Summary: Mrs B complains the Council did not deal with her daughter’s education properly. The Council did not consider the provision of alternative education, failed to ensure Special Educational Needs (SEN) provision was made and did not fulfil its responsibilities regarding an annual review. Mrs B suffered avoidable distress and had to go to avoidable time and trouble. C missed educational and SEN provision. The Council has agreed to apologise, pay Mrs B £2,550, pay Mrs B £100 for avoidable distress and time and trouble, provide guidance to staff and provide a report to the Ombudsman.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council has not dealt properly with her daughter C’s education properly since September 2021 because it:
• Failed to provide alternative education provision for C when she could not attend school;
• Failed to provide C’s SEN provision in her Education Health and Care Plan (EHCP) during the same time period; and
• Delayed a decision about Education Other Than At School (EOTAS) for C from an emergency EHCP annual review in January 2022.
2. Mrs B says C has lost seven months educational and SEN provision, she has had to pay for therapies and assessments, she has had to give up her job and her right of appeal has been delayed.

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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. 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 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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How I considered this complaint

6. I spoke to Mrs B about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. Mrs B has already complained to the Ombudsman about an earlier time period regarding C’s EHCP and the provision of alternative education. The Ombudsman found the Council did not properly consider whether C required alternative education provision between October 2020 and August 2021. This investigation covers the subsequent time period.

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What I found

Law, guidance and policies

Education Health and Care Plans (EHCP)

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)

Reviewing an EHCP

12. As part of an EHCP annual review, the local authority and the school, further education college or section 41 approved institution attended by the child or young person must cooperate to ensure a review meeting takes place. This includes attending the review when requested to do so. When holding an annual review of an EHCP, the child’s parents or young person, a representative of the school or other institution attended, a local authority SEN officer, a health service representative and a local authority social care representative must be invited and given at least two weeks’ notice of the date of the meeting. (SEN Code of Practice para 9.176)
13. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code of Practice para 9.176)
14. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain he plan, and notify the child’s parent or the young person and the school or other institution attended. (SEN Code of Practice para 9.176)
15. If the plan needs to be amended, the local authority should start the process of amendment without delay. (SEN Code of Practice para 9.176)
16. If the local authority decides to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. (SEN Code of Practice para 9.196)

Alternative Education

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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
18. 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)

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. The Council issued C with a final EHCP in August 2021.
21. Mrs B requested an emergency annual review of C’s EHCP in early December 2021 as a result of C disengaging from school and continuing to deteriorate.
22. A meeting was held at C’s school in January 2022.
23. The Council considered Mrs B’s request for EOTAS rather than a mainstream school placement.
24. The Council agreed to the provision of EOTAS in March 2022.
25. The Council sent a final amended EHCP to Mrs B in July 2022.

Analysis

26. Mrs B’s request for an emergency EHCP annual review for C made it clear that C was not receiving any education at all at that time. Correspondence evidence between September and December indicates that C was only receiving between one and two hours a day tuition when she attended school.
27. After Mrs B requested an emergency annual review of C’s EHCP, the Council passed her request to the officer overseeing the annual review team.
28. The Council’s response to my enquiries has been contradictory. It says,” Mrs B emailed [the Council] to formally request an early annual review which was issued to the annual review team to allocate.”, and also, “Apart from Mrs B’s formal request for an emergency annual review there has been no information within our records to say that the meeting held was part of an annual review for C”. These statements are mutually exclusive. The meeting could not be both an annual review and not an annual review at the same time. The email evidence supports the former statement. The meeting was initially accepted to be an EHCP review.
29. Emails show Mrs B was unable to make contact with the Council officer about a date for C’s annual review.
30. Mrs B and C’s school arranged a date in the absence of any input from the Council. C’s school correctly noted that it would not be able to make any decisions at the meeting and that would be the responsibility of the Council after the meeting.
31. The emergency EHCP annual review meeting was held on 13 January 2022. The Council did not attend the meeting.
32. The Council acknowledged Mrs B’s request for EOTAS, which she made clear at the meeting, at the end of January. It apologised for its late response at that time.
33. The Council then sought additional evidence before it agreed to EOTAS for C in March 2022.
34. There is no evidence the Council considered whether it should provide alternative education provision for C until its decision to support EOTAS had been made, even though it was clear she was not receiving a full education. This is fault by the Council. C missed educational provision she was entitled to.
35. C evidently could not have received any of the SEN provision in her EHCP while she was unable to attend school. It is the Council’s duty to ensure such provision is made, as outlined in paragraph 9 above. This is fault by the Council. C missed SEN provision she was entitled to.
36. The Council treated the meeting in January as a simple request for EOTAS, rather than an EHCP review. In doing so, it did not fulfil its duty outlined in paragraph 11 above to co-operate to ensure a review meeting takes place. This resulted in it also failing to decide what action should be taken within the four week time period specified in paragraph 13 above.
37. The maximum time the Council should have taken to make a decision and issue an updated EHCP for C was 12 weeks. This is comprised of four weeks to decide what to do, and then a further maximum of eight weeks to issue a final amended EHCP. The Council should therefore have made a decision by 10 February 2022, and issued an updated EHCP by 7 April 2022.
38. I note that SENCOP, as identified in paragraph 15 above, says the Council should issue an amended EHCP as quickly as possible and the eight week period is an absolute maximum.
39. There was a 14 week delay in issuing the amended EHCP. This is fault by the Council. There was a resultant delay in deciding to grant EOTAS and also in issuing C’s updated EHCP. Mrs B and C received an amended EHCP late, which consequently delayed their right of appeal.

Action by the Council

40. The Council agreed to backdate all funding for activities for C to November 2021, totalling £1413.50.
41. I do not consider the Council’s remedy to be sufficient, having regard for the fault found above and the consequent loss of educational and SEN provision. The activities paid for by Mrs B were necessarily limited by what she could afford to spend and do not accurately reflect C’s level of need during that time period. I consider that C’s needs would be at least equal to the EOTAS budget of £285 per week later agreed by the Council. The remedy actually offered works out at approximately £80 per week, taking into account school holidays.
42. The cumulative failings identified above, in the context of the previously upheld complaint, are extremely concerning.
43. I have considered the Ombudsman’s Guidance on Remedies, which says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the child’s SEN, any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period, whether additional provision now can remedy some or all of the loss and whether the period affected was a significant one in a child’s school career.
44. Where a child without SEN received part-time education in supportive home circumstances, the remedy payment will usually be at the lower end of the range. Where a child with moderate learning difficulties received no education at all, the remedy payment will usually be at the higher end of the range.”

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Agreed action

45. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks, or as specified, of this decision:
• Apologise to Mrs B and C for the loss of educational and SEN provision, together with the failure to deal with the EHCP annual review properly;
• Pay Mrs B £2,550 in respect on C’s lost educational and SEN provision. I have calculated this over 17 weeks between November 2021 and March 2022 at the higher end of the scale;
• Pay Mrs B £100 for avoidable distress and time and trouble;
• Provide guidance to staff relating to the EHCP annual review process and their responsibilities within it; and
• Undertake a review at director level of Mrs B’s case and provide a report to the Ombudsman in three months outlining its findings and detailing any additional learning or service improvements identified.

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Final decision

46. I have found fault by the Council, which caused injustice to Mrs B and C. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman