Summary: Mrs X complained the Council failed to arrange alternative provision for her child W, when they struggled to attend school. She also complained the Council delayed amending W’s Education, Health and Care (EHC) plan when she wanted W to change schools. The Council was at fault for failing to properly consider if it needed to arrange alternative provision and for delay in amending W’s EHC plan. This caused Mrs X uncertainty, distress and frustration and meant W missed out on special educational provision. The Council should pay Miss X £1000 in recognition of her and W’s injustice and take action to prevent fault occurring again.

The complaint

1. Mrs X complained the Council failed to arrange alternative provision for her son, W when they had difficulties attending school. Mrs X also complained the Council took too long to issue W’s amended Education, Health and Care plan when she wanted them to change schools.
2. Mrs X said this caused her and W significant anxiety and meant she had to take time off work to educate W.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
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 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.

What I have and have not investigation

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. Mrs X complained about matters dating from February 2022. She did not complain to the Ombudsman until July 2023. I have chosen to investigate back to February 2022 because I am satisfied that for much of the period between it and July 2023, Mrs X was waiting to see if new interventions would resolve W’s difficulties in school. My investigation ends in October 2023, when W moved schools.

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How I considered this complaint

10. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
11. Miss 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

Relevant law and guidance

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. The provision generally should be full-time unless it is not in the child’s interests. We refer to this as section 19 or alternative education provision. 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)
13. 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)

Education, Health and Care plans: annual reviews

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F is special educational provision.
15. Councils must review EHC plans every year. The first annual review must be completed within twelve months of the first EHC plan. Subsequent reviews must be completed within twelve months of the previous annual review.
16. The first stage of an annual review is to hold an meeting to see whether a child or young person’s EHC plan remains appropriate. Within four weeks of the review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. The meeting and decision notice together make up the annual review. The annual review must be completed within 12 months of the first EHC plan.
17. The Code says that where a council proposes to amend an EHC plan, it should begin the process of amendment ‘without delay’. 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 (an amendment notice; sometimes called a draft EHC plan). If the parent requests a different school placement the council must consult with that school by sending the draft EHC plan.
18. Following comments from the child’s parent or the young person and consultations with any schools, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the existing EHC plan and proposed amendments to the parents.
19. Caselaw from March 2022 clarified the timetable for annual reviews. The High Court decided that if a council intends to amend a child’s EHC plan, they must send the draft EHC plan (amendment notice) along with the notification they intend to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHC plan.

What happened

20. W is a young child with emotional and sensory needs resulting in challenging behaviour. In September 2021, W began attending a mainstream primary school.
21. In October 2021, the Council issued W’s first EHC plan. In section F the plan said W needed:
• significant adult support and supervision. Adults should use strategies to help W expand their vocabulary, play with other children, manage change, identify and regulate their emotions;
• 1:1 support while eating and drinking;
• staff to provide a daily 15 minute focused session before a class to help W learn vocabulary relating to the class session;
• access to a quiet space; and
• for a Speech and Language Therapist (SALT) to visit at least four times a year to help with their attention skills, social interaction skills, language ability, understanding and speech development.
22. W struggled to cope with the demands of a school day. In February 2022, the School started W on a part-time reintegration timetable.
23. In March 2022 the Council held a Team Around the Family (TAF) meeting. Council’s hold TAF’s where there are social care concerns about how a family with children is coping. They are attended by family members and practitioners involved with the children. The meeting heard the School had noticed a ‘vast improvement’ in W’s behaviour since they started on the part-time timetable. The less demanding timetable meant W was more able to engage in learning, although it still needed to be in very short bursts. The TAF heard the School was planning to increase W’s timetable.
24. The School prepared a timetable ready for the 2022 summer term. It noted W would attend for 1.5 hours a day to do things like sharing a book in the library and engaging in play. The only class time scheduled was fifteen minutes in maths, where W worked towards engaging for two minutes.
25. In October 2022, the Council held another TAF. It heard:
• the School had tried to increase W’s timetable but it had resulted in more incidents of challenging behaviour;
• the School had previously talked about alternative provision in meetings with Mrs X but she had not wanted to explore it. It had offered home tutoring, but Mrs X had declined it;
• Mrs X now felt W should have art therapy and LEGO therapy;
• Mrs X did not feel W needed to go to a specialist school;
• the School would try to increase W’s timetable by 15 minutes but warned it may result in more challenging behaviour from W; and
• Mrs X agreed to look at other schools and Mrs X and the School agreed they would explore alternative provision providers.
26. Subsequently, the School identified a learning and leisure centre designed for children with needs like W’s (Provider A). W started attending for four hours per week.
27. In November 2022, the Council’s Communication and Interaction Support Service began a six week course focused on helping W identify their emotions and learn to manage them.
28. In advance of W’s 2023 annual review, the School prepared a report. It noted W was able to attend school for 1.5 hours per day but was not in any classes. W spent his time in Thrive sessions (Thrive is a teaching tool to support pupil’s social and emotional development) and other supported activities which did not follow the class learning because W could not cope with it. W was continuing to find it difficult to engage with adult-led activities like teaching for even 2-3 minutes. The report stated W’s attendance had dropped to just over 40%.
29. In mid-January 2023 the Council held W’s annual review meeting. Mrs X said she now felt W needed a specialist school.
30. Mrs X complained to the Council in March 2023. She said she was unhappy with the amount of education W was receiving and said the Council had taken too long to amend W’s EHC plan.
31. The Council sent its decision to amend W’s EHC plan in late May 2023.
32. The Council replied to Mrs X’s complaint in early June to say it had asked W’s School how it was using W’s EHC plan funding to support W, other than the 1.5 hours in school. The Council said once it had a reply from the School, it would contact Mrs X to discuss further support that should be provided to W. It apologised for the delay in amending W’s EHC plan.
33. Mrs X told me the Council never contacted her about alternative provision after the complaint response. The Council said it had called Mrs X to reassure her W would not lose access to Provider A if they were excluded from the School due to behavioural incidents.
34. The Council sent W’s draft amended EHC plan in early June 2023. It consulted with schools and issued W’s amended plan in mid-September 2023. The plan named Mrs X’s preferred specialist school. The amended plan added in provision such as:
• adults should understand W could be demand avoidant;
• W needed extra visual guides and more verbal prompting;
• adults should give W the opportunity to do exercises to regulate their feelings using their senses.
35. W began attending the new school in mid-October.

Findings

Failure to arrange suitable alternative provision

36. W began attending school part-time in February 2022. The Council became aware of that in March 2022, when the part-time timetable was discussed at a TAF meeting. However, there is no evidence to show the Council had suitable oversight over W’s provision after March 2022. It only received updates through the October 2022 TAF meeting, the January 2023 annual review and Mrs X’s March 2023 complaint. That is not sufficient. In addition, there is no evidence to show how the Council decided, after receiving those updates, if education at the School was “available and accessible” to W and if it was not, whether the education W was receiving was suitable and as close to full-time as they could cope with. The Council was therefore at fault for failing to properly consider if it owed W the alternative provision duty. This caused Mrs X distress.
37. From March to October 2022, the fault did not cause W an injustice because the October TAF meeting shows the School had previously discussed arranging provision outside of school with Mrs X and she had declined it. I am satisfied that even if the Council had decided it owed W alternative provision in that period, Mrs X was unlikely to have accepted it and W would have been unlikely to cope with it.
38. After the October 2022 meeting, Mrs X and the School identified Provider A, which could provide learning outside of a school setting. W was also supported by the Council’s Communication and Interaction Service for six weeks. On balance, I consider that had the Council acted without fault, it would not have concluded W needed alternative provision. The School had agreed to increase W’s timetable and W was receiving two new forms of provision. It is likely the Council would have concluded W would struggle to cope with more new provision until they had settled in.
39. However, by the time of the January 2023 annual review meeting, W had attended Provider A for some time and had completed the work with the C&I Service. W had been unable to increase their time in the School and their attendance had dropped to around 40%. Mrs X said again that she was unhappy with the amount of provision W was receiving. At that point, the Council should have reconsidered whether it needed to arrange alternative provision for W. I cannot say, even on balance, what the Council’s decision would have been. Mrs X is therefore left with uncertainty about whether the Council would have arranged provision for W, and what it would have been.
40. Following a recent Ombudsman investigation, the Council has agreed to review its processes to ensure that when a child is unable to attend school, any alternative provision is arranged without delay. No further recommendation is necessary.

Delay in amending W’s EHC plan

41. The Council should have completed W’s annual review by October 2022, twelve months after it issued W’s first EHC plan. It did not begin the annual review process until January 2023, which was fault.
42. The Council then delayed completing the annual review. It should have issued its decision to amend W’s EHC plan within four weeks of the annual review meeting; by mid-February 2023. The Council did not issue its decision until late May 2023. That was a delay of three months and was fault.
43. The Council was also at fault for delay in amending W’s plan after the annual review. Councils should take no more than twelve weeks from the date of an annual review meeting to issue a child’s EHC plan. The Council took 35 weeks (eight months) which amounts to six months of delay.
44. The faults set out in this section caused Mrs X avoidable frustration. I cannot say that had the Council issued W’s amended EHC plan without delay (by mid-April), W would have moved to their new school earlier. However, the amended plan included changes to the strategies staff should use with W and but for the delay, the School could have implemented those strategies throughout W’s final term.

Failure in complaints handling

45. The Ombudsman's Principles of Good Administrative Practice state that we expect councils to ensure they learn lessons from complaints. This includes promptly carrying out the actions it identifies as necessary in complaint responses.
46. The Council told Mrs X it would speak to the School and then contact her to discuss further support for W. It did not do that. The calls it made to confirm W would not lose access to Provider A if W was excluded were not conversations about further support. The Council was at fault, which caused Mrs X further avoidable frustration.

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Agreed action

47. Within one month of the date of my final decision, the Council will take the following action.
1. Pay Mrs X £1000 in recognition of her injustice and the impact of the lost special educational provision on W.
2. Review why the Council took three months to issue its decision to amend W’s EHC plan. If the Council identifies flaws in its process or areas for improvement, it will prepare an action plan setting out how it will address those issues.
48. The Council will provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman