Summary: Mrs X complained about the Council’s delays in the Annual Review of her daughter’s (Y) Education Health and Care Plan and the Council’s failing to provide Y with suitable education for many months. We found fault with the Council. We also found fault with the way the Council dealt with Mrs X’s complaint. The Council’s fault caused injustice to Y and Mrs X. The Council has already accepted its fault and offered some remedies. We accept most of the remedies offered by the Council. The Council has now agreed a higher payment to recognise the injustice caused to Y be the Council’s failings within its alternative provision duty.

The complaint

1. Mrs X complains about delays in the Annual Review of Y’s Education Health and Care (EHC) Plan. She says the Council delayed issuing a final amended plan following the inadequate Annual Review of Y’s EHC Plan in December 2022 and Annual Review in May 2023 which means Y has missed out on education and social opportunities. Mrs X also says the Council failed to provide suitable education for Y when she was out of school.
2. Mrs X says the Council’s failings caused the family financial loss, as she had to reduce her hours of work, and significant distress.

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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. 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)
5. 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.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. I have not investigated whether the Council used correct professional advice when amending Y’s EHC Plan. If it has failed to do so, Mrs X can appeal the content of Y’s EHC Plan and this would be the right way to challenge the Council’s position.
11. I have not investigated anything that happened after the Council issued Y’s final amended EHC Plan at the end of February 2024 as this was not part of Mrs X’s complaint.

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How I considered this complaint

12. I spoke with Mrs X and considered the information she provided.
13. I made enquiries with the Council and considered the information it provided.
14. I referred to our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” issued in July 2022 and amended in August 2023.
15. Mrs 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

Legislative and administrative framework

Annual Reviews

16. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHC Plan;
• In any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)

Alternative provision

17. 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.
18. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
19. 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)
20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

School year 2022/2023

22. In September 2022 Y started attending a mainstream secondary Academy (School 1).
23. In Y’s Year 7 the Council carried out two Annual Reviews for Y’s EHC Plan. The first one took place in mid-December 2022 and the second one five months later.
24. During the Annual Review in December Mrs X stated that although Y struggled in a mainstream school, a specialist provision would not be suitable for her. Y’s difficulties with school attendance were noted and a part-time timetable agreed for her. Y would be gradually re-integrated into School 1. Annual Review attendees also discussed extra provision for Y, including equine therapy chosen and proposed by Y. From January 2023 the Council started funding equine therapy for Y once a week.
25. After Annual Review meeting the Council sent Mrs X its decision not to increase funding for Y. It also told Mrs X the Annual Review was not carried out correctly by School 1 and needed to be redone.
26. At the end of January 2023 Mrs X told the Council Y could not attend School 1 because of her anxiety and impact on mental health. When at home she struggled to engage in learning either independently or supported by her parents. Mrs X formally asked for Y’s assessment by an Educational Psychologist (EP) as her needs might have changed since she was last assessed in 2020. Mrs X confirmed equine therapy was working well for Y.
27. Following the Council’s meeting with School 1 in mid-March 2023 the Council agreed to increase funding for Y to enable School 1 to support Y and increase her attendance over the summer term. At the time of the meeting Y was to attend School 1 three times a week for 45 minutes. This would increase to one and a half hour three times a week in May 2023. Mrs X told me Y’s attendance was much lower than that and amounted to 15 minutes at School 1 when she was able to attend. This happened possibly every other week.
28. At the beginning of July 2023 the Council told Mrs X it intended to amend Y’s EHC Plan following its review in May.
29. Y was taken off her school roll in July 2023. The Council agreed to provide Y with Education Otherwise than at School (EOTAS) from September 2023.

School year 2023/2024

30. From the second week of September Y started receiving home tutoring arranged and funded by the Council.
31. Mrs X contacted the Council at the end of September 2023. She said Y’s mental health had declined and she had not reacted well to the tutoring. She asked to reduce the number of days and hours. Mrs X again asked for Y to be assessed by an EP. A few days later Mrs X stopped tutoring sessions for Y and made a referral to Children and Adolescent Mental Health Services (CAMHS). CAMHS offered some individual sessions for Y, but she refused to engage.
32. The Council told Mrs X it would be willing to explore with the tutoring company an option of holding Y’s tuition sessions in an external venue. There is no evidence this was pursued. The Council also told Mrs X it had started consulting with some special schools.
33. At the end of October 2023 the Council sent the proposed amendments to Y’s EHC Plan to Mrs X.
34. The Council apologised to Mrs X for the delays in paying for Y’s equine therapy. It stated there was no agreement to consult with independent placements but the Council would continue consulting with maintained schools.
35. In January 2024 the Council offered a specialist provision for Y (School 2). Mrs X declined this offer as she did not consider School 2 could meet Y’s needs. She did not believe the Council used updated documents when consulting with School 2.
36. The Council accepted School 2 would not be suitable for Y and started consulting with independent special schools from February 2024. It also said it would look for a package of education for Y in the interim period.
37. At the end of February 2024 the Council issued Y’s amended EHC Plan. Section I was left blank. In mid-March 2024 the Council offered Y a place at an independent special school (School 3), which Mrs X accepted.

Complaint

38. Mrs X complained about the Council’s delays following Annual Reviews of Y’s EHC plan and the lack of education for her at the beginning of January 2024. The Council said it would respond within ten working days.
39. Two weeks later the Council apologised for the delays and confirmed it was still investigating. After a few days Mrs X asked for the Council’s complaint policy and what she should do if the Council failed to respond to her complaint.
40. The Council sent its response at the beginning of February 2024. The Council recognised it had failed to comply with the statutory timescales for the Annual Review process of Y’s EHC Plan but did not address Mrs X’s complaint about Y missing out on education for a prolonged period. The Council did not offer any other remedies, apart from an apology.

Analysis

Annual Review

41. Following the Annual Review meeting in May 2023, the Council agreed to amend Y’s EHC Plan. It should have done so by the beginning of August 2023. The Council issued Y’s final amended EHC Plan at the end of February 2024. The delay of over six months is fault.
42. The injustice caused to Y and Mrs X by the Council’s delays was increased by the fact the earlier Annual Review carried out between November 2022 and January 2023 the Council considered inadequate. As a result the period of uncertainty for Mrs X about Y’s needs and provision she needed after changing schools was even longer. Y’s significant difficulties with attending School 1 meant it was important for her to have her EHC Plan updated, which the Council recognised in May 2023. Any delays with amending Y’s EHC Plan were also detrimental to conveying her true profile to special schools, which the Council started consulting in the autumn term 2023. Besides Mrs X’s appeal rights were delayed.

Alternative provision

43. From January until the end of July 2023 School 1 funded equine therapy for Y to address her social, emotional and mental health needs. It also placed Y on a part-time timetable. Y managed to attend School 1 only occasionally and for a short time.
44. The Council knew about Y’s difficulties with attending School 1 since the autumn term of 2022. Until July 2023 the Council did not seem to take responsibility for checking whether it should have arranged alternative provision for Y to ensure she was receiving suitable education.
45. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect councils to:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• Consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending.
• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.
46. At no point during the school year 2022/2023 the Council considered whether it had a duty to arrange alternative provision for Y to ensure she was receiving suitable education, as described in paragraph 17. This is fault.
47. I consider, on the balance of probabilities, that if the Council had made the decision on its section 19 duty, it would have arranged alternative provision for Y. This is for the following reasons:
• There is no record of the Council querying Y’s reasons for non-attendance, which stemmed from her social, emotional and mental health needs;
• Despite School 1’s efforts any trials to re-engage Y with school education proved unsuccessful;
• Y could not even access part-time timetable set up for her by School 1, so for many months of the school year 2022/2023 had no education;
48. The Council should have arranged education for Y from February/March 2023. We would normally allow one term for the try to reintegrate a child into the school and a few weeks for the Council to decide on its section 19 duty and make arrangements.
49. In July 2023 the Council agreed to provide the EOTAS package to Y from September 2023 until it could find a suitable school for her. Although the Council arranged individual tutoring for Y from September 2023, in its response to us it has accepted it was not suitable. From October 2023 Y did not receive any tutoring. She continued accessing equine therapy once a week, which was funded by the Council.
50. The Council’s failure to consider its section 19 duty in the spring and summer term 2023 and to arrange suitable alternative provision for Y in autumn term 2023 and spring term 2024 caused injustice to Y and Mrs X.
• For Y – it meant she lost much education and social interactions. Y was described as able and bright as well as keen to learn so falling academically behind her peers must have been particularly detrimental to her.
• For Mrs X – she was getting increasingly frustrated by the amount of time Y was without education. There was decline in Y’s presentation at home which affected the whole family.

Complaint

51. The Council delayed responding to Mrs X’s complaint, failed to address all the issues of her complaint and failed to offer remedies. This is fault. When councils recognise their failings we expect them to refer to our Guidance on remedies and offer remedies in line with this document.
52. The Council’s failings within its complaint handling caused further injustice to Mrs X. She spent much time on communicating with the Council and us.

Remedies

53. In its response to the Ombudsman the Council has accepted it had failed by delaying post-Annual Review process and not providing suitable education for Y from September 2023 to February 2024.
54. The Council offered:
• A letter of apology;
• £700 in acknowledgement that the alternative provision offered in September 2023 was not suitable and the only provision offered from October 2023 until February 2024 was equine therapy;
• £500 for the injustice caused by the delays in issuing a final amended EHC Plan for Y;
• £500 for distress;
• £300 for the time and trouble spent on communication with the Council.
55. I accept most remedies the Council offered, acknowledging its failings. I do not accept, however, the payment for Y’s missed education and special educational provision offered by the Council is sufficient. I recommend £1,300 per term for half of the spring and the summer term of 2023, £1,700 for the autumn term of 2023 and £1,000 for half of the spring term 2024. I recommend the total payment of £4,650 for Y’s missed alternative provision and special educational provision from the beginning of March 2023 until the end of February 2024.
56. In our recent investigations 23 003 950, 23 007 358 and 23 015 907 we recommended some service improvements to ensure the Council complies with its alternative provision duties, improves Annual Review process and its complaint handling. We recognise it will take some time for the Council to address its failings identified in our recent investigations.

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Agreed action

57. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified following our guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice;
• pay Mrs X £4,650 to recognise injustice caused to Y by the lack of suitable education for her from the beginning of March 2023 to the end of February 2024;
• pay Mrs X £500 to recognise injustice caused by the delays within the Annual Review process;
• pay Mrs X £500 to recognise the distress caused to her by the Council’s failings identified in this complaint;
• pay Mrs £300 for Mrs X’s time and trouble spent on complaining.

The Council will provide the evidence that this has happened.

58. We recognise it will take some time for the Council to address its failings with the timeliness of Annual Reviews, alternative provision and complaint handling, which we identified in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendation in the complaints 23 003 950, 23 007 358 and 23 015 907 through our casework.

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Final decision

59. I uphold this complaint. For the reasons explained in the Analysis section I found fault with the Council for the delays with the Annual Review of Y’s EHC Plan, how the Council approached its section 19 duty and the way it dealt with Mrs X’s complaint. The Council’s fault caused injustice to Y and Mrs X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman