Summary: We upheld this complaint. There was a delay of over a year in completing the annual review of Y’s Education, Health and Care Plan. The Council delayed organising any alternative provision and the provision it eventually put in place was minimal. As a result, Y was without suitable full-time educational provision between January 2022 and September 2023. The Council will apologise, issue an amendment notice and final plan and make payments set out in this statement.

The complaint

1. Mrs X complained the Council failed to secure a school place for her child Y who has an Education, Health and Care Plan (EHC Plan). Y has been out of full-time education since September 2021 and the alternative provision the Council arranged while it looked for a placement was inadequate.
2. Mrs X said the Council’s failings caused avoidable distress and a loss of education.

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The Ombudsman’s role and powers

3. 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)
4. Ms X complained to us in April 2023 so events before April 2022 are late. However, they are a continuing chain of events with ongoing injustice, so I have investigated from September 2021 to April 2023.
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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 complaint to us, the Council’s response and documents described in this statement. I discussed the complaint with Mrs X.
10. 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

Relevant law and guidance

11. 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. The EHC plan is set out in sections including F (special educational provision) and I (placement.)
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC plan (Children and Families Act 2014, section 42).
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

17. Where the council proposes to amend an EHC Plan, 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). Case law sets out this should happen within four weeks of the date of the review meeting.

Summary of key events

18. Y is in Year 5 now. He has emotional and behavioural difficulties and complex SEN.

2021

19. The Council issued Y’s final EHC Plan on 30 September 2021. It named School A, a special school, as Y’s placement.
20. School A held an emergency annual review meeting on 26 November 2021. It said no changes were needed to Section F of Y’s EHC Plan, but that the current placement was not appropriate. No reasons were given.

2022

21. There was a second emergency annual review meeting on 26 January 2022. The school said it could no longer meet Y’s needs and said on the annual review form that it would not provide further work for Y from the date of the review. Attendees agreed Y needed a residential placement.
22. The Council told me it made some referrals for alternative provision but some did not proceed due to lack of availability. It referred Y to an adventure playground which also had no spaces. A space came up and he attended every week on a Friday from the first week in June.
23. The Council told me its SEND and social care teams did not initially agree that mentoring would be a good fit for Y. The mentoring service accepted a referral at the end of July. Mentoring found a worker in the middle of October and offered two three hourly sessions a week. This started in November, but the mentoring service cancelled by the middle of November after a few sessions because Y threatened the mentor.
24. Emails, correspondence and case notes from the Council’s SEND and social care teams show the SEND Team secured a placement at Placement B at the start of September, but the costs were never agreed. The costs for a 52-week residential placement were over £200,000 a year.
25. Emails between the mentoring service and the SEND Team indicate the Council arranged an additional three hourly session of mentoring in April 2023. Y was said to be attending ‘other provision’ on Monday and Friday (the adventure playground.)

2023

26. Ms X complained to the Council in January 2023. Its response said:
• It consulted five schools between April and July 2022. They all declined to offer Y a place;
• It consulted five more in July and they either said no or did not respond;
• It consulted five more in November/December, the responses were negative or no response;
• It had sent two further consultations and was working to find Y a residential school in line with her request;
• Placement B offered a place in September. The Council asked for a detailed breakdown of costs and provision and received this in the last week of September. It had further queries about provision and a further costs breakdown on 5 October. The company said on 10 October that there was no longer a place.
• Placement C met with her and decided not to offer a place;
• Mentoring and the adventure playground were secured. Mentoring suggested two mentors and the Council agreed to fund this. The Council recognised Y needed more interim support.
27. There was a meeting about Y in January 2023 with Mrs X and professionals. The minutes noted two-to-one mentoring was agreed; two schools had been consulted placements D and E and a further placement (F) was being considered. Mrs X said Y’s youngest brother has moved to his dad’s as she was concerned about Y targeting him. Mrs X said her mental health was affected by the stress.
28. The Council issued an amendment notice on 16 February 2023. It had minor changes proposed to Section F and Section I named a type of placement (special school) but did not name a specific placement. The Council issued a final EHC Plan on 2 March 2023. This included the changes described in the amendment notice.
29. Mrs X complained to us in April 2023. We said her complaint was too soon and she needed to use the second stage of the Council’s complaint procedure. She tried to, but the Council said it was outside the 20-day timeframe and referred her back to us.
30. The Council agreed two mentors for Y from April 2023. They were in place for the summer term of 2023.
31. The Council told us Y had a temporary residential placement with education from September 2023 to support his re-engagement with education while the Council finds a permanent setting. The Council summarised Y’s current provision:

“Y is attending the education setting 5 days per week 9:30-2:30/3 every day with the curriculum broken down into academic subjects i.e. phonics, reading, writing & mathematics in the morning with more holistic offsite activities in the afternoon. In the classroom Y is currently working 1:1 and on his own due to transition with the aim that he will develop peer relationships however this has been difficult for him so far. The school has 4 members of staff current: 3 qualified teachers along with a HLTA. Half of the staff in the home/ school have received PACE training but the aim is that by the end of the year all staff in both settings with be attachment and PACE trained.”

(PACE stands for playfulness, acceptance, curiosity and empathy. It is a therapeutic approach for professionals working with children who have experienced trauma)

32. Mrs X told us she was happy Y was back in education, but unhappy because Y’s placement was a long way from her.

Findings

33. The Council should have completed the annual review process following the annual review meetings in November 2021 and January 2022 and issued a decision to amend, amendment notice and a final amended EHC plan. It delayed by over a year in doing so. This was not in line with the law and guidance described in paragraphs 15 to 17 and was fault. It caused avoidable uncertainty because Y’s placement had broken down and Mrs X did not know where she stood. She had no right of appeal to the SEND Tribunal because the Council did not complete the process by issuing a written decision to maintain or amend Y’s EHC Plan.
34. The Council is under a duty to secure provision in an EHC Plan. The Plan of September 2021 set out provision based in a school. However, Y had no placement or provision from January 2022 because School A ceased providing him with a placement and told the Council so in the annual review record in January 2022. We do not expect councils to keep a watching brief, but the Council knew the placement had broken down as this was stated in the minutes of the annual review meeting. Yet the Council made no alternative arrangements. The Council was consulting with many schools with the aim of securing a residential placement for Y. This took from January 2022 to September 2023. But Y was still entitled under Section 42 of the Children and Families Act 2014 to the special educational provision on his EHC Plan and he didn’t get it. This was fault.
35. The Council took from January 2022 to November 2022 to put in place any educational provision for Y (mentoring) and that provision broke down straight away. It did not re-start until the summer term of 2023 and then was only for two or three half day sessions a week. The adventure playground was more of an enrichment provision rather than education. There is no evidence Y had any significant special educational provision in line with his EHC Plan from January 2022 to September 2023 when the Council secured a residential placement for him. He missed out on five terms of education.

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Agreed action

36. Within one month of my final decision, the Council will:
1. Apologise for the fault and injustice described in this statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Issue a further amendment notice setting out the current special educational provision and placement. And then issue a final amended EHC Plan within the required timescales. This will give rights of appeal to the tribunal if Mrs X disagrees with the current provision and/or placement;
3. Make Y a payment of £12,000. This is at the highest end of our published Guidance on Remedies. It reflects the severity and complexity of Y’s SEN, the lack of support during the period he was out of education, the loss of right of appeal to the tribunal; and
4. Make Ms X a payment of £1000 to reflect the avoidable distress and uncertainty. I have taken into account the case records state Ms X was suffering from poor mental health due to the pressures of having Y, who has serious behavioural problems, at home.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. We uphold this complaint. There was a delay of over a year in completing the annual review of Y’s Education, Health and Care Plan. The Council delayed organising any alternative provision and the provision it eventually put in place was minimal. As a result, Y was without any educational provision between January 2022 and September 2023. The Council will apologise, issue an amendment notice and final plan and make payments set out in this statement.
39. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman