Summary: Ms X complained the Council took her son, Z, off roll at his school despite failing to arrange any alternative provision for him. Ms X also said the Council’s communication with her was poor. The Council was at fault. This fault caused Ms X and Z a period of distress and significant uncertainty regarding whether Z could have had a better educational experience than he did between July 2022 and May 2023. In recognition of the injustice caused, the Council has agreed to apologise, pay Ms X and Z £600 and carry out service improvements.

The complaint

1. Ms X complained the Council:
1. wrongly asked her son’s school to take him off-roll before it had put in place any alternative provision;
2. failed to put in place alternative education for her son as agreed during his July 2022 annual review;
3. failed to follow the correct Education, Health and Care Plan processes following Z’s July 2022 annual review; and
4. communicated with her poorly regarding setting up an Education Otherwise Than At School (EOTAS) package.
2. Ms X said this led to her son not having the EOTAS package he needed in time for school beginning in September 2023 and caused them both uncertainty and distress.

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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. 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.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

9. I considered the information provided by Ms X and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

EHC plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. Councils are 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.

Annual review timescales

14. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC plans must be reviewed as a minimum every 12 months. The first stage of the annual review is a review meeting, usually held by the child’s school on behalf of the council;
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting;
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and its proposed amendments within four weeks of the annual review meeting;
• councils must issue the amended final EHC plan within eight weeks of the date it sent the amendment notice. The whole process from the annual review meeting to issuing the final EHC Plan should take no longer than twelve weeks.

Alternative provision

15. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Education Other Than At School (EOTAS)

16. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement.

What happened

Background

17. Z has a neurodevelopmental condition as well as anxiety and other associated conditions. Z was of secondary school age during this complaint period.
18. Before the events below, Z’s most recent EHC Plan named a specialist school, School A.

Key events

19. The Council held an early annual review of Z’s EHC Plan in early July 2022. The annual review noted that over the Easter holidays, a mental health team carried out an emergency assessment of Z’s mental health and found he was experiencing distress mostly linked to attending School A. School A and the Council agreed at the annual review that Z’s needs had changed and an EOTAS package may better suit Z.
20. Under agreed outcomes, the annual review paperwork said the Council would seek tutors in English and maths for Z and he should come off roll at School A at the end of that academic year (in around a week’s time). It said in the meantime, Ms X should put forward a proposed EOTAS package for her son to the Council’s SEND officer.
21. The Council took no action following the annual review to put in place the English and maths tutors as agreed. However in mid-July the Council told School A to take Z off the school’s roll at the end of term.
22. Ms X told the SEND officer she was concerned by this. She said her understanding from the review meeting was that Z would stay on roll at the school until an EOTAS package was put in place.
23. Ms X sent the SEND officer a list of her preferred EOTAS provisions for Z, as requested. However she also asked for guidance to understand the EOTAS process as she had been tasked with producing a package for Z but had not done this before. The SEND officer did not respond.
24. The SEND officer sent an email to Ms X a week later asking her to sign a document agreeing to a personal budget of £5,600 for Z’s education. Ms X responded to ask for clarification around what the personal budget would be expected to cover. The SEND officer did not respond.
25. By 3 August 2022, the Council should have informed Ms X whether it had decided to amend Z’s EHC Plan following the July annual review and if so, it should have sent Ms X a copy of the draft version for her comments.
26. The Council wrote to Ms X in early August 2022 to say it intended to amend Z’s EHC Plan. However it did not include a draft version for her comments until several months later.
27. By the end of August the Council had taken no steps to arrange any EOTAS provision for Z, or provided Ms X with any of the support and information she requested. Instead in August, Ms X arranged to visit a specialist post-16 provision, School B, and asked the Council to consult it. The Council consulted School B and Z started there in September 2023 on reduced hours.
28. By mid-October 2022, Z stopped attending School B. Ms X said the school proved unsuitable for Z and the experience was emotionally damaging for him.
29. In early November, the Council finalised Z’s EHC Plan following the July annual review. The Council named School B in the EHC Plan. The Council told Ms X if she disagreed with the provision in the plan, she could use her right of appeal to the SEND Tribunal.
30. However a few weeks after Z’s November EHC Plan was issued, it was due for annual review again. Ms X decided not to appeal to the SEND Tribunal and to use the upcoming annual review process instead to request EOTAS for Z.
31. Following this annual review, Ms X put a detailed EOTAS proposal to the Council, setting out each type of provision that should be included and how it would meet the requirements of Z’s EHC Plan.
32. Several days later the SEND officer informed Ms X the panel had refused her EOTAS proposal and Z should remain at School B instead.
33. In late December 2022, the Council decided it would make some amendments to the Plan but would continue to name School B as Z’s education placement. It sent Ms X a draft Plan for her comments. Ms X told the Council she disagreed with the draft proposals.
34. On 5 Jan 2023 Ms X raised a stage one complaint to the Council about her experience with the Council’s SEND department.
35. Later that month, the Council told Ms X the SEND officer had given her incorrect information regarding the panel’s decision on EOTAS. A different SEND officer said its panel had not refused the EOTAS request. The panel had actually decided it could not say whether the EOTAS package was suitable yet because the most recent annual review process had not yet concluded and the Council had not yet re-consulted School B.
36. The Council responded to Ms X’s stage one complaint in February 2023. It upheld Ms X’s complaint that its communication with her had been poor in 2022 regarding setting up an EOTAS package. It also accepted that taking Z off roll at School A before any other provision had been put in place had caused her uncertainty. It apologised for this. Ms X was unhappy with this response and asked to go to stage two of the complaints process,
37. The following month the Council finalised Z’s EHC Plan. This had taken seventeen weeks following the November 2022 annual review. The Council named an EOTAS package in the Plan and the provision in the Plan was put in place in April 2023.
38. In June 2023, the Council upheld Ms X’s complaints at stage two and offered Z and Ms X £200 each to recognise the injustice caused to them by its faults.

My findings

July 2022 – November 2022

39. At the July 2022 annual review meeting, the Council agreed Z should no longer attend School A and needed alternative provision in the form of EOTAS and English and maths tutors. However, in the weeks following the meeting, the Council did not take steps to arrange EOTAS and failed to arrange the English or maths tutors it said it would at the annual review. This was fault.
40. The Council also accepted it should not have told School A to take Z off roll before it had any EOTAS in place. I agree that in this instance, doing so was fault as Z was left without an educational placement.
41. Z did not experience a loss of education during this period as the period from July to September was the school summer holidays. While the Council took no steps during the summer holidays to find alternative education for Z, Ms X found School B in August which the Council successfully consulted. In September Z began attending School B. However by mid-October, Z stopped attending School B.
42. The Council’s inaction in this case did not lead to a loss of education provision. However on the balance of probabilities, the only reason Z did not have a gap in his education was due to Ms X seeking a placement for Z herself. Ms X and Z have been caused distress and uncertainty about whether Z could have had a better experience with his education placement than he did, were it not for the Council’s fault.

November 2022 – April 2023

43. In November 2022 the Council finalised Z’s EHC Plan and named School B. However by this time Z had stopped attending and Ms X no longer wanted School B named in the Plan.
44. Ms X had a right of appeal to the SEND Tribunal from the date of the November 2022 final EHC Plan if she disagreed with the placement named. Ms X did not use this appeal right. Instead, due to the EHC Plan processes not running to time, another annual review was already scheduled for later that month and Ms X used the upcoming annual review instead to seek changes to the Plan.
45. Between mid-October 2022 and mid-April 2023 Z received no education at all as he stopped attending School B and the Council disagreed with Ms X that School B was unsuitable for him to attend. As a result it did not put in place any alternative provision during this time.
46. The question of whether the Council should have put alternative provision in place is linked to a matter on which Ms X had an appeal right – the suitability of School B. The law says we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter, provided it was reasonable for them to use this right.
47. I consider it was reasonable for Ms X to have appealed to the SEND Tribunal to resolve any disagreement over the suitability of School B being named in the Plan, because:
• the Council made Ms X aware of her appeal rights if she disagreed with the placement in Z’s EHC Plan; and
• during the period she could have appealed, there was clear disagreement between her and the Council over School B that was not at that time resolved.
48. For this reason, I have not come to a finding on, or remedied, this period where Z was without education.

Delays and poor communication

49. The Council’s delays and poor communication in this case - from July 2022 to April 2023 - caused Ms X and Z frustration, distress and uncertainty at an already difficult time for Z. These faults are set out in more detail below.
50. Following the annual reviews in July 2022 and November 2022, the Council should have issued its decision to amend, along with details of the proposed amendments within four weeks of the review meeting. It then should have issued the final, amended Plan within twelve weeks of the review meetings. The Council did not keep to timescales and instead took seventeen weeks in both cases. This was fault.
51. The Council’s communication with Ms X was also very poor in this case. Ms X asked the Council multiple times for advice regarding setting up an EOTAS package and for updates on Z’s case while Z had no education in place but the Council did not respond. The Council also wrongly told Ms X its panel had refused her EOTAS request when it had not.
52. I have recommended a financial remedy to recognise the impact of these faults.

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Agreed action

53. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X and Z for the injustices caused by the faults in this case;
2. Pay Ms X £400 and Z £200 in recognition of the distress, frustration and uncertainty they were caused by the Council’s faults. This is to replace the Council’s offer of £200 each, as I am not satisfied £200 each fully remedies the injustice caused.
54. Within three months of the date of the final decision, the Council has agreed to:
1. Remind its SEND staff that they must send their proposed changes to EHC plans for comments within four weeks of the annual review meeting;
2. Remind its SEND staff that EHC plans should be finalised within twelve weeks of annual review meetings;
3. Remind its SEND staff of the importance of carrying out the actions it says it will take following annual reviews; and
4. Remind its SEND staff that where parents need advice regarding processes that are new to them such as personal budgets and EOTAS, this advice should be provided to them.
55. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
56. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

57. I have completed my investigation. I have found fault leading to injustice and have recommended an apology, a financial remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman