Summary: Mrs X complained the Council failed to ensure her son, F received an education and provision in line with his Education, Health and Care plan when he stopped attending school between November 2022 and July 2023. She also complained about delays in the annual review process. The Council failed to put in place alternative provision for F between November 2022 and March 2023. It also delayed issuing F’s amended plan following an annual review. The Council agreed to make payments to acknowledge F’s loss of education and the distress and time and trouble caused to Mrs X.

The complaint

1. Mrs X complained the Council failed to put in place alternative provision in line with her son, F’s Education, Health and Care (EHC) plan between November 2022 and July 2023 when he stopped attending his school because it could no longer meet his needs.
2. Mrs X also complained the Council delayed holding an annual review following tribunal orders to do so. She said the Council then delayed issuing a final amended EHC plan.
3. Mrs X says F had no education during that period other than that privately funded by her. She said the delay in issuing the final plan delayed her appeal rights to the SEND tribunal and leaves uncertainty around whether F will have a suitable education in place for the 2023/24 academic year.

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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 spoke to Mrs X and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

10. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. 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
13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
14. Councils must, send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent.
15. 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.

What happened

16. Mrs X has a child, F who in 2022 was in his final year at primary school, due to transition to secondary school in September 2022. F has autism and social emotional needs. He has an EHC plan.
17. The Council issued a final EHC plan for F in February 2022 which named a mainstream secondary school from September 2022 onwards. Section F of the EHC plan outlined the support F was entitled to while at school. This included:
• A carefully planned transition to secondary school.
• Specific help from staff.
• Play therapy sessions once per week.
• Sensory interventions.
• Funding equivalent to 25 hours per week to help F access the curriculum and address his special educational needs (SEN).
18. Mrs X appealed F’s EHC plan to the SEND tribunal. The tribunal issued a consent order which outlined that Mrs X and the Council had agreed a way forward. The consent order told the Council to:
• Obtain an up to date Education Psychologist (EP) report so F’s provision in sections B and F could be accurately recorded.
• Obtain a report from children and adolescent mental health service (CAMHS) ahead of an annual review in December 2022.
• Complete an annual review of F’s EHC plan by 15 December 2022.
• Continue working with F to help him transition to secondary school with support from the SEN officer at the school.
19. Records show F started secondary school in September 2022 however he struggled. In early November 2022 Mrs X told the Council F was out of school due to illness and that the school had said it could not meet F’s needs. Mrs X asked the Council to put some alternative education in place for F pending the annual review in December. Mrs X sent a further email to the Council two weeks later reiterating her request, explaining F was too unwell to attend school which was supported by his doctor. The Council told us it passed the matter to its SEN officer in December, for discussion at the forthcoming annual review meeting.
20. The annual review took place on 9 January 2023, three weeks later than stipulated on the tribunal consent order. Records of the annual review show F’s school confirmed it could not meet his needs and he was unable to access any provision. It showed Mrs X had requested a specialist placement for F and asked the Council to take this to the SEN panel for a decision.
21. The Council told us it discussed alternative provision for F at the meeting, including tuition at home and using an external organisation (provider A) which provided specialist therapeutic support. There is no record of this discussion at the annual review.
22. At the start of February 2023 Mrs X complained to the Council. She complained the Council delayed holding the annual review and it had not made a decision about whether it was amending F’s EHC plan. She said F was still without any education or provision in line with his plan.
23. The Council responded in mid-February. It acknowledged and apologised for delays in the annual review process. It said an amendment notice had now been issued and consideration of a special school for F was ongoing. The Council said it had asked F’s school to secure alternative provision and would continue to liaise with it over this.
24. Records show the Council chased alternative provision for F with his school at the end of February. The school responded and told the Council Mrs X was reluctant to look into alternative provision, preferring to wait until the outcome of the panel’s decision around a specialist placement for F.
25. Mrs X escalated her complaint to stage 2 of the complaint procedure. She said the Council had failed to produce a draft EHC plan within timescales and F was still without any education or provision in line with his EHC plan. The Council responded in early March. It apologised again for the delay in the annual review process. It said it would ensure F’s draft EHC plan was issued as priority. It said it was not aware of F’s non-attendance until December 2022. The Council said its understanding was Mrs X had declined alternative provision. Records show a hospital school had also declined a referral for F. The Council said it had sent consultations to various placements to explore a special school placement for F.
26. The Council issued F’s draft EHC plan on 8 March 2023. Section I was left blank.
27. Following this Mrs X wrote to the Council again about alternative provision for F. Mrs X said she has had no communication from anybody about education for F other than a discussion about provider A. She said both the SENCO and CAMHS viewed this as unsuitable as it would not provide the curriculum or provision in line with his plan. Mrs X said she had now commissioned her own provision for F at provider B at a cost of over £300 per month. She asked the Council to reimburse her for this.
28. The Council responded to Mrs X and said it would ask its complex case panel to consider reimbursing her for the cost of provider B. It said again that its understanding was Mrs X had declined offers of tuition and access to provider A. Mrs X disputes this was the case, explaining both providers offered had told her they could not meet F’s needs.
29. Mrs X emailed the Council again. She disputed she had declined an offer of alternative provision stating no online tuition was ever discussed with her.
30. Between March and May 2023 F continued receiving an education via provider B which Mrs X funded. The Council completed F’s final amended EHC plan on 19 May 2023 which named F’s current mainstream school in section I.
31. Mrs X contacted the Council again and said none of the specialist placements had received any consultations from the Council. Mrs X also chased a decision around whether the Council would reimburse the costs of provider B.
32. The Council responded in early June 2023 and said consultations were supposed to go out at the end of March but were not progressed until the end of May. It apologised. The Council confirmed it had secured funding for F to remain at provider B however he would stay on roll at his mainstream secondary school as named in the plan. It suggested Mrs X appeal to the SEND tribunal if she remained unhappy.
33. Mrs X remained unhappy and complained to us. Mrs X confirmed F’s school had reimbursed her for the fees she paid at provider B from March 2023 onwards.

My findings

34. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The SEND tribunal issued a consent order in 2022 which ordered the Council to hold an annual review by 15 December 2022. This being the case, the Council should have subsequently issued F’s final amended EHC plan by 9 March 2023. The Council did not hold the annual review until 9 January 2023 and did not issued F’s final EHC plan until 19 May. Both of which is fault.
35. The Council has accepted this delay was fault, blaming unprecedented demand on its SEND services. It has offered to pay Mrs X £200 to acknowledge the distress and frustration caused by the delay. This is appropriate and in line with our guidance.
36. Records show the Council was aware from early November that F was not attending his school. However, it only passed the matter to the SEN officer in December and there is no evidence it took, or considered what action to take until the annual review in January. That was fault.
37. Records of the annual review show F’s school had said it could no longer meet his needs. Therefore, at this point F was without a suitable school placement and it was the Council’s legal duty to ensure he received provision in line with his EHC plan. The Council say Mrs X declined offers of alternative provision, however I have not seen evidence showing this. Instead email records show Mrs X consistently chasing the Council to put provision in place, specifically stating she had not declined tuition. The failure to put in place suitable provision for F between November 2022 and March 2023 when he could not attend the named school was fault.
38. Following the annual review in January 2023, the Council agreed to consult with alternative specialist placements for F. However, it did not do so until May 2023, after it issued the amend final EHC plan. The delay in doing so was fault. The Council has not explained the reason for the delay, which caused Mrs X frustration. However, three of the four school said they could not meet F’s needs and Mrs X declined the school that said it could, so I find there was no significant injustice other than frustration.
39. Mrs X commissioned her own provision for F at provider B from March 2023 onwards. Mrs X has now been reimbursed for these fees which is appropriate.
40. F was without a suitable education in line with his EHC plan between November 2022 and March 2023. I have made a recommendation below to remedy this injustice to F. From March 2023 onwards F received provision from provider B which the Council continues to fund which meant F’s injustice ended at this point. The faults above have caused Mrs X distress, frustration and time and trouble.
41. The Council has now issued F’s final EHC plan. If Mrs X is unhappy with the provision or the named placement, then she has the right to mediation and appeal rights to the SEND tribunal.

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Agreed action

42. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X for the distress, frustration and time and trouble caused by the faults identified above.
2. Pay Mrs X £200 to recognise the frustration caused by the delay in issuing F’s amended EHC plan following the annual review in January 2023.
3. Pay Mrs X £150 to recognise the distress, frustration and time and trouble caused to her by the Council’s failure to put in place alternative provision for F between November 2022 and March 2023.
4. Pay Mrs X £1,000 to acknowledge F’s loss of education and loss of provision in line with his EHC plan between November 2022 and March 2023.
5. Remind relevant SEND staff of the duty to consider alternative provision in line with statutory guidance once it becomes aware a child is not attending school.
6. Explain to us what action it has taken or intends to take to reduce delays in issuing amended EHC plans following annual reviews.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman