Summary: The complainant alleged that the Council delayed in providing alternative, fulltime education when her son’s special school ended his placement, and the Council failed to provide the therapies required by his Education, Health and Care (EHC) Plan. We find fault with the Council’s actions. The Council has agreed the recommended ways to remedy the resulting injustice. We are therefore closing the complaint.

The complaint

1. The complainant, whom I refer to as Mrs X, complained that:
1. in October 2020 the Council failed to carry out an annual review of the complainant’s son’s (B’s) Education, Health and Care (EHC) Plan, as required;
2. when B’s school, School C, ended his placement in January 2021, the Council failed to seek an alternative placement promptly. By this stage, B was in Year 10, starting his General Certificate Secondary Education Examinations (GCSEs);
3. in March 2021, the Council failed to provide B with alternative education, which covered the GCSEs he had planned to sit, only providing English Language, Mathematics and Science;
4. that the Council failed to provide the required Occupational Therapy (OT) and Speech and Language Therapy (SALT) since B has been out of school since January 2021;
5. the Council did not agree to an annual review, as requested by the complainant, in 2021 and only held one in early 2022; and
6. the Council failed to make prompt arrangements for B to sit his GCSE examinations.
2. As a result, B did not receive suitable education (missing out on studying all his GCSEs) and he was not able to achieve the required GCSEs to enrol at College on an Engineering course at Business and Technology Council (BTEC), level 3. Instead, he has had to enrol at level 2, which will add a further year of study. The lack of OT and SALT and a school place has also meant B has had problems interacting with peers at College. The complainant and her family have suffered avoidable distress, frustration and lost opportunities.

Back to top

What I have and have not investigated

3. I am investigating events from October 2020 to July 2022. I am not investigating any complaint about the content of the April 2022 EHC Plan because Mrs X had a right of appeal to the Special Educational and Needs Disability (SEND) Tribunal.

Back to top

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 SEND Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
6. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
8. If we are satisfied with a council’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)
9. 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 the final decision with Ofsted.

Back to top

How I considered this complaint

10. I have spoken to Mrs X on the telephone and made enquiries of the Council. Mrs X has responded to the Council’s chronology.
11. I issued a draft decision statement to the Council and Mrs X. I have taken into account their further comments before reaching my final decision.

Back to top

What I found

12. A child with special educational needs 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. Section F sets out the special educational needs provision and Section I names the suitable placement.
13. The Council is responsible for 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. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Annual reviews

15. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
16. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
17. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan it must do that “without delay”. A recent court case stated amended EHC Plans should be issued within 12 weeks of the annual review.
18. Where a child is due to enter post 16 provision, a council should issue a final EHC Plan by 31 March so that parents have time to appeal, if necessary, before the start of the school year in September.

Children out of school because of medical needs

19. 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 period receive suitable education unless arrangements are made for them”.
20. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
21. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
22. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
23. In July 2022, the Ombudsman issued a Focus Report: Out of school, out of mind?

The Council’s procedures

24. The Council launched its online EHC Hub in 2019 to process new assessments and reviews more effectively, and to help prevent delays. The Council delegates its responsibility for arranging and chairing annual reviews to the school which the child attends.
25. The Council has recently arranged a new purchasing system for alternative provision, and it is aiming to try to ensure pupils out of school have the same access to full-time education as their peers. However, one to one tuition is more intensive so a pupil out of school may not receive the same amount of hours.
26. The Council says that there is a national shortage of OT and SALT therapists. It is reviewing its commissioning of therapy.

Events of this complaint

27. This is a brief account of the main events.
28. The Council issued a EHC Plan for B in 2015. B is high functioning autistic and has associated speech, communication and social interaction difficulties. He also has developmental coordination disorder and high levels of anxiety. In January 2019, B was assessed as having a profound progressing language impairment and difficulties in his sensory processing. In short, B has complex needs. He has particular skills in mathematics, science, information technology and design. And Mrs X says he has always been interested in engineering.
29. In May 2019, after a Tribunal hearing, B was placed at a special school, School C. B’s EHC Plan stated that B’s SALT should provide training to school staff and that the therapist should be working on site as a member of the school staff. The therapist was also to be involved in preparing B’s personal learning plan and work with other school staff. It was agreed that B should also have 45 minutes of weekly SALT.
30. In respect of OT, the EHC Plan stated that OT should be integrated into the classroom and individual OT for 30 minutes per week should take place, and 15 minutes working with staff. And there should be additional sessions if the OT changes to allow B to build up a trusting relationship. The OT should also be involved in writing B’s personal learning plan.
31. In October 2020, the Council agreed additional funding to maintain the placement at School C. It seems that Mrs X may not have been aware of this at the time.
32. The Council says that, in consultation with School C, it arranged an annual review for November 2020. However, this was cancelled at the last moment and Mrs X was unable to attend the new proposed date. The review was postponed to January 2021. It seems School C prepared a review report.
33. In late November 2020, School C arranged a disruption placement meeting with Mrs X and a Council’s special educational needs (SEN) caseworker. School C gave six weeks’ notice that it would terminate B’s placement. Mrs X says that she asked the SEN caseworker to arrange interim education, starting in January 2021, while looking for alternative special school placements.

Events of 2021

34. B’s placement at School C ended in January 2021. By this stage, B was in Year 10, the beginning of his GCSE courses. Mrs X says that B was predicted to sit 8 GCSEs when at School C.
35. In mid-January 2021, the Council consulted Mrs X’s preferred school. In February 2021, it consulted other special schools and again in April. The Council says that these schools were either unwilling to admit B or did not have capacity. Mrs X says that the Council was unwilling to amend the EHC Plan and issue an amended final Plan, even though B was no longer at School C. This meant that there was no opportunity for Mrs X to appeal an amended final EHC Plan with a different named school, or no named school, or to request Education Otherwise Than At School (EOTAS).
36. Mrs X also says that, without an amended final EHC Plan, the schools consulted, after the placement ended at School C, did not have up-to-date information. She wonders whether this would have made a difference to their response.
37. The Council says that, in total, it consulted ten schools between January and October 2021. In October 2021, a school offered an assessment. But Mrs X declined this because she considered there was little purpose in seeking a school place when B only had two terms left of Year 11. In December 2021, she confirmed her view in writing and asked the Council to focus on B’s transition to post 16 education.
38. The Council says that there is a national shortage of specialist school places, and it is particularly difficult to place a pupil in Year 10 into a new school. This explains why it could not find an alternative school place. Mrs X says that the Council did not tell her, at the time, that there were no available school placements. Had she known this, she says she would have asked for EOTAS sooner rather than waiting for an available school place.
39. When there was no alternative education provided in January 2021, Mrs X chased this up with the Council in January and February 2021.
40. In February 2021, the Council approached a tuition agency to provide alternative education while it looked for an alternative special school placement. In late February/early March 2021, the Council approached independent SALT and OT providers. The SALT provider considered it should set up a meeting with Mrs X to devise a SALT programme to be delivered at home by the parents.
41. The Council says that School C agreed to set up an annual review in March 2021, but the Council says that Mrs X could not attend because of the short notice.
42. Mrs X says that she was told by the special educational needs (SEN) manager that, because B did not attend School C, the Council was responsible for setting up the review. And this would be virtual. Mrs X says this was planned for 31 March 2021. But it did not go ahead. Mrs X says that she was not given any reasons for this failure. The Council says it approached School C again to arrange a review. But there was no further action, and a review did not take place until March 2022, some 40 months after the last review (2018).
43. On 8 March 2021, English Language and Science tuition started. Mrs X says she had to chase up the provision of Mathematics tuition. This started in mid‑April 2021. And, because B needed 5 GSCEs to go on to post-16 education at grade 4 or above, he could not undertake the double Science award and had to take the triple award (Chemistry, Physics and Biology separately) to achieve the required 5 GCSEs.
44. The alternative education provision amounted to 15 hours weekly tuition. Mrs X says that B had to drop some of his favourite GCSEs, History, Art, Computer/Information Technology and Food and Nutrition. The Council also provided 1 hour weekly counselling sessions.
45. In October 2021, Mrs X started to make enquiries of the Council about booking B into an examination centre to sit his GCSEs (as he was not at school, the Council was responsible for arranging this). The Council replied to Mrs X’s third email and told her that it would approach her local examination centre. By December Mrs X had not heard further, so she contacted the SEN caseworker. She was told this was in hand. But by this stage Mrs X’s local examination centre was not accepting any further candidates for examinations in the summer of 2022.

Events of 2022

46. In early 2022, there were numerous emails between Mrs X and the Council about finding a suitable examination centre, which could provide the special access requirements needed for B (single room, a scribe, and ability to take movement breaks) and provide the correct examination board papers. Mrs X says that, once an appropriate examination centre was found, the Council made errors on the entry forms, which Mrs X had to correct. B did sit his examinations in the summer of 2022, but Mrs X says without all the reasonable adjustments which he required. The Council provided free school transport.
47. On 24 March 2022, there was an annual review and the Council agreed to amend B’s EHC Plan. The amended final EHC Plan should have been issued by 31 March 2022. It was issued at the end of April 2022. Mrs X did not consider it necessary to appeal.

Occupational Therapy (OT)

48. Mrs X says that she also had to chase this up. In April 2021, the Council told her that it had found a therapist, but Mrs X did not hear further. In May, Mrs X contacted the OT therapist. The OT therapist told her that she had informed the Council that she could not take on B. It seems that there was no further OT provided until B started at a mainstream post 16 College in September 2022.

Speech and Language Therapy (SALT)

49. Mrs X says that she also had to chase this up. In April 2021, the Council agreed that a therapist would carry out an assessment, using a particular assessment tool. Mrs X says that the assessment was not carried out in accordance with this. Mrs X says that B received no SALT provision since leaving School C in January 2021.

The claimed injustice

50. Mrs X says that B has been disadvantaged by not being able to pursue the GCSEs which he wanted and was capable of doing. Therefore, he did not have the same opportunities as other children who were in school. There has been a significant decline in his quality of life and the lack of OT and SALT has had a considerable impact, resulting in B becoming more anxious and less able to cope outside the home. Mrs X says she has been unable to return to work, and she has had to provide the sensory support without proper knowledge or support or equipment.

The Council’s consideration of Mrs X’s complaints

51. Mrs X complained in March 2022. The Council sent a final response in June 2022. It upheld Mrs X’s complaints that there was no annual review and no SALT or OT provision. But it considered that the failure to find a suitable alternative specialist placement was because of the shortage of places, and it had provided suitable alternative education and the arrangements for the GCSEs were appropriate. The Council also considered that there was no requirement to amend B’s EHC Plan after he left School C because there were no material changes. However, the Council recognised that its delay in issuing the amended EHC Plan had caused some injustice (mainly time and trouble) avoidable distress and it offered a symbolic payment of £300.
52. Mrs X was dissatisfied and complained to the Ombudsman.

Findings: (a) failure to arrange an annual review in October 2020

53. At this stage, School C was primarily responsible for arranging an annual review. It seems that it did try to arrange the review, but the date was not suitable for Mrs X. Soon after this, School C gave notice to end B’s placement. I do not find fault by the Council.

Complaint (b): delay in seeking an alternative specialist school placement after School C ended B’s placement in January 2021

54. I accept that it can be difficult to find a suitable specialist placement for a Year 10 or 11 pupil. It also seems that the Council did consult various schools during 2021 at various points. But possible schools should be consulted concurrently rather than consecutively and, not to do so, my view is that this is fault. But I cannot say that, but for this fault, this would have resulted in a placement.
55. The Council should have also kept Mrs X informed about these consultations, and the schools’ replies. I also consider the Council should have amended B’s EHC Plan, when his placement at School C ended, even if Section I just named the type of school required. If the Council had done this, this would have triggered a right of appeal to SEND for Mrs X. Mrs X says that she would have appealed. So, it was a lost opportunity for her.

Complaint (c): failure to provide alternative education provision which also covered B’s chosen GCSEs;

56. Mrs X requested alternative educational provision, starting in January 2021, while the Council also looked for an alternative school placement. The alternative provision started at the beginning of March 2021. I consider that this should have started in January 2021 given the Council had been given six weeks’ notice of the termination of B’s placement at School C. That was time enough to have alternative provision in place.
57. B was out of school through no choice of his or Mrs X’s. The Council should have ensured that he could pursue his chosen GCSEs, so that B was treated in the same way as his peers at school.
58. I find that the Council was at fault in its delay in providing alternative provision, and failure to enable B to pursue all his chosen GCSEs. I cannot say what the outcome would have been but for these faults. But it was a lost opportunity for B.

Complaint (d): failure to provide OT and SALT

59. I appreciate the Council was struggling to find therapists, but the law is clear councils are responsible for making sure that arrangements specified in EHC Plans are put in place. The Council has a non-delegable duty to ensure the provision in an EHC Plan is being delivered. While the Council arranged for an OT and SALT assessment, it seems that B received no therapies from January 2021 until he started his post-16 education in September 2022. That is six school terms of lost intensive therapy.
60. My view is that this is fault, and the Council has accepted this. The absence of these therapies is likely to have caused a deterioration in B’s abilities to manage generally, in particular with his GCSEs and in his new College placement.

Complaint (e): failure to arrange an annual review in 2021

61. The Council has accepted this as fault. The consequence is there was no opportunity to review B’s needs and his EHC Plan or consider whether the Council should make amendments to the Plan. It is likely that this would have been necessary given B was out of school and not at the placement named in his EHC Plan.
62. The Council also delayed in issuing an amended final EHC Plan after the annual review of March 2022. This was not issued until late April 2022.

Complaint (f): failure to make prompt arrangements for B’s GCSE examinations

63. Mrs X had to go to a lot of effort to ensure the Council made the necessary arrangements. And she says she had to correct the forms completed by the Council and B did not have all the necessary reasonable adjustments. On the evidence available to date, my view is that this amounts to fault.

Back to top

Agreed actions

64. To remedy the injustice, the Council will within one month of the final statement:

• apologise in writing to Mrs X for the faults we have identified;
• reimburse any costs Mrs X incurred (subject to appropriate receipts) in providing sensory support;
• for six terms of lost therapies, pay £1,500 which Mrs X should use for B’s educational benefit (£250 for each term);
• pay £1,000 for the delay in providing alternative, fulltime education, which Mrs X should use for B’s educational benefit; and
• pay £500 to Mrs X for the avoidable distress caused to her.

65. In respect of service improvements, the Council has agreed that, within three months of the final statement;

• it will review its commissioning of alternative education providers so that pupils out of school can receive the same education as their peers in school. The Council has already started to do this; and
• it will review its commissioning of OTs and SALTs. The Council has already started this process.

66. The Council should provide us with evidence it has complied with the above actions and with evidence of its service improvements.

Back to top

Final decision

67. I find the Council at fault causing injustice for the reasons provided. The Council has agreed the remedy, so I am closing the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman