Summary: Mrs X complains the Council failed to provide her child, Y, with a suitable education and it failed to communicate with her effectively. The Council acknowledges it was at fault. The fault caused loss of provision and avoidable distress. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. The complainant, Mrs X, complains that, since January 2023, the Council has failed to provide her child, Y, with the provision in his education, health and care plan. Mrs X also complains about the Council not communicating with her effectively to address her concerns about the lack of education Y was receiving.

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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)
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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How I considered this complaint

7. I considered Mrs X’s complaint and the information she provided.
8. I considered the information provided by the Council in response to my enquiries.
9. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education, health and care (EHC) plans

10. A child with special educational needs may have an 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 SEND Tribunal or Council can do this.
11. Statutory guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out Education Heath and Care (EHC) assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Education Needs Regulations 2014. It says:
• the first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review;
• the decision following the review meeting, whether to keep the EHC Plan as it is, amend it, or cease to maintain it, must be notified to the child’s parents or young person’s parents within four weeks of the review meeting; and
• within 8 weeks of the original amendment notice, it must issue the amended EHC Plan.
12. The Council must secure the special educational provision where it maintains an EHC Plan for the child. This does not apply where the child’s parents, for example, have made suitable alternative arrangements. (Children and Families Act 2014, section 42 (2) and (5))

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.
14. 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)
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw confirmed a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

16. Mrs X has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. Y was attending a mainstream school, School 1. In May 2022, Y’s placement at the school broke down because it could no longer meet his needs.
17. In July 2022, an annual review of Y’s EHC Plan was held and the Council decided to amend the Plan. The amended final Plan was issued on 14 September 2022.
18. Y was on roll at School 1 until January 2023. The Council funded alternative provision until March 2023.
19. The Council offered Y a place at School 2 for a September 2023 start. When Y’s placement commenced, Mrs X worked with School 2 for it to provide Y with alternative provision. School 2 arranged alternative provision at a farm.
20. On 8 September 2023, Mrs X complained to the Council under Stage 1 of its complaints process. Mrs X complained about the lack of communication she had received from the Council, its failure to arrange an annual review of Y’s EHC Plan and failure to provide him with the provision in his Plan.
21. On 8 September 2023 Mrs X requested a reassessment of Y’s needs.
22. The Council responded to Mrs X’s Stage 1 complaint on 20 September 2023. It said Y’s Planning Coordinator had made contact with Mrs X during the summer term to discuss an alternative placement for Y and she said she would make contact with Mrs X to clarify the next steps. The Council also confirmed that the school had notified it that they will be holding an annual review next week.
23. Mrs X was dissatisfied with the Council’s Stage 1 response because it had not addressed her complaint regarding loss of provision since January 2023 and it had not responded to her request to reassess Y’s needs. Mrs X was also unhappy about the short notice she had received about the annual review meeting. Mrs X escalated her complaint to Stage 2 of the Council’s complaints process.
24. The annual review meeting was held on 27 September 2023.
25. Mrs X requested an update on her complaint on 4 October 2023 and again on 25 October 2023.
26. On 19 October 2023, the Council agreed to reassess Y’s needs.
27. At the end of November 2023, Mrs X notified the Council that the alternative provision School 2 had arranged was not suitable for Y’s needs and he would no longer be attending.
28. The Council sent its Stage 2 response to Mrs X in December 2023 and apologised for the delay. It acknowledged no alternative provision was in place for Y between April and July 2023. It said it was School 2’s responsibility to issue the invitations to the annual review and to obtain information from professionals working with Y. The Council advised Mrs X to raise this matter directly with School 2.
29. The Council also said its Panel agreed to reassess Y’s needs on 19 October 2023 and it had up until 24 January 2024 to complete the assessment.
30. The Council upheld that alternative provision was not in place between April and July 2023 and that Y’s annual review did not take place within 12 months of his previous review. The Council apologised to Mrs X and offered a financial remedy of £300.
31. Mrs X was unhappy with the remedy offered by the Council.
32. Y was provided with alternative provision in the form of tutoring from 11 March 2024 to 22 July 2024.
33. The Council encountered delays with the OT and agreed to source one privately. The Council received the report from the OT on 26 March 2024. In May 2024, the Council sent an amended draft of Y’s EHC Plan to Mrs X and she sent her amendments to the draft to the Council.
34. The Council issued Y’s final EHC Plan on 24 May 2024 and named School 3 as the setting for Y. I understand Y will start his placement at School 3 in September 2024.

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Analysis

Alternative provision

35. The Council acknowledges no alternative provision was offered to Y between April and July 2023. In addition to this, the Council did not arrange alternative provision for a further three and a half months from 29 November 2023, when Mrs X notified the Council the alternative provision at the farm was not meeting Y’s needs, to 11 March 2024. This is fault.
36. As a result of the Council’s fault, Y missed out on education for the equivalent of two terms. The Council also failed to make the provision specified in Y’s EHC Plan during this period. This was further fault.
37. In response to my enquiries to the Council regarding what alternative provision was arranged for Y, the Council advised me there are gaps in its recording. The Council should have a system in place to ensure provision in an EHC Plan is being delivered to a child or young person.
38. The Council’s remedy offer of £300 does not sufficiently remedy the loss of provision and the impact this had on Y.

Annual review of Y’s EHC Plan

39. Councils must review EHC Plans at least annually. The Council failed to do this in 2023. The Ombudsman takes the view that Councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This caused avoidable distress to Mrs X and it meant Y did not have an up-to-date EHC Plan reflecting his needs for the duration of the delay.

Reassessment of Y’s needs

40. The Council should have sent its decision to Mrs X’s request for reassessment within 15 calendar days of receiving the request. The Council’s decision was delayed by 26 calendar days. This is fault.
41. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan. The Council delayed issuing Y’s final EHC Plan by 17 weeks. This is also fault. This caused frustration and uncertainty about Y’s education.

The Council’s communication with Mrs X

42. The Council accepted it could have communicated better with Mrs X than it did throughout. This is fault and caused an injustice to Mrs X because she advised me she has autism and she found it extremely challenging when the Council was not communicating with her effectively.
43. I have found further fault with the Council for the length of time it took to issue its Stage 2 response to Mrs X’s complaint. This also caused frustration and Mrs X went to time and trouble chasing the Council for a response.

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Agreed action

44. To remedy the injustice caused by the faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mrs X for the identified faults;
• Pay Mrs X £350 for the avoidable distress caused by not communicating with her effectively, the delays in the annual review process and the delay in making its decision to reassess Y’s needs;
• Pay Mrs X £1700 for not ensuring Y received any education or EHCP provision for two terms. I have deducted the £300 remedy payment the Council has already provided to Mrs X. I recommend Mrs X uses the payment of £1700 for Y’s benefit.
• Reminds relevant staff of the Councils duty to secure education and EHCP provision for children not able to attend school.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. The Council is at fault and this caused injustice to Mrs X and to Y. The Council has agreed to remedy the injustice caused therefore I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman