Summary: We uphold Ms X’s complaint about delay in amending her son Y’s Education, Health and Care plan, delay in considering her request for education other than at school and a failure to provide alternative provision. This caused avoidable distress, a delay in appeal rights and a loss of suitable education. The Council has agreed an apology and payments to remedy the injustice.

The complaint

1. Ms X complained:
1. There was a delay completing the process of amending Y’s EHC plan after an annual review meeting in March 2023;
2. Y’s school placement broke down at the same time as the review meeting and the Council failed to provide alternative provision (AP) or consider her proposal for education other than at school (EOTAS).
2. Ms X said this meant she had to give up her part time work. She said at the time of her complaint to us, Y was only getting around eight hours of educational provision each month.

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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 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan or the provision, we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

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What I have and have not investigated

7. The timeframe for my investigation is between March 2023 and 13 September 2023. Information before and after is for context and background only. I have not investigated after 13 September (the date her appeal rights were engaged) because Ms X has appealed to the SEND tribunal. The legal case I have set out in paragraph six applies. This means we cannot investigate the lack of provision after 13 September because Ms X’s appeal is about the placement in Section I and educational provision in Section F.

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How I considered this complaint

8. I considered Ms X’s complaint to us, the Council’s response to her complaint and documents in this statement. I discussed the complaint with Ms X
9. Ms 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

10. 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 ‘the Section 19 duty’ or ‘alternative provision’ (AP).
11. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
12. We made recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

13. 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 (F), or name a different school (I). Only the tribunal can do this.

14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. (Children and Families Act 2014, section 42)

15. The procedure for reviewing and amending EHC plans is set out in law and government guidance:
1. 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)
2. 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)
3. 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)
16. 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.
17. For some children, education in any setting may not be appropriate due to their SEN. This is referred to as “education other than at school” or EOTAS. If it agrees with the parent, the Council can arrange for special educational provision to be delivered elsewhere and the provision will be set out on their EHC plan. Section I of the EHC plan is left blank if no setting is going to be attended.
18. Normally, a council provides funding to a school for them to deliver the provision on an EHC plan. A council can also make a direct payment to the parent to organise provision set out in Section F of the EHC plan.
19. A personal budget is money identified by a council to deliver provision in an EHC plan where the parent is involved in securing the provision (SEN Code, paragraph 9.95.) Councils are under a duty to prepare a budget when requested (Paragraph 9.97). Parents can request one during an annual review (Paragraph 9.98.) A personal budget can be taken as a direct payment where a parent receives cash to contract purchase and manage services themselves (Paragraph 9.101)

What happened

Background to key events

20. Y, aged seven, has autism, learning disabilities and has an EHC plan. The plan of November 2022 named a mainstream primary school. Y was educated in the year below his age group. The plan set out the special educational provision Y was entitled to which included 32.5 hours a week (full-time) support of a trained Learning Support Assistant (LSA). There was also similar occupational therapy (OT) and speech and language therapy (SALT) provision as on the current plan (see paragraph 31, below).

Key events

21. There was an emergency annual review meeting at the end of March because Y’s school placement was breaking down. An officer from the Council’s family services department attended the meeting as well as Mrs X and staff from school. The report of the review said Y’s school was of the view no mainstream setting could meet his needs and he required a specialist placement. The report went on to say Y was not safe in school, he was running around, removing his clothes, climbing and urinating around the grounds. He needed two staff to support him and this was not sustainable. Specialist school placements had been consulted and had responded. The family wanted a specialist placement from September 2023 or if this could not be found they wanted EOTAS or part-time school/part-time EOTAS. School asked the Council to find a specialist placement urgently.
22. Y stopped attending school at the end of March. The records indicate the Council was aware of this at the time. It had received the minutes of the annual review meeting (see previous paragraph) as well as emails from Mrs X and so it knew of the serious behavioural issues.
23. Ms X requested an EOTAS package in April. She sent the Council a detailed sample timetable with costings setting out the education provision including one-to-one sessions with a tutor consisting of:
• Applied behavioural analysis;
• Literacy, communication and social skills, numeracy;
• Speech and Language Therapy (SALT), Occupational Therapy (OT);
• Swimming; and
• Gym.
24. Ms X complained to the Council at the end of June. She said Y’s annual review meeting took place at the end of March, but she hadn’t had a decision on whether the Council was maintaining, amending or ceasing to maintain Y’s EHC plan.
25. Ms X emailed the complaints team in July. She said Y was only getting one hour a week of SLT and one hour a week of OT.
26. The Council responded to Ms X’s complaint on 1 August saying:
• It was sorry she had not received a draft EHC plan; it accepted the timescales had been breached and this happened because the case worker left. Y had now got a new case worker who would issue a draft plan no later than 2 August; and
• Senior management were considering her request for EOTAS.
27. Council issued a draft EHC plan dated the end of July. It appears Ms X received this at the start of August.
28. Ms X escalated her complaint. She said the Council should not have named the school in the draft plan as he could not go back there and asked the Council to name a special school or leave it blank and approve EOTAS in the interim.
29. The Council’s further complaint response of 25 August said:
• Ms X had received Y’s draft plan;
• It agreed it was not appropriate for Y to return to the school;
• Consultations had been sent to specialist schools, but there was no offer;
• The Council has a duty to provide education and it will arrange a bespoke programme until a placement is available;
• It agreed there has been unreasonable delay in considering her proposal for education arrangements and was sorry. This was due to staff absence in the relevant team;
• It will refer Y to tuition providers before 29 August so to try and start tuition as close to the start of term as possible; and
• Regarding her preference for Applied Behavioural Analysis (ABA); the panel considered this. The Council considered ABA is not required to meet Y’s educational needs and so does not agree to fund ABA specifically. It will fund OT and SLT as set out on the plan alongside a Personal Budget for enrichment activities set out in her proposal.
30. An email from Ms X to the Council in September said she had contacted the tuition providers on a list the Council gave her and there was either no response, no availability or the Council needed to do a referral. She went on to say the new case co-ordinator had made referrals to three providers. She asked the Council to issue Y’s final plan.
31. On 13 September, the Council issued the final EHC plan. I have summarised the special educational provision in Section F below:
• Input from a specialist ASD teacher;
• Input from a qualified SLT to devise a programme;
• Daily practice of SLT targets with a trained LSA;
• Input from an OT;
• Daily sensory circuits and completion of an OT skills programme with an LSA; and
• A programme of education of 15 hours a week of education other than at school (EOTAS) that is gradual and focuses on personal development and education.
32. There is no placement named in Section I. Section J sets out the personal budget and yearly direct payment funding the Council has agreed for educational provision including swimming, gymnastics and theatre.
33. The Council’s final response to the complaint in September said the SEND team would organise SLT and OT as per the plan. It would not address the complaint further because she had appealed to the SEND Tribunal.
34. Unhappy with the response, Ms X complained to us in October 2023.

Findings

There was a delay completing the process of amending Y’s EHC plan after an annual review meeting in March 2023

35. There was a delay in completing the process of amending Y’s EHC plan following the annual review meeting. The Council should have completed the process within 12 weeks of the review meeting so by the end of June to comply with the statutory timeframe summarised in paragraph 15. The delay of two and a half months was fault which delayed Ms X’s appeal rights, causing avoidable distress.
36. The Council accepts in its complaint response that it delayed considering Ms X’s request for EOTAS in April 2023. The Council’s funding panel did not deal with the request until August. The delay was fault which added to the delay in issuing Y’s final ECH plan causing avoidable distress and inconvenience.

Y’s school placement broke down at the end of March 2023 (two days after the review meeting) and the Council failed to provide alternative provision (AP) or consider their proposal for education other than at school (EOTAS) made in May 2023.

37. The Council was aware Y’s school was not meeting his educational needs and the placement was breaking down, because the school said so in the report of the review meeting and a council officer attended the review. The Council was at fault because it failed to consider its duty under Section 19 of the Education Act 1996 (failed to consider arranging suitable AP on the grounds that Y was absent from school for other reasons).
38. The Council also had to secure the provision on Y’s EHC plan of November 2022 to be in line with the duty in Section 42 of the Children and Families Act 2014. It failed to do once the placement at school broke down and this was fault. We recognise councils cannot be expected to keep a watching brief on whether schools are delivering all the provision for every pupil with an EHC plan. But in this case, the Council was aware the school was not delivering provision by March 2023 because the school sent it a report of the annual review meeting which explained it could not keep Y safe.

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Agreed action

39. The Council will, within one month of my final decision:
• Apologise to Ms X for the avoidable distress and inconvenience caused by the delay in issuing the final EHC plan after the annual review and consequent delay in appeal rights;
• Make her a payment of £250 to reflect the above; and
• Make Y a payment of £2200 to reflect the failure to consider the duty to secure AP for the summer term of 2023 and to secure most of the special educational provision on Y’s EHC plan of November 2022. This is in line with our published guidance on remedies and reflects Y had no tuition or specialist educational support in place other than a small number of hours of OT and SLT.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. We uphold Ms X’s complaint about delay in amending her son Y’s Education, Health and Care plan, delay in considering her request for education other than at school and a failure to provide alternative provision. This caused avoidable distress, a delay in appeal rights and a loss of suitable education. The Council will apologise and make payments to remedy the injustice.
42. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman