Summary: Mrs X complained the Council has continued to fail to provide a suitable education for her daughter Y and has allowed further delay in the annual review process for Y’s Education Health and Care Plan. The Council’s failure to provide alternative education provision is fault. As are the delays in the annual review process and in considering Mrs X’s request for an Education Other Than At School package and personal budget. This fault has caused Mrs X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to Mrs X complained the Council has continued to fail to provide a suitable education for her daughter Y and has allowed further delay in the annual review process for Y’s EHC Plan.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. (Local Government Act 1974, section 26(6)(a), 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. 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 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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What I have and have not investigated

7. I have not investigated events after the Council issued the final EHC Plan in November 2023. Mrs X has exercised her right of appeal to the SEND Tribunal.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X and the Council;
• discussed the issues with Mrs X’s mother, Mrs Y
• sent a statement setting out my draft decision to Mrs X and the Council and invited their comments.

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What I found

Alternative provision

9. 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, Health and Care (EHC) Plan.

10. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or council can do this.
11. There is a right of appeal to the Tribunal against a number of decision, including the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
12. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
13. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

What happened here

15. This is Mrs X’s second complaint to the Ombudsman about the Council’s failure to provide her daughter, Y with education provision and delays in the EHC Plan review process.
16. In our previous investigation we found the Council at fault as it had not completed a phased annual review a year after it was due and had not ensured Y received education provision since April 2022. The review should have been completed by February 2022, but the Council did not begin to arrange this until late February 2023. The failure to carry out the review meant Y did not receive any education.
17. We recommended the Council pay Mrs X £4000 for Y’s lost education up to February 2023 and £500 for each subsequent month that Y did not have a package of education in place.
18. Mrs X complains that Y is still not receiving a suitable education. The Council paid Mrs X an additional £750 for the ongoing missed education in March and April 2023. The Council advised us at this stage that it had secured a tutor to begin work with Y on 21 April 2023. Mrs X says this tuition did not take place.
19. The Council held an annual review of Y’s EHC Plan at the end of February 2023 and issued a final amended plan on 12 June 2023. Section I of the plan did not name a setting or type of setting and Y remained out of education. Mrs X says she submitted a personal budget for a package of Education Otherwise Than At School (EOTAS). She understood this would be presented to the Provision Panel for consideration in August 2023.
20. In August 2023 Mrs X made a further complaint to the Council that Y was still not receiving an education and the Council had not made any further payments to redress this.
21. The Council responded in early October 2023 and apologised for the delay in responding. It offered to pay a further £2000 in respect of Y’s missed education between May and September 2023, and an additional £100 for the distress caused. The Council also confirmed Y’s case had been prepared for presentation to the Provision Panel.
22. Mrs X was not happy with this response. She was concerned that having been told the case would be presented to the Panel in August 2023 the Council instead consulted mainstream schools for a place in September 2023. Further consultations were now being sent to more schools and an EOTAS package would not be considered until the Council had the consultation responses. Mrs X understood that by leaving Section I of the EHC Plan blank it was accepted Y would receive an EOTAS package.
23. The Council confirmed that not identifying a placement in the EHC Plan did not mean there would be an EOTAS package. It said it must follow the correct process and the EOTAS request and personal budget to fund this had not yet been agreed. The Council confirmed the Panel would consider the request but advised there must be clear evidence Y’s needs cannot be met by any provision other than EOTAS. It was for this reason the Council was consulting other settings.
24. Mrs X was not satisfied by the Council’s response and asked for her complaint to be considered further.
25. In November 2023 the Council offered Y a place at a school with Specialist Resourced Provision (SRP) and amended the final EHC Plan to name the school.
26. The Council then reviewed Mrs X’s concerns and responded noting Y had now been offered a place at a school with SRP and that transition discussions were underway. The Council acknowledged there had been an additional period of missed provision since its response in early October 2023 and offered to increase the payment accordingly from £2,100 to £2,850.
27. The Council also acknowledged that having started the annual review in February 2023 there were further delays and Y’s plan was not finalised until 12 June 2023. This meant the Council had not met the statutory timeframe for the review process. It apologised for the delays and the frustration they caused.
28. In additional the Council acknowledged and apologised for the delay in considering Mrs X’s request for an EOTAS package and personal budget. It confirmed the Panel had now considered the request and decided that Y’s needs could be met with an SRP setting.
29. In a further response in December 2023 the Council acknowledged it had only sent the final EHC Plan to the school on 20 November 2023, not to Mrs X. It apologised and confirmed it had now reissued the plan. The Council said the school had confirmed it could meet Y’s needs in its SRP and a start date had been agreed.
30. As Mrs X remains unhappy she has asked the Ombudsman to investigate her complaint. Mrs X does not consider the school named in Y’s EHC Plan can meet her needs, and maintains Y needs an EOTAS package. She has appealed to the Tribunal but is concerned about the waiting time for a tribunal hearing as Y is still without an education.

Analysis

31. It is disappointing that having found fault with the Council’s failure to provide a suitable education for Y in our previous investigation, Y has continued to miss out on an education for so long. The repeated failure to provide Y with suitable education provision after February 2023 is fault.
32. The Council made the payment recommended in our previous decision for the period to the end of February 2023 and has made a further payment in respect of March and April 2023. It has also offered to make a payment for missed provision in the period May to November 2023. I recognise Mrs X would have preferred Y to receive the educational provision, but as this did not take place, these payments/ offers are appropriate.
33. I also note that Y is still not receiving an education as Mrs X does not consider the place at the SRP suitable. As this provision is named in Y’s EHC Plan and Mrs X has appealed this to the SEND Tribunal I am unable to consider any further missed provision after November 2023. The suitability of the provision now available to Y is a matter for the Tribunal, not the Ombudsman.
34. It is also disappointing that there were further delays in the annual review process. Legislation and Government guidance set out a clear procedure and timeframe for carrying out an annual review of an EHC plan. The annual review process started in late February 2023 this means the Council should have sent Ms X the final amended EHC Plan in May 2023. However the Council did not issue the final amended Plan until 12 June 2023, this was at least three weeks late. The Council’s failure to meet the required timeframes here amounts to fault.
35. The delay in considering Mrs X’s request for EOTAS and a personal budget is also fault. Mrs X made the request in June 2023, but it was not presented to the Provision Panel until October 2023. This delay caused Mrs X unnecessary distress and uncertainty.
36. I note the Council has offered to pay Mrs X £100 in recognition of the additional distress caused. The Council’s attempt to resolve this matter is to be welcomed, however I consider a higher payment would be appropriate.

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Agreed action

37. The Council has agreed to:
• apologise to Mrs X and Y for the further delay in completing the annual review and for not arranging alternative education provision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• if it has not already done so, pay Mrs X £2,750 in recognition of Y’s missed provision between May and November 2023; and
• pay Mrs X £250 to recognise the further distress and uncertainty the Council’s actions have caused her.
38. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

39. The Council’s failure to provide alternative education provision is fault. As are the delays in the annual review process and in considering Mrs X’s request for an EOTAS package and personal budget. This fault has caused Mrs X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman