Summary: Mrs X complains the Council has failed to provide Child Y with education and delayed the annual review of their EHCP. This resulted in Child Y being without their alternative provision and the EHCP did not meet their needs. The Ombudsman finds fault with the Council for failing to provide alternative provision and delaying the EHCP review. The Council has agreed to pay a financial remedy for the missed provision and distress caused.

The complaint

1. Mrs X complains the Council has

• failed to provide her son with education since November 2021,
• failed to meet statutory deadlines in reviewing his Education, Health and Care plan,
• failed to carry out reviews that meet the code of practice requirements,
• failed to ensure parents take part in the reviews,
• Failed to circulate reports before the review,
• failed to provide bespoke provision it agreed,
• failed to provide tutors as agreed,
• failed to respond timely to complaints, and
• failed to have regard for his education and wellbeing.

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The Ombudsman’s role and powers

2. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
4. 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).
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. 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)
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.

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What I have and have not investigated

8. Part of Mrs X’s complaint is about issues dating back to November 2021. As set out in paragraph three, the Ombudsman will only exercise discretion to consider issues later than 12 months where there is good reason to.
9. If Mrs X was unhappy with the Council’s actions between November 2021 and August 2022, I consider that she could have come to us sooner. I have not seen any good reason to exercise discretion for this part of the complaint. I will therefore only consider issues dating from September 2022.

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How I considered this complaint

10. I considered Mrs X’s complaint and information she provided. I also considered information from the Council.
11. I considered comments from Mrs X and the Council on a draft of my decision.

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What I found

Legislation and guidance

Education, Health and Care Plans

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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

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.

Reviewing an EHC plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. 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.

Alternative provision

19. 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.
20. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.

What happened

22. Mrs X has a child, Child Y, with several special educational needs. They have an EHCP maintained by the Council.
23. In August 2022 the Council wrote to Mrs X advising it had found a school place for Child Y from September 2022. Mrs X did not agree with the proposed school. Child Y was already out of school at this point and receiving alternative provision in the form of tuition. The Council accepted Mrs X’s reasoning for this and agreed to maintain the tuition provision from September 2022.
24. Between September 2022 and October 2022, the Council tried to restart the tuition service that had previously been in place for Child Y. It agreed tuition on 24th October 2022 and the tuition started in November 2022.
25. The Council issued an EHCP naming a school placement on 14th February 2023. The placement was to be from September 2023. Tuition was to continue until September 2023. Mrs X told the Council she was not happy with the named placement on 16th February 2023.
26. The arrangement with the tuition service and Child Y broke down in March 2023 and Mrs X asked the Council to provide an alternative tutor. The Council asked its tuition services to provide an alternative, but it could not do so at this time. The Council sought other tuition providers but was not successful with securing further tuition for Child Y.
27. In June 2023, Mrs X asked the Council for a new EHC Coordinator for Child Y. The Council appointed a new coordinator in July 2023, and the annual review for Child Y’s EHCP was arranged for September 2023.
28. The Council issued a draft amended EHCP on 13th September 2023, following the Annual review.
29. In October 2023, the EHC Coordinator sought a reassessment for Child Y. They also consulted with further schools for Child Y.
30. In November 2023, the Council issued an amended draft EHCP to Mrs X.
31. In December 2023, the Council told Mrs X the request for reassessment had been declined. It issued a final EHCP naming a school placement for Child Y. It also contacted it tuition providers again and arranged with its tuition service that tuition be in place until Child Y could start at the named school.

Complaint handling

32. Mrs X made several complaints to the Council about the EHC review process, naming a suitable placement, and alternative provision for Child Y.
33. In summary, Mrs X’s complaints covered that:

• She was unhappy with the change in EHC coordinator.
• She was unhappy with the Council’s actions in consultation with schools and communication with her about this.
• The Council had not carried out the annual review when it said it would.
• The Council had not properly consulted with schools for Child Y and had not considered information she provided when writing the EHCP.
• The tuition service had not been able to meet Child Y’s needs.
• The Council had failed to provide Child Y with suitable education.
• The alternative provision given had not been consistent.
• Her child was currently without education or alternative provision.

34. The Council’s responses to Mrs X said:

• The paperwork for the consultation was insufficient, and it had reminded staff about this, but it did not change the outcomes as the preferred schools were still not able to provide a place.
• The Council was working on securing a school place, and that tuition would continue in the interim.
• There had been times when communication had been delayed and decisions had not been fully explained.
• The Council had obtained a school for September 2023.
• Mrs X had appeal rights to tribunal if she wanted to appeal the named placement.
• Some communication was not sent and meetings were not held when they were proposed.
• The Council had arranged an annual review to take place.
• It had tried to obtain tuition for Child Y but had been unable to do.

Analysis

Education from September 2022 until September 2023

35. The Council says it found a school for Child Y in August 2022 but Mrs X did not agree with it. Consequently, the Council arranged for the tuition that Child Y was previously accessing to continue in the interim.
36. The Council had accepted Mrs X’s reasons for not agreeing the proposed school place and accepted a duty to provide alternative provision to Child Y until a suitable school place was found. Therefore, any time that Child Y was without alternative provision was fault by the Council. I accept the Council took reasonable steps to find an alternative tuition service, and therefore the delay in arranging this from March 2022 was service failure by the Council. However, this still caused Child Y injustice as they were without their EHCP provision or alternative provision. The Council should therefore pay a remedy for the time Child Y was without alternative provision because of fault or service failure.
37. Part of Mrs X’s complaint is the tuition service provided did not meet Child Y’s specific special educational needs. It would have been reasonable for Mrs X to raise this with the Council if she felt tuition was unsuitable. From the timeline provided, I can see Mrs X agreed with the Council in August 2022 to keep the previous tuition in place. The Council would have had no reason to believe the alternative provision was not suitable until the placement broken down in March 2023.
38. Mrs X says she did not tell the Council the alternative provision was unsuitable because she had been told the Council was arranging a bespoke education package for Child Y. The Council initially told Mrs X it would consider her request for a bespoke package. In September 2023, it apologised to Mrs X for not considering her request for a bespoke package, but said the package was not needed as Child Y had alternative provision and a personal budget had also been granted.
39. The Council has already identified that it should have considered the request and apologised for not doing so. Child Y was not caused injustice as they had alternative provision and a personal budget in place. I agree with the Council’s findings, and I remain of the view that if Mrs X was unhappy with the alternative provision being delivered, it would have been reasonable for her to raise this with the Council.

School from September 2023

40. Part of Mrs X’s complaint is about the EHC review process and the consultation for the Council naming a placement. Mrs X was unhappy with the information in the February 2023 EHCP and she says this led to the Council naming an unsuitable placement for Child Y as it had not considered relevant information.
41. The Council issued an EHCP naming a placement in February 2023. If Mrs X was unhappy with the named placement or the information included in the EHCP, she could have appealed this at tribunal. The Council told Mrs X about her appeal rights and advised that if she was unhappy, she could appeal.
42. Any investigation about the Council’s consultation process and how it decided which placement to name is closely linked to the outcome, which is the naming of placement. I cannot consider complaints about issues that are too closely linked to matters which can be appealed about. I am therefore not considering issues linked to the Council’s naming of a placement from September 2023 or issues arising about placement following this.
43. Additionally, I cannot consider complaints about the content of an EHCP and what information has been included or not included. This is because Mrs X has a right of appeal about the content of an EHCP to the tribunal. I am therefore not considering issues arising from the content of the EHCP.

Annual review timelines

44. Part of Mrs X’s complaint is the Council delayed reviewing the EHCP.
45. The EHCP was reviewed in April 2022, and in September 2023. Councils have a duty to review EHCP’s yearly. There was a delay in the Council reviewing the EHCP, however, the outcome of the EHCP was to name a placement that Mrs X was unhappy with, for which she had appeal rights to tribunal. However, I accept there was some distress and uncertainty caused to Mrs X by the delay.

Further considerations

46. The Council’s complaint handling response upheld there had been poor communication between the Council and there were times when meetings did not go ahead, and decisions were not explained to Mrs X. This was fault by the Council, which it has recognised. However, it has failed to consider any injustice to Mrs X because of the fault and has not given consideration of the Ombudsman’s guidance on remedies for the fault. Therefore, the Council should provide a remedy for the fault identified.

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Agreed action

47. Within four weeks the Council has agreed to

• Write to Mrs X and apologise for the fault identified.
• Pay Child Y £3600 in recognition of injustice caused because of the loss of alternative provision. This is calculated at £1200 for September to November 2022 and £2400 for the April to July 2023.
• Pay Mrs X £300 in recognition of the distress caused by the poor communication and delay in the annual review.
• Remind complaint handling staff that where fault has been identified, the Council should consider whether the fault has caused injustice and refer to the Ombudsman’s guidance on remedies when considering any remedies.

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

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Final decision

49. I have completed my investigation. I find fault with the Council for failing to secure alternative provision for Child Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman