the plan. We find the Council was at fault for failing to provide Ms B’s son with alternative provision in a timely manner. It also delayed holding and completing annual reviews and updating the Education, Health and Care plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms B complained the Council failed to provide her son, C, with alternative provision when he could not attend school for medical reasons. She adds the Council failed to provide the special educational provision in C’s Education, Health and Care (EHC) plan for over three years. Finally, she says the Council failed to hold and complete annual reviews and update C’s EHC plan.
2. Ms B says the Council’s failings have had a significant impact on her and her family. She says C has missed out on most of his secondary school education.

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What I have and have not investigated

3. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Ms B exercised her right to appeal to the SEND Tribunal about the content of F’s EHC plan. Her appeal encompassed all the provision in section F of the plan. Therefore, I have not investigated what educational support the Council provided to C after 4 April 2022 as this cannot be separated from the matters Ms B raised in her appeal.

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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. 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.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. 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

9. I considered information from Ms B. I made written enquiries of the Council and considered information it sent in response.
10. Ms B 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

Education, Health and Care plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
12. 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.

Annual reviews

13. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
14. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
15. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
16. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.

Alternative provision

17. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
18. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.

What happened

19. This chronology provides an overview of key events and does not detail everything that happened.
20. Ms B’s son, C, has special educational needs and an EHC plan.
21. Ms B contacted the Council in March 2019 and said C was struggling with his anxiety and therefore he could not attend school (School A).
22. The Council issued an amended EHC plan in August 2019 which named a different school (School B).
23. C attended School B for half a day in September but did not return because of his anxiety. Ms B made the Council aware of this.
24. Ms B emailed the Council in December and asked it to complete an annual review of C’s EHC plan. The review was arranged for April 2020, but it did not go ahead because of the COVID-19 pandemic.
25. The Council re-arranged the review for July. The meeting ended abruptly after a disagreement about whether School B could meet C’s needs.
26. Ms B attended a meeting in September with School B and Council officers to establish a plan for C. School B said it would offer C some online education in one subject. The Council did not complete the annual review documentation after this meeting.
27. C accessed some limited education in October. However, he struggled to engage and therefore the sessions were cancelled.
28. School B arranged for a review of C’s EHC plan in April 2021. Ms B said she wanted C to access Education, Otherwise Than at School (EOTAS).
29. School B ended C’s placement in May.
30. The Council wrote to Ms B and recommended a reassessment of C’s needs as he had not accessed formal education since September 2019. It also said it would remove School B from C’s EHC plan.
31. Ms B complained to the Council in June 2021. She said it failed to provide alternative provision for C and it failed to conduct annual reviews for over two years.
32. The Council responded to Ms B’s complaint and said C was not in education because of his anxiety. It said it would amend C’s EHC plan to include EOTAS.
33. Ms B contacted the Council and said she was unhappy with its response. She re-iterated her concerns about the delays in conducting annual reviews. She also said there was no adequate provision in place for the upcoming academic term.
34. The Council responded to Ms B’s further concerns at the end of July. It said the placement at School B was not successful and it had delayed reviewing C’s EHC plan. It apologised for this. It also offered to meet with her to discuss C’s EOTAS package.
35. The Council met with Ms B in August to discuss C’s EOTAS package. Ms B said she had sourced two online learning platforms.
36. The Council met with Ms B again in October. She said she did not want a lot of educational provision for C due to his anxiety. The Council agreed to pay for a laptop, gym membership and access to a charity for heritage conservation.
37. Ms B referred her complaint to stage two of the Council’s complaints procedure the same month. The Council appointed an independent Investigating Officer (IO) to investigate the complaint.
38. The Council signed off C’s EOTAS package in November. C started receiving online learning later that month. This started off as 30 minutes per week and gradually increased to two hours per week.
39. The IO produced his report in February 2022. He upheld seven of Ms B’s complaints, partially upheld two and did not uphold one. He said the Council failed to organise alternative provision in a timely manner when C could not attend School B and it allowed the situation to drift. He said the Council failed to follow up after a meeting that was held in November 2019, there was limited involvement from mental health services in meetings, and there was little direct work between Ms B, School B and the Council to find a way forward. He found the Council delayed completing annual reviews and it failed to adhere to statutory timescales in amending C’s EHC plan after the annual review meeting. He noted the Council had not amended C’s EHC plan after the annual review in April 2021. He also found the Council had not secured therapeutic support for C as part of the EOTAS package. He recommended for the Council to:

• Apologise to Ms B.
• Take appropriate action to ensure annual reviews are undertaken with the required frequency and completed in a timely manner.
• Provide Ms B with an up-to-date position regarding the development of an EOTAS policy.
• Send Ms B a timetable of when it would undertake an annual review of C’s EHC plan and discuss further development of his EOTAS package.

40. The Council considered the IO’s findings and issued its stage two response in March. It apologised for the distress and inconvenience caused. It agreed to review its processes for annual reviews to avoid similar issues. It said it would undertake a formal consultation for an EOTAS policy which was likely to be published in Autumn 2022. It confirmed it would send an updated version of C’s EHC plan the following day. Finally, it agreed to meet to discuss C’s EOTAS package and agree a date for an annual review.
41. The Council issued C’s final amended EHC plan in April 2022. Ms B appealed to the SEND Tribunal about the specialist provision listed in the plan.
42. Ms B referred her complaint to stage three. She said the Council had continuously delayed matters and it had failed to implement the EOTAS package and increase the amount of education C could access.
43. The Council arranged a stage three panel to consider Ms B’s case in October. The panel focused on the two partially upheld complaints and the one complaint that had not been upheld. They changed the findings of these complaints to upheld. They found the Council had significantly delayed implementing the EOTAS package. They recommended for the Council to publish the relevant policies on its website, to complete the recommendations from the IO’s report and to consider a suitable financial remedy for Ms B.
44. The Council wrote to Ms B in December. It confirmed it was still reviewing its practices to ensure it met its statutory obligations for annual reviews and education for children who cannot attend school due to illness. It also said it was still developing an internal EOTAS guidance document. It offered Ms B £1,500.
45. Ms B rejected the Council’s offer. She said the failings went back to September 2019 and to offer £1,500 for the loss of education over three academic years was unsatisfactory. She proposed £21,300 for C’s missed education. She also proposed £1,000 for her avoidable distress and £300 for her time and trouble.
46. The Council wrote to Ms B in January 2023. It said despite its failings, C would have missed a significant amount of education between 2019 and 2022 because of his anxiety. However, it offered to increase the amount to £4,300.
47. Ms B responded and said there was no evidence that C could not access any form of education. She said the Council failed to explore what C could access and keep things under review. The Council responded and said it had issued its final response on the matter.

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Analysis

48. The findings in Ms B’s complaint date back to September 2019. She did not refer her complaint to us until November 2022 and normally historical issues would be caught out by the restriction in paragraph six of this statement. However, this was an ongoing matter affected by continual delays. Ms B has also explained personal family circumstances prevented her from making her complaint to the Council sooner. I consider these are good reasons for Ms B’s delay in bringing her complaint to the Ombudsman, and so I have exercised discretion to look at matters from September 2019.
49. The IO agreed a statement of complaint with Ms B and confirmed her desired outcomes. The investigation took account evidence from a range of sources and addressed all of Ms B’s complaints in detail. The panel upheld all of Ms B’s complaints. I am satisfied the Council’s investigation into Ms B’s complaint was detailed and thorough. Therefore, my focus will be on whether the remedy offered was appropriate.
50. It is clear there are a significant number of faults in this case. The Council failed to provide alternative provision for C in a timely way, it delayed completing annual reviews and it failed to adhere to statutory timescales in finalising C’s EHC plan. It also delayed implementing the EOTAS package and increasing the amount of education C could access in the package. We issued a focus report in 2016 which set out how we expect councils to fulfil their responsibilities to provide education for children who do not attend school fulltime. We recommended that councils should consider the individual circumstances of each child, consult all the professionals involved in a child’s education and welfare and put whatever action is chosen into practice without delay. The Council failed to adopt these recommendations when dealing with C’s case.
51. These faults have caused C a significant injustice as his education has been disrupted over an extended period. Children have a right to an effective education and any time they miss is difficult to replace later. Ms B has also been caused significant upset, distress, and frustration due to the Council’s faults and her appeal rights to the SEND Tribunal have been significantly delayed.
52. The Council has apologised to Ms B and offered £4,300. I asked the Council to explain how it arrived at this figure. It said the evidence suggests that C could not have accessed education in a school setting or online until July/August 2021 because of his anxiety. It says its offer is based on a period of 10 months delay where the EOTAS package could have been increased earlier (from February/March 2022) to the end of December when the increased EOTAS package was finalised by the SEND Tribunal. This is calculated at £300 per month for 10 months which is £3,000. It says its offer also includes £1,000 for Ms B’s distress and £300 for her time and trouble.
53. I have considered whether it is likely C could have accessed education sooner. The medical evidence states C needed detailed and individual support to help manage his severe anxiety. Further reports stated C’s anxiety increased significantly when he thought of education, he could not access education online and he was responding well to input from his parents at home who did projects with him to allow him to learn indirectly. Ms B also emailed the Council and said she wanted an EOTAS package to include therapists to support her to support C as she was the only person that he would interact with.
54. The evidence is clear C would have struggled to access formal education in a school setting or online because of his anxiety. However, because of the Council’s drift and delay and its failure to hold and complete annual reviews, there was a missed opportunity to explore much sooner whether C could have accessed a more bespoke form of education that was appropriate for his needs. It was Ms B’s suggestion to pursue EOTAS, and there is no evidence the Council considered this option until she suggested it. Therefore, I do not accept the Council’s assertion that C would have not received any form of education from September 2019 until July/August 2021. The Council should make a payment to reflect the missed education and provision during this time.
55. The Council agreed during the complaints process to implement service improvements to prevent a recurrence of the fault. When it responded to my enquiries, it confirmed it is developing an EOTAS guidance paper that is in the final stages of sign off. It has prepared a medical tuition guidance paper for children who are unable to attend school due to illness which has been signed off and will shortly be on its website. Following implementation of these guidance papers relevant staff will receive training. Given the length of time this matter has been going on for, the Council needs to provide me with evidence the guidance has been published and it had has provided training to relevant staff.
56. The Council also agreed to review its annual review processes during the complaints process. When it responded to my enquiries, the Council directed me to its annual review guidance on its website. I am not satisfied that simply having guidance on its website shows the Council has learnt adequate lessons on the annual review process. I make further service improvements to prevent a recurrence of the fault.

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Agreed action

57. To address the injustice caused by fault, by 4 July 2023 the Council has agreed to:

• Apologise to Ms B and C.
• Pay Ms B the £1,300 it offered in response to her complaint for her time and time and trouble and distress.
• Pay Ms B a further £7,762.50 for the loss of C’s educational provision. This is calculated at £350 per month from October 2019 to November 2021 and then £250 per month until April 2022. We recommend Ms B uses this payment for C’s educational benefit.

58. To improve its service, by 30 August 2023 the Council has agreed to:

• Publish the EOTAS and medical tuition guidance papers on its website.
• Carry out mandatory training for all relevant staff on the content of the EOTAS and medical tuition guidance papers.
• Carry out mandatory training for all relevant staff to ensure they are aware when an annual review must take place and the statutory timescales for issuing EHC plans after an annual review.

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

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Final decision

60. There was fault by the Council, which caused Ms B and C an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman