Summary: The Council’s actions contributed to the breakdown of K’s specialist school placement. The alternative education then offered by the Council while K was out of school did not include all of the special educational provision set out in his Education, Health and Care (EHC) plan. The Council also delayed finding K an alternative permanent school placement and delayed amending his EHC plan. The Council has agreed to apologise and make payments to K and his mother, Miss B.

The complaint

1. Miss B complains that the Council:
• failed to provide her son, K, with suitable full-time education between 17 September and 16 November 2020;
• failed to ensure K received the provision set out in his EHC plan during the same period;
• failed to properly communicate with her about K’s education;
• delayed amending K’s EHC plan; and
• delayed securing a permanent school place for K.
2. Miss B says that as a result of these failings, K missed several weeks of education and she was unable to work which affected them financially. Miss B says that the Council’s failings have also caused her significant distress and put her to avoidable time and trouble.

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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 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Law and government guidance

8. 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 Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
9. The procedure for reviewing and amending EHC plans is set out in legislation and Government guidance.
10. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (s20 (10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
11. 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. (s22 (2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
12. 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)
13. 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. (s22 (3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196)
14. 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))
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Overview

16. Miss B’s son, K, is 9 years old. He has special educational needs and an EHC plan.
17. On 14 September 2020, K started attending a new school for children with special educational needs, but the placement broke down after a few days.
18. A meeting was held on 18 September to evaluate K’s placement, consider alternative provisions, and whether to make changes to K’s EHC plan.
19. The Council’s notes show that the school did not consider it could meet K’s needs. It said that it would not have offered a place to K if it had received all the information available from his previous school. The school agreed to arrange alternative education for K while a new school placement was found.
20. The Council agreed that K’s EHC plan did not fully reflect his needs and an early annual review was arranged to update it.
21. Following the meeting, Miss B contacted K’s previous school who advised that it had provided all the available information to the new school. Miss B considered the new school had been dishonest. She also considered it had misled her about the type of education it would be providing to K.
22. The school contacted Miss B to advise that it had been unable to find suitable alternative provision for K, and so it had made changes to its provision to help meet his needs in the interim.
23. Miss B had lost trust in the school and decided that she did not want K to return.
24. The Council arranged alternative education for K in October, but Miss B refused it because she did not consider it was suitable.
25. Miss B accepted alternative education offered in November 2020. In June 2021, the provider achieved school status. K now has a permanent placement at the school.

Analysis

Breakdown of placement

26. When the Council consulted the school in February 2020, it sent the school a copy of K’s final EHC plan from October 2019, along with the annual review paperwork from January 2020. It included an Occupational Therapy report which said that K had been referred to physiotherapy for advice due to concerns about K’s ankles and his difficulties walking distances. A physiotherapy report was obtained in January 2020 which provided further details about K’s physical difficulties, but it was not included with the paperwork sent to the school.
27. The Council accepts that the omission of the physiotherapist’s report was a contributing cause to the breakdown of the placement as it was the lack of relevant information regarding K’s physical skills which led to him being placed in a more active and outdoor class which was not suitable to meet his needs.
28. The Council should have provided a copy of the physiotherapist’s report when it consulted the school. Its failure to do so contributed to the breakdown of the placement.

Alternative education

29. K was offered interim provision by the school on 28 September 2020, but Miss B refused to allow K to return.
30. Where a parent is refusing to send their child to school, councils have to decide whether to enforce attendance through legal proceedings. If they decide not to do so, they have a duty to provide alternative education. Councils must also continue to secure the special educational provision in the child’s EHC plan while they are out of school.
31. The Council decided to arrange alternative education for K on 5 October 2020 and it was approved on 14 October. Alternative provision was then offered on 19 October. I do not consider there were any significant delays by the Council here.
32. Miss B refused the alternative education offered because she did not consider it was suitable and she felt the provider had not properly considered if it could meet K’s needs. The Council considers the provider would have been able to deliver most of the provision in K’s EHC plan. But it accepts that the provider would not have been able to deliver all of the provision because K would not have been learning in a school setting and would not have had access to a sensory room.
33. The alternative education offered would have met most of K’s needs. But it did not include all the provision in K’s EHC plan, which the Council had a duty to provide. The Council did not offer alternative education which could deliver all the provision in K’s EHC plan until 16 November 2020. This was fault.

New placement

34. The Council’s records show that it did not formally consult any schools to source an alternative permanent placement for K until several months after his placement broke down in September 2020. The Council consulted one school in March 2021 and several other schools in May 2021.
35. Miss B told the Council that she wanted K to remain with his alternative education provider once it gained school status. It opened as a school on 28 June 2021. The Council consulted the school the previous week and agreed the placement on 8 July.
36. K did not have a permanent placement between September 2020 and July 2021. I consider the Council delayed sourcing a permanent school placement for K. This was fault.

EHC plan

37. Where a council proposes to amend an EHC plan, 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.
38. Following representations 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 quickly as possible and within 8 weeks of the original amendment notice.
39. In this case, the Council decided to make changes to K’s EHC plan when it was reviewed on 23 October 2020. It then issued an amended draft EHC plan on 11 December 2020, but it failed to issue a final EHC plan.
40. A further annual review meeting was held on 27 September 2021, and it was decided to make further changes to K’s EHC plan. The Council says K’s final EHC plan was issued on 30 December 2021.
41. The Council identified that changes needed to be made to the plan, but significantly delayed making the required amendments and issuing a final EHC plan. This was fault.

Communication

42. The Council accepts there has been a lack of timely, effective communication with Miss B. This is fault. The Council has apologised to Miss B, explained the reasons, and provided details of the actions it is taking to improve its service.

Injustice

43. I have considered how Miss B and K have been affected by the failings identified.
44. I consider the breakdown of the placement in September 2020 contributed to K being out of education for two months and would have caused K and Miss B significant distress. I recognise that provision which would meet most of K’s needs was offered during this period. However, if there had been no fault, K would have had a settled permanent school placement from September 2020 and would not have needed alternative education. The Council’s subsequent delay in securing a permanent place for K would have added to their distress.
45. The Council’s significant delay in amending K’s EHC plan will have caused Miss B frustration. But I have seen nothing to suggest it has resulted in K’s special educational needs not being met.

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Agreed action

46. Within four weeks, the Council will take the following actions:
• Apologise and make a payment of £250 to Miss B to recognise her distress and the time and trouble she has been put to as a result of the failings in this case.
• Apologise and make a payment of £600 to Miss B to recognise K’s distress and the impact on his education caused by the failings in this case. This payment should be used to benefit K’s education.
47. Following an Ofsted inspection which highlighted significant areas of weakness by the Council, Ofsted required the Council to produce a written statement of action setting out the steps it will take to improve SEND services. The statement of action was submitted to Ofsted and the CQC in December 2021. As the Council has already agreed to take this action, I have decided it is not necessary to recommend any service improvements.

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Final decision

48. I have completed my investigation and uphold Miss B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman