Summary: Ms Y complains the Council took too long to amend and issue an EHC Plan for her grandson, B, following an annual review. She also says the Council did not put alternative education provision in place for B when he was unable to attend the school named in his EHC Plan. We have found the Council at fault. We have made recommendations to remedy the injustice caused.

The complaint

1. Ms Y complains about how the Council responded to a request to reassess her grandson B’s Education, Health and Care (EHC) Plan. Ms Y also says the Council has not provided alternative education provision when requested and has not communicated effectively with her about this matter.
2. Ms Y says this has led to B losing education and support. She is seeking a resolution from the Council.

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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)

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How I considered this complaint

4. I considered information provided by Ms Y and discussed the complaint with her.
5. I considered the Council’s response to my enquiries.
6. Both Ms Y and the Council had an opportunity to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation and guidance

Education, Health and Care Plans

7. A child with special educational needs (SEN) 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
9. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Annual reviews

10. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
11. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
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. 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)
14. 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)

Alternative education provision

15. 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.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
17. 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)
18. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
19. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
21. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

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What I found

What happened

22. Below is a summary of the events leading to this investigation. It is not an exhaustive chronology of every exchange between the parties involved.
23. In July 2021, the Council issued a final EHC Plan for B. In September 2021, B started attending School Z in Year 7. The available evidence suggests B struggled to settle in School Z, only attending three days.
24. In October 2021, an early annual review of B’s EHC Plan took place between the Council, School Z and Ms Y. The minutes of this meeting show:
1. B attended School Z for only three days and then withdrew, as he found the environment difficult.
2. Ms Y felt the school environment was not suitable for B and the EHC Plan did not reflect his needs. Ms Y said she wanted B’s EHC Plan to be amended.
3. School Z outlined some possible alternatives, including an Education Other Than At School (EOTAS) package. Ms Y expressed some reservations about the pressure this would place on her to plan the provision. School Z and the Council said they would offer support.
4. An action plan was agreed by all parties. An educational psychologist would assess B and provide a report to the Council, along with the minutes of the review meeting. School Z would also send Ms Y details about alternative provision. B would remain on the roll at School Z until an amended plan was agreed, with work being sent home for B to complete in the meantime, with support from Ms Y.
25. After the meeting, Ms Y wrote to the other attendees. She said she supported the action plan and an EOTAS package would take some time to research and put together. She said she had read about alternative provision and said she would like B to have a chance to pursue this. Ms Y queried how alternative provision worked. Ms Y did not receive a response.
26. In November 2021, an educational psychologist carried out an assessment with B. In December 2021, Ms Y wrote to the Council, seeking a review of B’s EHC Plan. In her email, Ms Y:
1. said B had not been able to attend full-time education consistently for several years, even with an EHC Plan in place.
2. said B would benefit from an EOTAS or alternative provision package, which could be more flexibly delivered according to B’s needs.
3. said while B’s EHC Plan had some good elements, these could not be utilised if B could not attend the school environment. Ms Y said the Council needed to update B’s plan, with a greater focus on the setting and how it affected him.
27. In February 2022, Ms Y complained to the Council. Ms Y reiterated points she made previously and said B was not receiving any alternative provision, even though she had asked School Z and the Council for support. Ms Y also said her emails were not being responded to, with there being no response to her email in December 2022.
28. The Council responded to Ms Y’s complaint at stage one of its complaints procedure. In its response, the Council:
1. said B’s attendance at School Z had decreased and he was no longer able to attend.
2. said it had not received from School Z the annual review paperwork from the meeting held in October 2021.
3. acknowledged the annual review process had breached the timescale set out in the Children and Families Act 2014.
4. said it had worked with School Z to identify alternative provision to support B’s access to education. It said B would also be provided with remote online learning while unable to attend school, and that work packs had been provided.
5. proposed an amended EHC Plan would be sent to Ms Y without delay, once the Council had received and reviewed the relevant paperwork.
6. said it was working with parents and providers to develop information about EOTAS packages for children with an EHC Plan. It said this had become an emerging issue for children and young people, particularly with school closures caused by COVID-19.
7. agreed it had not delivered the education provision set out in B’s EHC Plan in a timely way. The Council upheld Ms Y’s complaint on this basis.
29. Ms Y asked the Council to escalate her complaint. She said she was unclear how the Council would address its failure to complete the review process within a reasonable period. She also did not know what the Council would do to address B’s lack of education, as a child with an EHC Plan who was unable to attend school.
30. In the same email, Ms Y:
1. said B had received paper-based schoolwork only once in the first academic term, in September 2021.
2. said she had been asked to pick up a laptop in the last week of the second school term, which would allow B to access lessons remotely, but this did not work. She said she had told School Z about this, but had since received no feedback.
3. said she had received no work for B to complete in the third term.
4. said she had asked for alternative provision while B could not attend a mainstream school, but had not received this.
5. said she was concerned it would be difficult for B to catch up with lost education and noted the Council continued to exceed the annual review timescales.
31. In April 2022, the Council responded to Ms Y’s escalated complaint. In its response, the Council:
1. confirmed it had now received the annual review paperwork from School Z and proposed an amended EHC Plan would be sent to Ms Y shortly. There would then be a co-production meeting with all parties to discuss the most appropriate educational placement for B.
2. said it understood Ms Y wanted to discuss an EOTAS package for B, but it was important to consider all options at the co-production meeting and to take account of B’s views.
32. The Council issued an amended draft EHC Plan in late April 2022. Ms Y responded in early May 2022, advising she was unhappy with the content and wished for B to be educated via an EOTAS package.
33. In May 2022, School Z made a referral for alternative provision to School X, which arranges the Council’s alternative provision. In its email, School Z:
1. mentioned B’s limited attendance and said there was discussion about how best to address B’s educational needs. It referenced the possible EOTAS package.
2. said the Council had asked School Z to apply for alternative provision through School X, due to delays in the process. School Z said it hoped this could speed the process up and said the Council would need to forward B’s EHC Plan separately, as it was being amended.
34. In July 2022, alternative provision was set up for B. Ms Y told me B was able to complete the induction and access lessons in English, Science and Maths remotely during the final week of the academic year.
35. The Council said Ms Y requested a personal budget in August 2022 to fund an EOTAS package for B. It said it agreed a personal budget in September 2022, with B’s final EHC Plan being issued the same month. Ms Y told me a reassessment of B’s needs is planned before the end of 2022.

Analysis

Delay in amending and issuing EHC Plan

36. Following the annual review meeting, the Council was required to formally notify Ms Y of its decision to amend B’s EHC Plan. This decision comes with a corresponding right of appeal to the SEND Tribunal. The Council did not provide this formal notification, which is fault. However, I do not think this caused Ms Y or B an injustice. This is because it was clear to all parties at the meeting that the Council intended to amend B’s EHC Plan and so the lack of formal notification in this case did not affect what followed.
37. In its response to Ms Y’s complaint, the Council accepted it had exceeded the timescales set out for the annual review process. In its response to my enquiries, the Council said it had been waiting for the minutes of the annual review meeting held in October 2021. It said it received the educational psychologist’s report in December 2021 and the minutes of the review meeting from School Z in February 2022.
38. Councils are required to begin the process of amending an EHC Plan without delay. While schools will often hold the annual review meetings on a council’s behalf, the council remains responsible for the administration of the review process. I have seen no evidence the Council took action to obtain the minutes of the annual review meeting from School Z between October 2021 and February 2022.
39. The Council did not issue a draft amended EHC Plan until the 25 April 2022, approximately 28 weeks after the annual review meeting. I believe there were avoidable delays in the time taken to provide notice of the proposed changes and the Council could have provided Ms Y with a draft plan much sooner. The Council retains overall responsibility for this process and I have therefore found the Council at fault for the delay in amending the EHC Plan.
40. Councils are supposed to issue final amended EHC Plans within eight weeks of providing notice of the proposed amendments. The Council issued B’s final amended EHC Plan approximately 20 weeks after sending Ms Y a copy of the draft amended plan. I have found the Council at fault for this delay.
41. I believe these faults caused Ms Y an injustice. The time taken to complete the review process and issue a final amended EHC Plan caused avoidable frustration and uncertainty. It also meant that Ms Y did not receive her right of appeal at the correct point in the process.

Alternative provision

42. A council’s duty to arrange suitable education for children out of school is outlined in paragraphs 15 to 21.
43. I asked the Council how it had considered this duty in relation to B. The Council told me it did not consider its s19 duty had been triggered in this case. It said it had received no medical evidence that B was unable to attend School Z. It said it had, in any event, remained in dialogue with School Z to understand the education offer it was providing to B and how it was supporting B back into school. It said B was completing online learning and work packs throughout his time away from the school setting.
44. In comments about the annual review meeting held in October 2021, the Council said:

“The local authority met with Ms Y… along with School Z, where she stated that she would like to consider an EOTAS package for B. Ms Y did not want to consider alternative provision in the meantime for B”

45. I have seen no evidence the Council actively considered whether B was medically able to continue at school. I have also seen no evidence the Council took steps to liaise with medical professionals to clarify this, as outlined in the statutory guidance set out in paragraph 19.
46. The minutes of the annual review meeting show the Council was aware from at least the 13 October 2021 that B had only attended School Z for three days in September 2021. Contrary to the Council’s response to me, the evidence shows Ms Y wrote to both School Z and the Council after this meeting to ask about alternative provision for B. Ms Y did not receive a reply to this email. Ms Y also raised this issue directly again in December 2021 and did not receive a response.
47. When Ms Y made a formal complaint in February 2022, she said B had not received any alternative provision. In its response, the Council accepted B was unable to attend School Z. It accepted it had not fully secured the education provision listed in Section F of his EHC Plan and said it was working to identify alternative provision to support B’s access to education. It mentioned online and remote learning being made available. Ms Y asked the Council to address B’s lack of education when she escalated her complaint further, but the Council did not mention alternative provision in its final complaint response.
48. The Council has not provided any evidence to show how it liaised with School Z about the provision it was giving to B during this time. The Council said it did liaise with School Z about B, but it was not possible to document each ad-hoc meeting between School Z and its officers. Ms Y told the Council that B received paper-based work once in the first term of school. She said she was asked to pick up a laptop at the end of the second term, so B could access remote learning, but the laptop did not work. Ms Y said she raised this as an issue with School Z, but did not receive a reply. She says in the third term, B did not receive any work at all, until remote access to lessons was arranged in the final week before the holidays.
49. As outlined in paragraph 33, School Z made a referral for B to receive alternative provision in May 2022. In its email, it said it had made this referral at the Council’s request. In Ms Y’s description of events, B receiving full access to remote learning at the end of the school year coincides with this referral.
50. I have therefore concluded:
1. The Council was aware from at least the 13 October 2021 that B had been away from school for more than 15 days.
2. The Council did not receive, nor seek to obtain, any medical evidence to guide its decision-making about B’s absence and the provision he needed. Nonetheless, it’s complaint responses show it accepted B could not attend School Z and that alternative provision would need to be put in place. It also accepted it had not secured the provision in Section F of B’s EHC Plan.
3. School Z sent B some work to complete at home, but the Council did not consider whether this was the equivalent of suitable, full-time education for B. This was despite Ms Y highlighting her concerns about B’s lack of education more than once.
4. The Council did not ensure a referral for B for alternative provision was made until the final term of the academic year.
51. For these reasons, I have found the Council at fault for not properly considering its duties to arrange alternative education provision under section 19 of the Education Act 1996.
52. I believe this fault caused B an injustice. B missed out on education and the additional support he was supposed to receive because of his EHC Plan during the 2021/22 academic year.

Communication

53. The Council did not respond to correspondence from Ms Y at critical points in the process. It also delayed issuing its final complaint response to Ms Y and did not fully address the substance of her complaint when doing so.
54. I have found the Council at fault for its communication with Ms Y. This caused Ms Y avoidable frustration and inconvenience.

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Agreed action

55. Where fault has resulted in a loss of education provision, the Ombudsman’s Guidance on Remedies recommends a figure of between £200 and £600 per month to remedy that loss. It says the recommended figure should 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 the period affected was a significant one in a child’s school career – for example, the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
56. I have considered the Guidance on Remedies when making the following recommendations. Particularly, I have considered that B was a child in his first year of secondary education, with an EHC Plan, who did not receive suitable provision for this period.
57. Within four weeks of the final decision being issued, the Council has agreed to:
1. apologise in writing to Ms Y for the faults and injustice identified in this statement.
2. pay Ms Y £3200 in recognition of B’s lost education provision. This is a figure of £500 per month for the 2021/22 academic year, minus the school holidays. Ms Y may wish to use this payment towards B’s educational benefit.
3. pay Ms Y £200 in recognition of the avoidable frustration and distress she experienced.
4. remind officers they should consider liaising with medical professionals where this is necessary to determine if a child can attend school, in line with statutory guidance.
5. remind officers of the Council’s responsibility, under Section 19 of the Education Act 1996, to ensure children out of school receive full-time education provision, or the provision that is assessed to be in the child’s best interests.
58. Within eight weeks of the final decision being issued, the Council has agreed to:
1. produce an action plan, setting out the steps it will take to make sure it receives information needed to complete an annual review within the statutory timescales.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation with a finding of fault by the Council, causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman