Summary: There was fault in the Council delaying arranging suitable alternative provision for a child out of school, and not bringing forward an annual review of an Education, Health and Care plan (EHCP). There was also fault it did not issue a final EHCP after the review within required timescales. The faults caused Mrs X and their child an injustice because of the uncertainty about future special education provision, and the lost education. The Council have already made an offer of a remedy for this injustice to Mrs X’s child, and it has agreed to my further recommendations to fully remedy the injustice I saw.

The complaint

1. Mrs X complained the Council did not do enough to ensure her child (Y) received suitable alternative provision (AP) while they were not in school, including the special education provision (SEP), they were due in line with their Education, Health and Care plan (EHCP).
2. Mrs X also said the Council took too long to finalise Y’s EHCP after an annual review in 2022.
3. Mrs X said this had a significant impact on Y’s development and caused a deterioration in their mental well-being. Mrs X said the Council’s actions caused her family distress.

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The Ombudsman’s role and powers

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 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I spoke to Mrs X and considered the documents she provided.
8. I considered the documents the Council sent to me.
9. I considered relevant law and guidance.
10. Mrs 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

What should have happened

11. 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.
12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after it sends the decision letter. R (L, M, and P) v Devon County Council [2022] EWHC 493
14. 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)
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.

What happened

16. In January 2022, Y’s school completed an annual review in support of their EHCP.
17. In early July, Mrs X told the Council that Y’s school was no longer a suitable placement. She said Y had been reluctant to go there because of a change in staff and had not been attending since the beginning of April.
18. The Council told Mrs X, it could not consider a new placement until September, because of the high demand for placements. The Council did not consider the provision the school were providing Y at that point.
19. In mid-September, the Council held Y’s annual review, which it brought forward from January 2023. It also agreed to try and find Y an alternative placement. Y’s current school agreed it would appoint a teaching assistant (TA), to support them coming back to school as part of a transition arrangement. Around this time, the Council consulted with several education placements.
20. In November, Mrs X told the Council Y had not yet gone back to school and the transition arrangement was not working in their view. She also asked it to consider a home tutor as part of an education other than at school package (EOTAS).
21. In December, the Council agreed to fund ten hours per week education provision and said it tried to find a tutor for Y. In late January 2023, the Council then agreed an EOTAS package as part of Y’s EHCP.
22. Mrs X told me in February, she told the Council about a tutor she had found, because the Council had still not found anyone suitable by that point.
23. In mid-May, the Council finalised Y’s EHCP. It highlighted Y was receiving ten hours per week as part of an EOTAS package up until July 2023, and from September onwards, it named a specialised provision for Y.
24. Mrs X said she did not appeal the EHCP. She told me the tutor that was delivering provision to Y at home from February onwards, could not fully support them and the tuition stopped after less than two months. She also said Y had very limited provision beyond that point, until they started at their new school in September.

Complaint to the Council

25. In early March, Mrs X complained. In its first stage letter, the Council accepted fault in the handling of Y’s case, specifically;
• it had not acted promptly to review Y’s EHCP when aware they had not been attending school;
• there had been procedural errors and a delay in issuing Y’s amended EHCP.
26. In its second stage reply, the Council said part of what it told Mrs X in its first reply was wrong. It clarified the dates of when Y’s new school had agreed a placement. It also clarified the dates of when it had agreed funding for education for the EOTAS package. It also accepted there had been a delay in Y’s AP starting.
27. Mrs X asked the Council to consider her complaint at its final stage. The Council replied saying it would not review her case, but said;
• there had been delays in it obtaining suitable education for Y;
• it had identified learning from Y’s case;
28. The Council also apologised it had not considered a financial remedy in either of its earlier responses. It offered Mrs X a symbolic payment of £6000, it said, to recognise the loss of Y’s education.

My findings

29. The Council was at fault for not calling for an early annual review when it became aware Y was not attending school from April 2022. It has accepted this and apologised for its lack of action.
30. Furthermore, it did not assess Y for AP and that too is fault.
31. After it holds an annual review, the Council should issue a final EHCP within 12 weeks. This meant the Council should have issued Y’s EHCP by mid-December.
32. It did not do so until mid-May, which was very late and is fault. The Council also accepted it was at fault for the delays in issuing Y’s EHCP and apologised to Mrs X.
33. The Council initially gave Mrs X wrong information about the outcome of consultations with Y’s new school. This was a fault in communications. I note it clarified the information in its next reply.

The injustice to Mrs X and Y

34. The fault in not considering AP when it became aware there was an issue in July, caused an injustice to both Mrs X and Y. It caused Mrs X further uncertainty about Y’s education. It also represented a lost opportunity for Y because this delay led to further delays in the Council considering it and the provision starting. This meant Y had very limited provision over three academic terms.
35. I note the Council earlier offered Mrs X a remedy and shown it properly considered our guidance on remedies. Mrs X told me she felt this offer meant the Council were evading taking accountability for the faults. I find this is an acceptable remedy for the injustice to Y in recognition of lost education provision and is in line with our guidance.
36. Mrs X said, because the Council delayed Y’s annual review until the new academic year, this limited the placements, which may have otherwise been available. I cannot make a finding on what the outcome may have been, if but for delays. However, the delay here caused Mrs X an injustice because she now has uncertainty about the provision that may have been available to Y, had the Council responded sooner.
37. Similarly, the fault in issuing the final EHCP outside of the statutory time limits caused Mrs X an injustice, because it left her with uncertainty for longer than needed, about what Y’s future provision would be.
38. There was also fault in the complaint handling, and this caused Mrs X an injustice because she believed a placement had agreed a place, much earlier than she was aware, and this caused her distress through further uncertainty.
39. For what I saw as unremedied injustice, that which I have described at paragraphs 36-38, the Council have agreed to my recommendation of an appropriate remedy here.

Service improvements

40. Mrs X highlighted in her complaint to us, she was unsure whether the Council would properly consider learning in this case, in line with its earlier replies to her complaint. The Council have agreed to my recommendations which takes account of this.
41. In 2022, we issued a focus report titled ‘out of school, out of sight?’, which highlighted learning from our investigations involving children not at school. It also contains guidance on how we expect Councils to respond in such cases.
42. In June 2023, we made service improvement recommendations to this Council, about EHCP timeliness and how its caseworkers keep in touch with families. The Council recently wrote back to us with its action plan, setting out the additional training it has put in place for its SEN team. I have read this and am content there are no other service improvement recommendations now needed.

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Agreed action

43. Within one month of the date of my decision, The Council have agreed to;
• make a symbolic payment of £6000 in line with its earlier offer to Mrs X, which is for Y, to recognise the loss of their education;
• pay Mrs X £100 for the distress it caused her because of uncertainty;
• ensure its SEN caseworkers have read our focus report (out of school, out of sight?).
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman