Summary: Mr X complained about the way the Council dealt with Z’s Education, Health and Care Plan and education and special educational needs provision. We have found fault by the Council in: failing to make alternative provision for Z from January to March 2023; deliver Z’s SEN provision from January to July 2023; and complete the EHC Plan review process within the statutory timescales. This fault caused injustice. The Council has agreed to remedy this by: apologising; making payments to reflect the distress and worry caused and the impact on Z of the missed provision; issuing the final amended EHC Plan; and making a service improvement.

The complaint

1. The complainant, Mr X, complains about the way the Council dealt with his child, Z’s Education, Health and Care (EHC) Plan, and provision for their education and special educational needs (SEN). Mr X says the Council failed to:
1. take proper action to find Z a new placement;
2. provide Z with alternative provision when they told it, in January 2023, Z wasn’t able to attend the current placement because it could not meet their needs;
3. deliver Z’s SEN support and specialist therapy from January 2023;
4. complete the EHC Plan annual review process within the statutory timescales following the emergency review of Z’s Plan in April 2023. The Council has still not issued the final amended EHC Plan;
5. properly manage the delivery of a suitable package of Education Otherwise than at School (EOTAS); and
6. provide the support and guidance Mr X needs to manage the EOTAS package.
2. Mr X says, because of these failures, Z has not received appropriate education, support and provision for their needs, affecting Z’s wellbeing.
3. Mr X also says he and his wife have had to spend time managing the EOTAS package and supporting Z at home, causing significant stress and affecting their ability to work. The Council has not recognised the impact of this on them. Mr X wants the Council to compensate them for their time and loss of earnings.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
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 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

8. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. I have not considered any part of Mr X’s complaint about events which took place before January 2023.
10. This is because Mr X did not complain to us (through his contact with the Parliamentary and Health Service Ombudsman) until January 2024. Based on the evidence seen, I do not consider there are good reasons why Mr X could not have complained to us about this part of his complaint before this.
11. I have not investigated any complaint about issues which arose after December 2023, as these were not part of the complaint brought to us in January 2024.

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How I considered this complaint

12. I spoke to Mr X, made enquiries of the Council, and read the information Mr X and the Council provided about the complaint.
13. I invited Mr X and the Council to comment on a draft version of this decision. considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

14. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
15. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
16. 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.

Arrangements for reviewing an EHC Plan

17. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. This says a council must review an EHC Plan at least every 12 months.
18. Within four weeks of a review meeting, a council must:

• notify the child’s parent or the young person 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); and
• where it proposes to amend an EHC Plan, it must send the child’s parent or 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)

19. If the council decides to continue to make amendments, following comments from the child’s parent or young person, 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)

20. 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 plan is issued.

Alternative provision

21. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and any special educational needs they may have. (Education Act 1996, section 19(6))
23. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

24. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
25. For convenience and consistency, I have referred to contact and meetings with the Council about Z’s education as being made by Mr X, although I appreciate that Mrs X has also been part of this contact.

Complaint background

26. Z is a child of primary school age and has had an EHC Plan for a number of years. Z started attending school A, a special school, in September 2021.
27. Z’s EHC Plan in place as at December 2022 named their placement as school A. All the SEN provision set out in the plan, including Occupational Therapy (OT) and Speech and Language Therapy (SALT) was to be delivered by school A.
28. Z’s Plan also included provision for specialist therapy by appropriately trained professionals. This was to be delivered by school A, though its in-school OT input.

January 2023: Mr X tells the Council school A cannot meet Z’s needs

29. Mr X told the Council Z had refused to go back to school. Mr X felt school A was not meeting their needs and Z would be better suited elsewhere. Mr X asked what he should do now.
30. Mr X’s request was referred to the Council’s SEND panel. On 19 January the panel agreed to a change in Z’s placement and said the SEN team should:

• start the consultation process for a change in placement;
• arrange a professionals meeting to discuss Z’s case; and
• look for a suitability qualified OT to support the management of Z’s specialist need.

Consultations for a new placement for Z

31. The Council sent out consultations to four schools. Three said they were unable to meet Z’s needs.
32. The fourth school, school B, said it was able to meet Z’s needs. Z was offered a place at school B and arrangements were made for Z to start at school B in March.

March 2023: Z starts at school B

33. Z’s placement at school A ended on 19 March.
34. Z started at school B on 20 March.
35. Z only attended school B twice between 20 and 29 March. School B contacted the Council on 29 March to share its concerns about Z.

April 2023: Emergency annual review

36. An emergency annual review was held on 4 April. The review notes say:

• school B said it could meet Z’s needs but not within the current cohort. It had agreed with Z’s parents the placement was not suitable for Z;
• the Council agreed to look for another placement. The parental preferences were schools C and D;
• as Z’s attendance was low, home tuition to support Z in the meantime would be arranged by the Council;
• the Council was working to find a suitable provider for Z’s specialist therapy; and
• school B would continue to check Z’s welfare each week.

April to July 2023: Further consultations for a new placement

37. The Council sent consultations to 12 schools during this period, including schools C and D.
38. Most of the schools, including school C, said they could not offer a place because they had no capacity or could not meet Z’s needs. The others were not considered to be suitable.

May to July 2023: Z’s home tuition

39. The Council discussed home tuition with Mr X and commissioned a tutor to provide this for Z. The home tuition sessions started on 2 May and continued to the end of the summer term in July.
40. Z was provided with daily tutor sessions of 1.5 hours (7.5 hours a week) at home initially and then in a library. The sessions were then increased to 9 hours a week.
41. Mr X and the Council discussed the structure and delivery of the tutoring, which Mr X said was going well. He suggested a change to morning sessions only and the removal of the increase in hours, as Z was finding this too much.

July 2023: Mr X’s complaint to the Council

42. Mr X complained the Council had failed to:

• provide Z’s specialist therapy; and
• place Z in an appropriate educational setting. It had accepted schools A and B were not right for Z and should not have placed Z in these schools.

43. In response to the complaint, the Council:

• set out the circumstances around Z’s placements at schools A and B;
• said it was exploring alternative schools for Z. It had not yet been able to identify a suitable new placement, but had put home tuition in place for Z while the search was underway; and
• it would like to discuss the possibility of EOTAS with Mr X.

July to September 2023: Search for a specialist therapy provider

44. The Council has provided a record of its search for a specialist therapy provider.
45. This shows the first request to a provider was sent out on 21 July. Further requests to other providers were sent between 21 July and 15 August.
46. The Council secured a provider for the specialist therapy in September. Funding for the specialist provider was included in the EOTAS package agreed with Mr X and the provision put in place.

September to December 2023: EOTAS package

47. Z’s placement at school B ended on 31 August 2023.
48. On 8 September the Council had a meeting with Mr X about Z’s EOTAS package. The Council says it discussed with Mr X how this would work. Mr X’s preference was for a personal budget so they could arrange the package themselves.
49. The Council’s records show:

• an annual review of Z’s EHC Plan was held with Mr X on 26 September;
• it agreed funding for a teacher and teaching assistant;
• Mr X took responsibility for managing the entire EOTAS package; and
• it agreed a personal budget with Mr X for the EOTAS package which included, in addition to 1:1 tuition, funding for music, PE, design and computer activities.

50. The Council commissioned tuition provided from May 2023 continued until November 2023. Mr X arranged Z’s tuition from this date.
51. The Council continued to consult with settings about a suitable placement for Z.

December 2023: Mr X’s further complaint to the Council

52. Mr X was not satisfied with the Council’s previous responses. He made a further complaint the Council failed to:

• deliver the provision in Z’s EHC Plan from Jan 2023;
• deliver a reviewed EHC Plan from July 2021;
• source appropriate SALT, OT, specialist and other therapy within a reasonable timescale;
• provide sufficient funding for EOTAS provision;
• acknowledge their home environment was unsuitable for Z’s education and sensory needs and provide a solution; and
• provide him with guidance or support to manage the EOTAS package.

53. Mr X asked the Council to compensate him for the time they had had to take off from work to manage the EOTAS package and loss of earnings.

January 2024: Council’s final complaint response

54. The Council confirmed its previous responses and also said:

• school A had provided Z’s specialist therapy. It had tried to find an external provider when Z stopped attending school A, but hadn’t been able to do so until September 2023;
• it accepted there was some delay in delivering the specialist therapy between January and September 2023 despite its best endeavours; and
• it preferred to commission and pay for EOTAS services directly. Mr X chose to manage the package through a personal budget. It discussed the implications of this with Mr X at the meeting in September.

55. Mr X was not satisfied with the response. His complaint was referred to us following initial contact in January 2024 with the Parliamentary and Health Service Ombudsman.

My view – was there fault by the Council causing injustice?

(a) Failure to take proper action to find Z a new placement

56. In my view, the Council took proper action from January 2023 to try to find Z a new placement. This is because the information I have seen shows:

• the Council promptly consulted with other schools following the panel’s decision, but only school B responded positively to say it could meet Z’s needs and offer a place;
• it arranged Z’s placement at school B, with Mr X’s agreement, based on the school’s confirmation it could meet Z’s needs;
• it promptly held an emergency annual review in response to the concerns about school B’s ability to meet Z’s needs and agreed to look for another placement; and
• it consulted about a placement for Z with a further 12 schools between April and July 2023. These schools said they could not meet Z’s needs or did not have capacity or were not considered suitable.

57. When it became clear, at the end of July 2023, it could take some time to find a suitable alternative placement for Z, the Council agreed to provide them with an EOTAS package.
58. I don’t consider the failure to find a suitable new placement for Z is because of fault by the Council.

(b) Failure to make alternative provision for Z

59. The Council agreed to a change in Z’s placement on 19 January 2023. It has told us it accepts, because Z was not attending school, it was fault not to provide Z with a suitable education while it looked for a new placement.
60. The Council found a new placement for Z at school B in March 2023. Once it became clear at the emergency review meeting in April, the placement was not suitable and Z was not attending school, I consider the Council took prompt and proper action to arrange alternative provision for Z.
61. It considered alternative provision for Z at the review meeting in April. After discussing and agreeing arrangements with Mr X it then provided Z with 1:1 tuition at a suitable level for Z’s age, ability and aptitude until the end of the summer term in July 2023. This was followed by an EOTAS package agreed in September 2023.
62. I have not found the Council failed to make suitable alternative provision for Z in the period from April 2023 to September 2023.
63. I have considered the impact of a failure to make alternative provision for Z from January to March 2023 in paragraphs 68 to 72.

(c) Failure to deliver Z’s SEN support and specialist therapy from January to July 2023

64. The Council has accepted it did not deliver Z’s SALT and OT provision from January when Z stopped attending school.
65. It also failed to deliver Z’s specialist therapy from January, and I note it did not start its search for an external provider until July.
66. The failure to deliver the SALT and OT provision, and the specialist therapy important for Z’s health, from January until arrangements were made for the provision in September, through the EOTAS package, was fault.
67. I have considered the impact of this fault in paragraphs 68 to 72.

Impact of the failure to make alternative provision and deliver SEN support

68. Because of the Council’s failures, Z missed out on their education and SEN provision from 19 January, when the panel agreed to a change in placement to 20 March, when the new placement was available.
69. Z continued to miss out on their SEN provision including a specialist therapy important for their health and wellbeing, from April to the end of the summer term in July.
70. We usually consider a remedy payment of between £900 and £2,400 a term to reflect the impact of missed provision on the child or young person. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
71. Here I am recommending a remedy payment of £1,200 for the missed education and SEN provision for half of the Spring term from January to March 2023. And £1,200 for the missed SEN provision for all of the summer term from April to July 2023.
72. The failure to deliver Z’s provision also caused Mr X distress and frustration during this period.

(d) Failure to complete the review process within statutory timescales

73. Following the review meetings on 4 April and 26 September, the Council should have:

• told Mr X, within four weeks of these meetings, of its decision to maintain, amend or discontinue Z’s EHC plan;
• sent Mr X details of any proposed amendments to the Plan; and
• issued the final amended EHC plan as soon as practicable and at the latest, within eight weeks of the date it sent the proposed amended plan.

74. The Council failed to:

• take any action to complete the annual review process following the April review meeting;
• tell Mr X within four weeks of the September meeting about its decision to amend Z’s EHC Plan or send the proposed amendments; and
• complete the review process and issue the final amended EHC plan by 19 December 2023. I understand the final plan has still not been issued.

75. The Council has not explained the reason for the delays. The failure to complete the review process within statutory timescales following both the April and September 2023 meetings was fault.
76. Because of this, Mr X has been caused uncertainty and worry about the arrangements for Z’s education and SEN provision. And he cannot appeal to the SEND tribunal until a final plan is issued, causing further uncertainty.

(e) Failure to properly manage the delivery of a suitable EOTAS package

77. I don’t consider the Council failed to properly manage Z’s EOTAS package. This is because the information I have seen shows the Council:

• promptly commissioned home tuition for Z from May 2023, and responded to requests to change the timetable. This tuition continued until November 2023 when Mr X chose to make his own tutoring arrangements. There is no evidence Mr X complained about the Council’s management of the tuition it commissioned; and
• worked with Mr X to agree the content of and budget for the EOTAS package. Mr X made the decision to manage the EOTAS package himself before it was put in place.

78. I have not found fault by the Council on this part of the complaint.

(f) Failure to provide support for Mr X to manage the EOTAS package

79. The Council’s EOTAS policy says the Council will commission the EOTAS package. Families may choose to directly commission the provision themselves, but this will come with additional responsibilities for providing financial returns and ensuring quality. The Council does not say it will provide support for families who make this choice.
80. The policy also says parents are expected to provide supervision for any tuition or services which take place in the home and ensure a safe environment.
81. Mr X opted to take on the responsibility of commissioning and managing Z’s EOTAS package. He has direct control over how and where the provision is delivered. I haven’t seen any evidence the Council agreed to fund or support Mr X with this responsibility at the time he opted for this, or to fund any changes parents may wish to make to facilitate the delivery of this provision in their home or the time they spend supervising provision at home.
82. I have not found fault by the Council on this part of the complaint.

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Agreed action

83. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its failure to make alternative provision for Z from January to March 2023; deliver Z’s SEN provision from January to July 2023; and complete the EHC Plan review process within the statutory timescales. This apology should be in line with our guidance on Making an effective apology;
2. pay Mr X £400 to reflect the distress, worry and uncertainty caused by the Council’s failures. This is a symbolic amount based on our guidance on remedies;
3. pay Mr X. on Z’s behalf, £2,400. This is a remedy for Z’s benefit to recognise the injustice the missed education and SEN provision has caused them; and
4. issue the final amended EHC Plan if it has not already done so.
84. And within two months of the date of the final decision, the Council has agreed to remind officers of the statutory timescales for completing EHC Plan reviews and the requirement to comply with these timescales.

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Final decision

85. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman