Summary: Mrs X complained about the Council’s handling of her daughter’s Education, Health and Care Plan in late 2022 and the lack of alternative provision since January 2023. We have found the Council was at fault for the delay in finalising Plans following reviews in October 2022 and March 2023. This caused Mrs X and S avoidable distress, uncertainty and loss of provision from section F of the Plan. The Council has already accepted some of the faults and apologised together with our further recommendations.

The complaint

1. Mrs X complains the Council:
• delayed amending her daughters EHC Plan after an annual review meeting in October 2022;
• delayed issuing an amended EHC Plan after the emergency review in March 2023
• delayed putting alternative provision in place for her daughter after she requested a new school in January 2023.
2. Mrs X said the Council’s actions:
• caused avoidable distress to her and her daughter;
• meant that it had to hold an emergency annual review in March 2023;
• caused further delay to her right to appeal to the SEND Tribunal; and
• delayed her daughter getting back into education.
3. Mrs X would like the Council to acknowledge the negative impact its actions had on her and her daughter and make changes to ensure this does not happen to another family.

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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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. If we are satisfied with a council’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

8. Mrs X complained to us in May 2024 about events that she was aware of in early 2023. Normally we expect the complainants to come to us within 12 months of realising there was an issue. In this case Mrs X provided me with good reasons for why she did not come to us sooner such as completing the Council’s complaints process first.
9. Because of this I have decided to investigate her complaint from October 2022 onwards.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mrs X and the Council have 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

Annual Reviews

12. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
13. Councils must review an EHC Plan at least every 12 months.
14. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
15. Within four weeks of the review 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 of its decision. If the plan needs to be amended, the Council should start the process of amendment without delay.
16. The Council must send the draft EHC plan to the child’s parent together with the abovementioned notification and give them at least 15 days to give views and make representations on the content.
17. When changes are suggested to the draft EHC plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council held the review meeting.
18. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
19. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Alternative Provision of education for children

20. 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))
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
23. The education provided by a council must be full-time unless a 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)
24. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
25. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
26. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
27. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly or have missed ten school days or more without permission.” This applies to all schools, including academies.
28. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

29. In January 2022 S stopped attending school. Mrs X said this was because her school did not meet S’s needs, and she decided to take her out of school.
30. The Council held an annual review of S’s EHC Plan in October 2022.
31. Mrs X asked the Council to name another school in section I of S’s EHC Plan in mid-January 2023. Mrs X said the Council told her it would have to hold an emergency annual review to be able to amend the school named in the EHC Plan.
32. The Council held an emergency annual review in March 2023. Following the review, the Council issued a draft amended EHC Plan in September 2023.
33. In August 2023 the Council decided that it owed S alternative provision duty and it contacted its approved provider for tutoring.
34. In early October 2023 S started 1-1 tuition for two hours each week.
35. Mrs X complained to the Council in early October 2023 about the delays in EHC Plan process. The Council responded to Mrs X’s complaint and said the delays were caused by the absence of S’s coordinator and that another member of staff took over and would issue the final amended EHC Plan shortly.
36. On the same day Mrs X told the Council she was unhappy about the outcome and asked it to consider her complaint further. Mrs X said she specifically wanted the Council to tell her why it failed to notify her of its intentions on what to do with S’s EHC Plan following the annual review in October 2022.
37. In early November Mrs X temporarily paused S’s tuition, but this resumed in late November 2023.
38. The Council issued S’s final amended EHC Plan in November 2023. This Plan named a further education college as a type of school S should be attending. Following receiving this Plan Mrs X appealed section B, F and I to the SEND Tribunal.
39. In January 2024 Mrs X cancelled S’s 1-1 tuition the Council had organised.
40. In May 2024 the Council issued its final response to her complaint. It accepted that:
• it was delayed in finalising S’s EHC Plan following October 2022 annual review;
• it was delayed in finalising S’s EHC Plan following the March 2023 emergency annual review; and
• the Council’s department responsible for keeping her updated of the progress in S’s EHC Plan did not always do it and it should have.
41. The Council apologised for the delays but said the March 2023 annual review was necessary after Mrs X requested a change to the school placement to be named in S’s EHC Plan. The request came after the October 2022 annual review, and to be able to amend the EHC Plan the Council had to hold an emergency review.
42. In September 2024 S started to attend specialist College.

Analysis

Delays following S’s October 2022 EHC Plan review

43. The Council accepted that it was at fault for the delay in amending S’s EHC Plan following the annual review it held in October 2022.
44. The Council failed to send Mrs X S’s draft EHC Plan. If it had done so, it’s likely that Mrs X would have requested the change to S’s school placement in her comments on the draft EHC Plan.
45. Instead, she emailed the Council and asked it to consider her request. The Council told her that because she did not request it during the annual review meeting the Council had to hold an emergency review of A’s EHC Plan.
46. We consider this is not exactly accurate. At that time the Council had not finalised S’s EHC Plan following the review and could have considered consulting with the school Mrs X requested to be named in her EHC Plan.
47. However, our understanding is that the Council considered the school it had named in S’s EHC Plan could still meet her needs, and Mrs X disagreed with that assessment - this is why she had asked the Council to name another school in section I of S’s EHC Plan.
48. Because of this the Council considered her request as a request for an emergency EHC Plan review and followed the correct process for amending section I of S’s EHC Plan.

Delays following the March 2023 emergency annual review

49. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
50. The Council decided to carry out an emergency annual review around February 2023 and held the meeting in March 2023.
51. The Council failed to complete the process and issue a final EHC plan within 12 weeks from the date of review meeting in March 2023. It should have issued S’s draft EHC Plan around the end of April 2023, but it sent it to Mrs X in September 2023. The Council should have issued the final EHC Plan around mid-June 2023, and it did not do it until November 2023. This was a delay of around five months which was fault. It had an adverse impact on Mrs X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for S because she could have received the tailored provision in an EHC Plan yet to be finalised.
52. In March 2023, following the review the Council agreed to amend section I of S’s EHC Plan. We would expect the Council to decide if it owed S any alternative provision duty, since it agreed to amend section I of her Plan and she was not attending. This did not happen, and we consider this was fault.
53. We would also expect the Council to consider and evidence how it would deliver the provision from S’s EHC Plan, now that it agreed she would not attend the school it had previously named in her Plan. The Council did not do it, and we consider this to be fault.
54. This means that S has missed out on provision from section F of her EHC Plan between March 2023 and November 2023.
55. The records show Mrs X was chasing officers in the SEN team many times for updates, that she did not always get substantive replies, and any replies did not give meaningful updates. Our view is the Council should have given Mrs X an estimated date for when it would issue S’s draft and final EHC plan. The failure to give a rough timeframe was poor communication and was fault.

Alternative provision from October 2022

56. Mrs X said the Council delayed putting alternative provision in place for S after January 2023, when she asked the council to name another school in her updated EHC Plan.
57. The Council was aware S was not attending school in October 2022 when it carried out her annual review. At that time, the Council believed she could soon return to school.
58. We believe at this point the Council should have assessed if it owed S any alternative provision duties. The Council’s records do not explicitly talk about this, but the Council’s comments suggest that it believed that S could return to the school named in her EHC Plan once she recovered from surgery. We cannot say the Council was at fault for this, as Mrs X had not yet asked it to name another school.
59. However, considering S was out of school we would have liked to see the Council’s decision making around having to put alternative provision in place during period of time when S was recovering from surgery and other medical conditions. The lack of such records is fault.
60. This caused Mrs X and S avoidable distress and frustration. We cannot say, even on balance, that the Council would have or should have put alternative provision in place for S after October 2022. This is because that is a decision the Council would have had to make at the time after considering all the available information.
61. In January 2023 Mrs X asked the Council to name a different school in section I of S’s EHC Plan, and at this point it was clear the Council and Mrs X disagreed about whether the school S was on roll with could meet her needs.
62. In March 2023, following the review the Council agreed to amend section I of S’s EHC Plan. We would expect the Council to decide if it owed S any alternative provision duty, since it agreed to amend section I of her Plan and she was not attending. This did not happen, and we consider this was fault.
63. The Council told us that it decided it owed S alternative provision duty in August 2023, and S started getting two hours each week of 1-1 tuition. We consider the Council was at fault for the delay in putting the tuition in place between August and October. We also consider the Council is at fault for the lack of records around what provision and how much of it would be suitable to meet S’s needs.
64. This caused Mrs X and S avoidable distress and frustration. We understand there were no changes in circumstances between March 2023 and August 2023. Because of this we consider its likely the Council would have decided it owed S’s alternative provision duty in March 2023.
65. However, we cannot say, even on balance that S missed out on alternative provision between March 2023 and August 2023 because once the provision was in, it was Mrs X who stopped it. It is possible this would have been the case, even if the Council had implemented the tutoring sooner. Because of this we have decided not to recommend a remedy for potential lost educational provision in this case.

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Agreed action

66. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and S for its failure to provide S with the provision from section F of her EHC Plan and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mrs X £400 to remedy the distress, frustration and unnecessary time and trouble she experienced;
• pay Mrs X, on behalf of S, £800 to remedy injustice caused the loss of SEN provision required by her EHC plan between March 2023 and November 2023. She should use it as she feels best to support her social and educational needs;
• share this decision with relevant staff to ensure that the Council keeps relevant contemporaneous notes about any decision it makes about its section 19 duty; and
• remind relevant staff of the importance of issuing EHC Plans within the statutory timeframes following an annual review.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. We have found the Council was at fault for the delays in finalising S’s EHC Plans following October 2022 and March 2023, delay in considerations about existence of its alternative provision duty and complaint handling. The Council already accepted and apologised for some of the faults identified, and accepted our further recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman