Summary: Ms X complained the Council failed to provide her son, F with education or provision in line with his Education, Health and Care (EHC) plan when he stopped attending school in March 2021 for health reasons. The Council was at fault. It failed to put in place alternative provision and delayed issuing F’s amended EHC plan following an annual review in March 2021. This meant F went without suitable education until September 2022. The Council agreed to pay Ms X £6375 to acknowledge the impact this had on F’s education and social development. It also agreed to pay Ms X £500 to recognise the distress caused to her. Finally, it should review complaints it has received about alternative provision and consider, bearing in mind this decision, whether it has remedied any injustice the complainants experienced properly.

The complaint

1. Ms X complained the Council failed to provide her son, F, with education or provision in line with his Education, Health and Care (EHC) plan between March 2021 and September 2022 when he stopped attending school because of health reasons. Ms X said the Council failed to issue an amended EHC plan following an annual review in March 2021 or put in place any alternative provision.
2. Ms X says F had no formal education during this period which had impacted on his educational and social development and has caused both F and her distress and uncertainty.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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

7. I spoke to Ms X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter, the relevant law and guidance and the Ombudsman's Guidance on Remedies.
9. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

10. Children with complex needs may require an Education, Health and Care (EHC) plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
11. Councils are responsible for making sure all the arrangements set out in in the EHC plan are put in place.
12. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable.

Annual Review of an EHC plan

13. Councils should review an EHC plan at least every 12 months where a child attends a school or other educational establishment. This ‘annual review’ begins with an annual review meeting, normally held by the child’s school. Councils then decide whether they want to maintain, amend or cease the child’s EHC plan.
14. Where a 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)
15. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments from the child’s parent or the young person, 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 EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. Caselaw has clarified that councils should take no more than 12 weeks from the date of the annual review meeting to the date they issue the final EHC plan.

Alternative provision law and guidance

18. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.

Education Other Than At School (EOTAS)

20. Councils have a duty to provide educational provision which meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school. This is referred to as Educational Other Than At School.
21. For children and young people with an EHC plan, the EOTAS provision must be covered in section F of an EHC plan which should detail the package of education being provided.

What happened

22. Ms X has a son, F, who in 2021 was of secondary school age in year 10. F has special educational needs including autism and had an EHC plan which named a specialist secondary school as his placement. The plan noted F was due to transition to a specialist provision after easter in 2021.
23. F’s EHC plan set out the provision he was entitled to in section F of the plan. This included detail on how to manage F’s autism and communication difficulties and how to develop his social, emotional and mental health needs. The plan set out that the school must use funding to the equivalent of 25 hours per week staffing support for F to access one to one and small group work.
24. In March 2021 F’s school held his annual review. F had stopped attending school due to mental health issues since November 2020 and had refused to access online learning which the school had provided. The records show Ms X said she wished for F to be educated outside of the school setting and requested a budget to do so. The review notes show a change of placement was required due to a change in F’s needs.
25. The Council confirmed it became aware of F’s annual review conclusion in March 2021 and had noted a change of placement was required.
26. Records show F remained out of school without appropriate alternative provision for the remainder of the 2020/21 academic year and into the 2021/22 academic year. The records show the Council spoke with Ms X in November 2021 about EOTAS. It considered an EOTAS was required and started liaising with F’s school to obtain relevant evidence, but this was not followed up on or progressed.
27. In July 2022 Ms X complained to the Council. She complained the Council had delayed putting in place alternative provision or an EOTAS package following the March 2021 annual review. Ms X said had nothing from the Council since November 2021 and the lack of education was significantly impacting on her and F.
28. The Council issued F’s final amended EHC plan in September 2022 which set out an EOTAS package for F and named a virtual online school as his placement. Records show F has accessed this education since September 2022 and is progressing and engaging well. The Council said it plans to hold an annual review in spring 2023.
29. The Council issued a final response to Ms X’s complaint in September 2022. It apologised for the length of time it took to put in place an EOTAS package for F. It said the delay was down to an increase in the number of EHC plans the Council is managing and turnover of staff.
30. Ms X remained unhappy and complained to us.

The Council’s response to my enquiry letter

31. The Council accepted there was a lack of oversight in this case which caused a delay in arranging and agreeing F’s EOTAS provision and issuing the final EHC plan. The Council accepted that the March 2021 annual review concluded that F required an alternative placement and while work started on this, there was not sufficient oversight to progress it.
32. The Council said F’s school attempted to put in place strategies to support him while he was out of school such as a part time timetable, support at home, virtual lessons and meeting him in various locations. However, the school said F would not engage.
33. The Council said it recognised it was at fault and proposed a payment of £4,800 to acknowledge F’s loss of education between April 2021 and September 2022. It also proposed a payment of £300 to remedy the time and trouble caused to Ms X.

My findings

34. The Council has accepted fault for:
• the significant delay in issuing F's amended EHC plan following the annual review in March 2021;
• failing to provide sufficient oversight in providing alternative provision for F between April 2021 and September 2022; and
• delay in arranging an EOTAS package for F following the March 2021 annual review.
35. These faults meant F went without suitable education and the provision in line with his EHC plan between April 2021 and September 2022; at an important time in his education. It caused him distress, uncertainty and impacted on his educational and social development. The matter also caused Ms X significant stress, uncertainty and time and trouble.
36. We welcome the Council has acknowledged and accepted the fault and has proposed a remedy for the injustice caused to F and Ms X. However, the Council's proposal does not suitable to remedy the injustice caused to both F and Ms X. I say this because:
• of the prolonged period F went without provision in line with his EHC plan at an important time in his education;
• the lack any meaningful engagement with Ms X during the whole period;
• of the prolonged period of stress and uncertainty caused to Ms X.
37. In line with our guidance on remedies I have therefore recommended an increased payment to recognise the injustice caused to both F and Ms X.

Others who may be affected

38. The faults in this case was due to a lack of oversight, staff turnover and the number of EHC plans the Council is managing. It is therefore likely there are others who complained to the Council during the same period about a lack of alternative provision for children out of school because of medical or health reasons. I am concerned the Council may not have offered any complainants similarly affected a suitable remedy in line with our guidance.
39. Section 26D of the Local Government Act 1974 gives us the power to investigate matters coming to our attention during an investigation even if the person affected has not complained. Section 31(2B) allows us to make recommendations to remedy the injustice a person affected by council fault experienced. I have therefore made a recommendation below to remedy the injustice these complainants may have experienced.

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Agreed action

40. Within one month of the final decision the Council agreed to:
• apologise to both Ms X and F for the distress and uncertainty caused to them when it failed to ensure F received suitable education or the special educational provision in line with this EHC plan between April 2021 and September 2022;
• pay Ms X £6375 to recognise the impact the faults had on F's educational and social development between April 2021 and September 2022;
• pay Ms X £500 to acknowledge the distress, uncertainty and time and trouble caused to her by the faults.
41. Within three months of the final decision the Council will review all complaints it has received since January 2022 (both open and closed complaints) about a lack of alternative provision for a child out of school for medical/health reasons. It should take into account the findings in this case and our guidance on remedies to see whether it has provided/proposed a suitable remedy for any loss of education. The Council will provide us with a brief summary of each complaint setting out the key facts, findings and any remedy the Council decides appropriate.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman