Summary: Ms D complained that the Council delayed for over a year in finalising the Education, Health and Care Plan for her child, E and failed to provide E with any education during this period. We found fault with the Council actions. It has agreed to pay £2,400 for another term of missed provision in addition to the £7,650 already offered.

The complaint

1. Ms D complained that Suffolk County Council (the Council) in respect of her child, E, delayed for over a year in finalising their Education, Health and Care (EHC) plan and failed to provide them with any education during this period. This situation has caused Ms D significant distress and frustration and E has missed out on vital education for a long period of time.

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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. 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)
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)

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What I have and have not investigated

6. I have investigated the period from September 2022 when E stopped attending school to 23 January 2024 when the final EHC Plan was issued, and Ms D’s appeal rights arose.

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

EHC Plans

9. 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 the council can do this. 

Reviews

10. 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.
11. 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) 
12. 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.

Alternative provision

13. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Council’s complaints policy

14. The Council operates a two stage complaints procedure. It says that it expects to resolve most complaints at stage one (Local Resolution).
15. If a complainant remains dissatisfied following receipt of their stage one response, they should notify the Council within 20 working days confirming the reasons why they are dissatisfied. Within 5 working days the complainant will be notified whether a further stage one response is to be issued or that the complaint is to be investigated at stage two, or that the Council has completed its consideration of the complaint.
16. A further response may be issued at stage one if additional information relating to the complaint is presented after the stage 1 response is provided or if the initial response did not address all the points in the original complaint. This response will be issued within 10 working days from the date the Council agreed to issue a further response.
17. If attempts to resolve the complaint at stage one are not successful, the complainant can ask for the outstanding issues to be considered at stage two.

What happened

18. Ms D’s child E has special educational needs and an EHC Plan. They stopped attending school in September 2022 and Ms D tried home-educating E. The school arranged an Annual Review on 13 December 2022, which concluded the school could not meet E’s needs. Ms D requested an Educational Psychologist’s report and change of placement. She felt unable to carry on with home education. The annual review report recommended an Educational Psychologist assessment, a sensory assessment and specialist provision. It also considered E needed interim provision to help with any transition.
19. In April 2023 the Council made a referral to a tuition provider and another specialist alternative provision. (Provider X). But the Council also said that referrals to the tuition provider were on hold at that time and the Provider X had no places. So, nothing was put in place.
20. Ms D complained about the lack of education for E. The Council responded at stage one of its complaints procedure on 9 June 2023 . It apologised for the delay in securing a placement for E and recognised it had not acted quickly enough. It said consultations were ongoing and it was taking steps to find E some alternative provision. The Council said Ms D accepted the stage one response and did not request escalation to stage two but raised new issues. The Council dealt with these as an additional stage one response.
21. In July 2023, the Council agreed funding for Provider X and E was put on the waiting list. The Educational Psychology report was issued in July 2023 and Ms D complained again. The Council sent a second stage one complaint response. It said consultations were still ongoing, but some placements had not yet responded. Provider X still had no places. The Council recognised E had received no education for three terms and offered a payment of £7,200 for this in addition to £450 for the distress caused. Ms D was happy with this resolution.
22. The Council issued a draft EHC Plan on 17 August 2023, stating that E would aim to transition back into an education setting throughout 2023/24.
23. At the end of August 2023, the Council found another tuition provider who could offer 2:1 teaching. Ms D was unsure if the type of tuition was right for E. By the end of September she had changed her mind but the provider did not have staff in the area. Provider X was still not available and another alternative provision (Provider Y) could offer an hour a week for 20 weeks but E needed technical equipment to access the provision. The Council agreed to discuss this and come back to Ms D.
24. In October 2023 a school offered a place to start in January 2024 which Ms D accepted. The Council also explored other alternative provisions in the meantime. Ms D had complained again about the failure to issue a final EHC Plan or to find a suitable placement for E. The Council sent a third stage one response on 26 October 2023. It apologised for the delay in putting alternative provision in place and went through the various options which it had explored but none had come to fruition. It said the school had promised to confirm the place for January 2024 and Provider Y had offered a 20 week placement. Provider X still had a long waiting list.
25. On 20 November 2023 it offered Ms E £700 to purchase a computer so E could access Provider Y’s placement and £150 for the continuing delays. The school confirmed the place on 29 November 2023 . The Council issued the final EHCP naming the school on 23 January 2024. E started at the school on 9 January 2024, but the placement has now broken down.

Analysis

26. The Council has recognised it failed to provide suitable alternative education for E for three terms from September 2022 until July 2023 and offered the maximum amount (£2,400 per term) suggested in our Guidance on Remedies. I welcome this payment.
27. But the Council’s failure has continued for another term as no alternative provision was put in place from September to December 2023. While I recognise it made some effort to find provision, none were successful. I have concluded this was continued fault which caused E to miss out on more education and Ms D further distress and frustration.
28. It also delayed excessively in amending the EHCP following the Annual Review in December 2022, not issuing the finalised plan until 23 January 2024, over a year later. This was fault which has caused additional distress to Ms D and delayed finding a suitable permanent placement for E. Ms D now has a right of appeal if she wishes to challenge the placement named in the EHC Plan.

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Agreed action

29. The Council offered additional money to fund a computer for E and for Ms D’s continued distress. However, I considered the Council should pay Ms D another £2400 for the lack of education for another term.
30. The Council has agreed to my recommendation and should provide us (within one month of the date of my final decision) with evidence it has complied with the above actions.

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Final decision

31. I consider this is a proportionate way of putting right the injustice caused to Ms D and E and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman