Summary: Ms X complained the Council has failed to support her family or provide her son with a suitable alternative education and the provision in his EHC Plan. Ms X says the Council’s delay in agreeing an education package and personal budget has had a detrimental impact on her son’s wellbeing and has caused the family significant distress, stress, and frustration. The delay in holding an interim review and in issuing an amended final EHC Plan is fault. As is the failure to provide Y with suitable alternative provision between January 2023 and May 2024. These faults have caused Ms X and Y an injustice.

The complaint

1. The complainant, Ms X complained the Council has failed to support her family or provide her son with a suitable alternative education and the provision in his EHC Plan. Ms X says the Council’s delay in agreeing an Education Other Than At School (EOTAS) package and personal budget has had a detrimental impact on her son’s wellbeing and has caused the family significant distress, stress and frustration.

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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. 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)
4. 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)
5. 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

6. Although Ms X’s complaint includes events since 2021, I am only considering events since January 2023. It was open to Ms X to raise her concerns about events prior to 2023 at an earlier stage.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms X; and
• Ms 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

8. A child or young person with special educational needs (SEN) 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.
9. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council then goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
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. 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. The plan should then be amended without delay and a final plan issued within eight weeks of the amendment notice.

Alternative provision

12. 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.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. 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 here

16. I have summarised below the key events; this is not intended to be a complete account.
17. Ms X’s son Y attended School 1. His attendance began to decline in 2022 and School 1 implemented a reintegration timetable. By January 2023 Y was not accessing school at all. Between January and March 2023 he received tuition at home from Company B for one morning a week.
18. In November 2022 Ms X requested an Education, Health, and Care Needs Assessment for Y. The Council agreed on 16 December 2022 and issued a draft EHC Plan on 21 February 2023.
19. Ms X asked to discuss the draft plan with the EHC officer, Officer 1 prior to a meeting with the school and the Educational Psychologist on 2 March 2023. There is no record of whether this conversation took place.
20. Officer 1 was unable to attend the meeting on 2 March 2023 and asked for minutes/ notes of the meeting. They also told Ms X they would arrange a separate meeting with her to go through the EHC Plan to make sure everything was included. There is no record of a separate meeting with Ms X.
21. Ms X provided her response to the draft Plan on 3 March 2023 with requested amendments. She did not want a school to be named and felt the EHC Plan needed revising to consider her personal budget/ EOTAS request. Mrs X requested a meeting to go through the Plan.
22. On 27 March 2023 Officer 1 wrote to Ms X saying they would issue a final plan that day. They had added sensory integration recommendations but could not add the other amendment Ms X had asked for as they would need to look at a personal budget to fund this. Officer 1 said they would need to hold an interim review to discuss how to put together the personal budget request and Company B.
23. The Council issued a final plan on 27 March 2023, naming School 1.
24. Ms X asked the Council for a list of its preferred approved providers and organisations it worked with for personal budgets. She also asked for the terms of reference for the SEND panel and any policies and procedures the Council had for EHC Plan personal budgets. In addition, Mrs X asked what would happen with the provision from Company B as this was the only educational provision Y was receiving. I have not received a record of any response from the Council.
25. In April 2023 Ms X contacted the Child and Adolescent Mental Health Service (CAMHS) crisis line for advice. Ms X says she was advised the Council’s Early Help service could make referrals for primary age children. Ms X then contacted Early Help to ask them to refer Y to CAMHS. The Council asked an officer to explore the options.
26. On 12 April 2023 Ms X asked for a meeting to discuss the EHC Plan. She noted she had not agreed the final Plan and queried her right to appeal. Again, I have not received a record of any response from the Council.
27. School 1 arranged a meeting on 23 April 2023 regarding provision for Y. As Officer 1 did not attend the meeting School 1 provided feedback the following day. They said it was clear Y would not be returning to school that term and sessions geared to towards reintegration to the outside from the house were required. School 1 asked Officer 1 to provide it and Ms X with clarity regarding which approved providers could be used to support this. They suggested Company B would be the best and most natural fit for the remainder of the summer term and beyond.
28. School 1 also noted the education welfare officer had authorised Y’s absences from January 2023 as code i (illness). This was on the basis Y had an EHC Plan which removed the need for a medical diagnosis.
29. Officer 1 arranged a further meeting on 4 May 2023 with Ms X and School 1 to discuss Y’s EHC Plan. I have not received any records of what was discussed at this meeting. However, Ms X subsequently wrote to Officer 1 setting out their understanding and raising queries. She noted that although Company B offered short term provision, the Council could fund this longer term if it was via school, and the provision could be open ended.
30. Ms X also noted that as Y was unable to access a full-time education in school the Council had offered access to the home tuition service or Company B. Officer 1 had explained Ms X’s request for a personal budget would be refused currently. Ms X would need to provide more evidence that Y requires an alternative education such as a GP letter or Clinical Psychologist report.
31. Ms X asked for written guidance/ the Council’s policy or procedure on:
• the evidence threshold the Panel would require for EOTAS requests;
• why the only offer available to children unable to attend school due to SEND is limited to tuition or Company B;
• why OT intervention cannot be added to an EHC Plan or included in EHC Plan funding.
32. Ms X reiterated her request for EOTAS and a personal budget. She did not consider the offer of half a day’s provision with Company B each week was an adequate replacement for a full-time education. Nor did it meet all of the outcomes in Section F of Y’s EHC Plan.
33. Officer 1 provided a link to the Council’s information on personal budgets and advised they would need more information before they could make a request to the Panel. Officer 1 offered to discuss it further with Ms X. A meeting was arranged for 19 May 2023. I have not received any records of this meeting, but Ms X says Officer 1 agreed to put a bespoke education plan together and organise a professionals meeting to discuss the plan.
34. Ms X also chased Early Help for an update on 19 May 2023. The officer advised Ms X that CAMHS do not accept referrals for primary age children. Ms X disputes this. The officer subsequently advised that while CAMHS do not generally accept referral for children of primary school age an exception would include completing a parenting programme with Early Help. The officer said they were awaiting further clarification on this. There is no record of any further contact from Early Help.
35. Following a meeting with professionals on 11 July 2023, Officer 1 wrote to Ms X on 19 July 2023 asking her to confirm Y would not be returning to School 1. They suggested if this was the case the next step would be to remove him from the role. Officer 1 asked Mrs X whether there were any other schools she would like the Council to consult or whether she intended to home educate Y pending a decision on EOTAS status. Officer 1 said Y did not currently meet the EOTAS criteria.
36. Ms X was confused by the suggestion to off-roll Y as she understood this to be unlawful. She also confirmed they were not making a choice for Y not to attend school and had worked hard to support him to reintegrate. Ms X reiterated Y could not attend school due to severe anxiety and needed an EOTAS package.
37. In addition Ms X was unhappy the EHC Plan was still in draft form and that the Council had asked her to sign it even though she did not agree with it. She noted they had repeatedly discussed a personal budget and EOTAS and in their last contact Officer 1 had requested contact details for a provider Ms X had identified. This had led Ms X to believe the Council was looking into a package of support for Y.
38. Ms X also confirmed they now had a draft report from the Clinical Psychologist and Y had a diagnosis of Autism and ADHD. She told Officer 1 she intended to submit a formal complaint as Y had been without a suitable education for a year.
39. Officer 1 asked for a full copy of the Psychologist’s report and confirmed they would proceed to panel for an EOTAS package. They also confirmed the final EHC Plan was issued on 27 March 2023 and sent a further copy. Officer 1 suggested an interim review take place after the Panel decision on EOTAS.
40. Ms X provided a copy of the report and a letter from Y’s GP and then completed a personal budget form for the SEND Panel to consider on 10 August 2023. On 8 August 2023 Officer 1 advised Ms X the Council had decided it needed to hold an interim review before putting the personal budget request to the Panel. They would attempt to arrange this at the start of the academic year in September 2023
41. An interim review was arranged for 3 October 2023 then rearranged at Ms X’s request to 19 October 2023. The review notes School 1 firmly supported the need for an EOTAS package. School 1 felt an educational school setting was not currently appropriate for Y’s needs. The outcome was for an EOTAS package to be presented to the SEND Panel.
42. The SEND Panel considered the request for an EOTAS package on 9 November 2023 but deferred a decision. The notes state the Panel required further information before being satisfied it would be inappropriate for provision to be made in a school.
43. In early December 2023 the Council provided an update on the Panel’s decision and the action the Council had taken. It explained the Education Welfare service (EWS) would not sign Y off on medical grounds based on the information from Y’s GP. On this basis EWS would not provide tuition and would be looking at what reintegration plan could be offered once a setting is named.
44. However on 6 December 2023 the Council then made an out of panel decision to agree an EOTAS package. Ms X agreed the details of an EOTAS package with Officer 1 and the EP on 9 January 2024 and this was approved by the SEND panel on 25 January 2024.
45. The Council issued an Amended Draft EHC Plan on 10 January 2024.

Complaint

46. Ms X submitted a formal complaint on 23 August 2023. She discussed her concerns with the investigating officer who then agreed the following heads of complaint:
1. Concerns about the initial advice and level of support provided by the educational psychologist following a meeting in January 2022;
2. The Council’s failure to make a referral to CAMHS;
3. The Council failed to provide a suitable education or ensure provision was put in place for Y;
4. Poor and inconsistent communication with Officer 1;
5. Ms X did not receive a response when she disagreed with the content of the draft EHC Plan. Ms X had not signed Y’s EHC Plan and therefore believed it was still in draft form.
6. Having to repeatedly discuss the situation in relation to a personal budget and EOTAS;
7. Officer 1 not attending a multi-agency meeting in March 2023 at short notice, which resulted in provision not being put in place.
47. The Council responded to Ms X’s complaint on 30 October 2023 and addressed each concern in turn. It partly upheld complaints three and six. The Council noted it had not yet determined whether it was reasonably practicable for Y to attend the mainstream provision specified in his EHC Plan. It said this should have been clarified at an earlier stage and prior to discussions taking place about suitable alternative education. The Council did not uphold the remaining complaints
48. The Council apologised and offered Ms X a remedy payment of £100 in respect of the avoidable time and trouble caused. Ms X was not satisfied with the Council’s response and asked for her complaint to be considered at stage two of the Council’s complaints procedure. She felt her concerns had not been investigated thoroughly and was unhappy the investigating officer was satisfied with verbal reassurances without due regard to the evidence.
49. Ms X submitted further evidence and set out in detail why she disagreed with the Council’s findings.
50. The Council reviewed Ms X’s complaint and responded in January 2024. It apologised for the delay in responding. The Council was satisfied its investigation at stage one was robust and agreed with the findings.
51. As Ms X remains dissatisfied she has asked the Ombudsman to investigate her concerns. Ms X says the although the Council agreed an EOTAS package in December 2023 it did not agree a personal budget until May 2024. The Council has also not issued a final EHC Plan since issuing a draft amended Plan in January 2024.
52. In response to my enquiries the Council says that on reflection the events up to July 2023 indicate there was a missed opportunity for a clear, shared understanding between parents and professionals about the Council’s position that Y should remain on roll at School 1 and Ms X’s request for alternative provision.
53. The Council says the delay in finalising the EHC Plan was due to the Council and Ms X working through the personal budget request and agreement of the wording regarding flexibility. It recognises there has been further delay as the Plan should have been finalised once the personal budget was agreed on 17 April 2024. This will now be rectified and the Council will issue the final EHC Plan.
54. Current provision is now in place for Y through a personal budget.

Analysis

55. Legislation and Government guidance set out clear procedures and timeframes for carrying out EHC assessments and producing EHC Plans, and for carrying out review of an EHC plan.
56. The Council carried out an EHC assessment and issued a final Plan within the statutory 20-week timeframe. However, it is concerning that on the same day it issue the final Plan the Council confirmed it would need to carry out an interim review. This suggests the EHC plan did not accurately reflect Y’s needs and the support he requires.
57. Although the Council considered an interim review was necessary in March 2023 the review meeting did not take place until October 2023. The documentation shows the Council changed its position and advice on whether it would agree a personal budget and an EOTAS Package several times before arranging the review. It was also inconsistent in terms of whether the review should take place before or after a request to the SEND panel. This lack of clarity led to delays and unnecessary confusion and uncertainty for Ms X.
58. There were also delays in the review process. The review meeting took place on 19 October 2023, but the Council did not issue a draft amended plan until 10 January 2024. The Council had still not issued a final EHC Plan when it responded to my enquiries in early July 2024.
59. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The failure to do so is fault.
60. I also consider the Council was at fault in not ensuring Y received a suitable education. Councils have a duty to arrange suitable education for a child it knows cannot attend school.
61. The Council was aware Y had not attended school since January 2023 and that his absence was recorded as illness. In the circumstances I consider the Council should had provided alternative provision. I recognise Y received some provision from Company B between January and March 2023. But this was only for one morning a week and could not be considered full time education.
62. It is also clear that Y did not receive the provision in his EHC Plan.
63. The law says we cannot normally investigate a complaint when someone has a right of appeal, to a tribunal about the same matter. As Ms X had a right of appeal to the SEND Tribunal when the final plan was issued we would not generally investigate any loss of education after 27 March 2023.
64. However, where we decide it was reasonable for the complainant not to appeal we can still look at the education being provided in the period after the appeal rights arose. In this instance on the same day it issued the final Plan the Council advised Ms X it needed to hold an interim review. It was therefore reasonable for Ms X not to exercise her right of appeal. It is also clear from the documentation that given the need for an interim review, it was not clear to Ms X that the plan issued on 27 March 2023 was a final Plan. I have therefore exercised discretion to consider Y’s loss of education after 27 March 2023.
65. Save for the small amount of provision with Company B, Y did not receive any education provision between January 2023 and May 2024. Although the Council agreed Y should receive an EOTAS package and this was approved by the SEND Panel in January 2024, Ms X did not receive the personal budget until May 2024. The Council’s failure to ensure Y received a suitable education between January 2023 and May 2024 is fault.
66. Having identified fault I must consider whether this has caused Ms X and Y an injustice. The delay in holding an interim review and in amending Y’s EHC Plan caused Ms X frustration and uncertainty and put her to unnecessary time and trouble. It also delayed her ability to exercise her right of appeal to the SEND tribunal.
67. The failure to provide Y with alternative provision means he lost out on an education for four and a half terms. This is a significant injustice.
68. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 to £2400 per term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.

Given Y’s age, the stage of his education and the education and support he missed, I consider a payment of £6,750 would be appropriate. This is based on £1,500 per term for 4.5 terms.

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Agreed action

69. The Council has agreed to:
• apologise to Ms X and Y for its failure to provide suitable alternative education for Y between January 2023 and May 2024, and the delay in the review process and in issuing a final EHC plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• make a payment of £6,750 to Ms X to acknowledge the impact of the missed additional education Y could have received between January 2023 and May 2024. This money should be used for Y’s benefit.
• make a symbolic payment of £500 to Ms X to acknowledge the additional pressures, distress, and uncertainty she experienced as a result of the Council’s failings.
70. The Council has also agreed to issue written reminders to relevant staff to ensure they are aware of
• the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• the Council’s duty to meet statutory timescales for EHC needs assessments and EHC Plans.
71. The Council should carry out 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

72. The delay in holding an interim review and in issuing an amended final EHC Plan is fault. As is the failure to provide Y with suitable alternative provision between January 2023 and May 2024. These faults have caused Ms 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