Summary: Mrs X complained the Council did not provide alternative education after her child stopped attending school, only considered making amendments to her child’s Education, Health and Care Plan after giving her a decision not to amend the Plan and did not respond to some of her communication. There was some fault with how the Council considered whether to provide alternative education to Mrs X’s child, however this did not cause injustice. The Council was not at fault for discussing changes to the Plan after it decided not to amend it. The Council was at fault for not responding to Mrs X’s communication. To remedy the injustice caused the Council agreed to apologise to Mrs X, make a payment to her for the anxiety she suffered by poor communication and carry out a service improvement.

The complaint

1. Mrs complains the Council:
• Did not provide alternative education to her child when they stopped attending school.
• Decided not to amend her child’s Education, Health and Care Plan and then agreed to discuss changes outside of the annual review window.
• Did not respond to communication from June to September 2024.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(1), as amended)

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What I have and have not investigated

5. I have investigated matters from June 2024 until January 2025. Mrs X has made a separate complaint to the Council about matters after January 2025.

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. 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 found

Law and guidance

9. A child or young person with special educational needs 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 the council can do this. 
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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
11. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
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. [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.
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. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

15. Mrs X’s child, Y, has special educational needs and an EHC Plan. On 19 July 2024, the Council held an annual review meeting for Y's EHC Plan. Prior to this Mrs X tried to contact Y’s Special Educational Needs (SEN) officer to discuss Y’s education. Mrs X also made further attempts in July and August 2024 to contact Y’s SEN officer.
16. In September 2024, the Council told Mrs X it had reassigned Y’s case to a new SEN officer. In Mid-September 2024, and early October 2024, Mrs X told the Council Y was struggling to attend school and that she had concerns about forcing Y into a school setting.
17. In early October 2024, the Council told Mrs X it was not going to amend Y’s EHC Plan. The Council told Mrs X about her appeal rights to challenge this decision. Following this Mrs X had a discussion with Y’s SEN officer and their manager about Y’s provision. Mrs X raised concerns about Y being forced to work on their own in school as this was having a negative impact on Y. The Council told Mrs X it would hold an emergency annual review in January 2025 to look at Y’s EHC Plan and provision.
18. In mid-October 2024, the Council and Mrs X had conversations about making some changes to Y’s EHC Plan.
19. In early November 2024, Mrs X told the Council she had taken Y out of school as Y could no longer cope there. On 14 November 2024, Mrs X attended a meeting with Y’s school and the Council. The notes from this showed Mrs X was keeping Y off school due to the impact of school on Y’s wellbeing. Y’s school confirmed it could provide support in the interim. Mrs X said she wanted the Council to provide Education Otherwise than at School (EOTAS).
20. Mrs X’s view was that she asked the Council to provide some temporary alternative provision until the January 2025 annual review as Y was not at school.
21. In late November 2024, the Council told Mrs X it would not agree to EOTAS for Y as apart from Mrs X’s view the Council did not have evidence Y could not be at school.
22. Mrs X complained to the Council in late November 2024. Mrs X said Y was out of school with no provision. Mrs X also complained about the attitude of SEN staff at the Council, lack of communication and the Council’s decision to discuss amendments to Y’s EHC Plan after issuing a decision not to amend it.
23. The Council responded to Mrs X’s complaint in December 2024. The Council:
• Apologised for the lack of communication from June to September 2024. The Council said this was due to staff sickness and recruitment challenges.
• Did not believe Y’s school could not meet Y’s needs. The Council said this was based on the discussions it had with the school.
• Y’s school had responsibility to put in place educational provision as she could attend there. The Council said it would only provide EOTAS where a child cannot receive suitable education.
• It would fully assess the situation again in January 2025 at the emergency annual review as this would allow it to consider the most up to date information from professionals supporting Y.
• Apologised Mrs X felt SEN staff were unsupportive and dismissive but at this time Y’s school indicated it could support Y.
24. Mrs X asked the Council to consider her complaint at the next stage of its process as she was not happy with the Council’s response.
25. The Council provided its final response to Mrs X’s complaint on 14 January 2025. The Council said:
• It considered the supporting information Mrs X provided from professionals when deciding not to amend Y’s EHC Plan.
• It believed Mrs X was asking for EOTAS as a short term arrangement as she wanted provision outside of school.
26. In response to our enquiries the Council explained it did not believe it had a duty to provide education to Y under section 19 of the Education Act 1996. The Council said in November 2024, when Y stopped attending school it believed the school could still meet their needs. The Council said it believed Y’s school could offer suitable support and provision.

Analysis

Communication with Mrs X

27. The Council was at fault for not responding to Mrs X’s communication between June and September 2024. During this time Mrs X tried to speak with Y’s SEN officer many times without a response. Mrs X had concerns about Y’s education and wanted to try to resolve these with the Council before Y’s annual review. Following the annual review in July 2024, Mrs X wanted to discuss amendments to Y’s EHC Plan. This caused Mrs X anxiety and frustration as she was unable to do this with the Council.

Alternative provision

28. From early November 2024, Mrs X took Y out of school. At this time she asked the Council to provide some alternative provision until the January 2025 emergency annual review. The records also showed she wanted a package of EOTAS for Y. I am satisfied the decision the Council made not to provide a package of EOTAS was taken properly. The Council considered whether Y’s school could meet their needs. While I recognise Mrs X disagrees with this view I cannot see any fault in how the Council came to this decision.
29. I am also satisfied Mrs X asked the Council to consider alternative provision too as opposed to just EOTAS. Communication between Mrs X and the Council showed Mrs X asked for temporary alternative provision until the January 2025 emergency annual review. I cannot see that the Council properly considered this and instead just decided it was a request for EOTAS. This was fault.
30. While I have found fault here I do not consider it has caused injustice. The Council explained in response to our enquiries its rational for not providing education under section 19 of the Education Act 1996. I am therefore satisfied, on balance, that even if the Council had evidenced it had properly considered whether to provide education under section 19 of the Education Act 1996, it would not have decided it had a duty.

Annual review 2024

31. The Council held an annual review on 19 July 2024 and decided not to amend Y’s EHC Plan. The Council should have issued this decision to Mrs X within four weeks of 19 July 2024. It did not tell Mrs X its decision to maintain the EHC Plan until October 2024. While this was fault by the Council, I do not consider this caused significant injustice as Y’s EHC Plan did not change and Y was still attending school at this time.
32. The Council’s decision not to amend Y’s EHC Plan following the annual review, is an appealable decision. Mrs X could have challenged this by appealing to the SEND Tribunal, therefore we cannot investigate this. However there is nothing stopping the Council from discussing further amendments or looking at an EHC Plan after the annual review process has finished. In this case the Council did this and decided to call an emergency annual review for January 2025. I have not found the Council at fault for this.

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Action

33. Withing one month of my final decision the Council agreed to carry out the following:
• Apologise to Mrs X for the level of communication she received. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £200 to recognise the anxiety and frustration she suffered as a result of not being able to get in contact with her child’s caseworker.
• Take steps to review its procedures around communication and tell the Ombudsman what it has put in place to ensure people are updated when their cases are reallocated to new officers.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman