Summary: Mrs Y complains the Council failed to review her daughter’s Education, Health and Care (EHC) Plan and provide suitable alternative educational provision when her placement broke down. The Ombudsman finds the Council at fault for failing to complete the Annual Review process and to fully assess whether the alternative provision provided was suitable. This caused B and Mrs Y distress and confusion, and delayed Mrs Y’s appeal rights to the SEND Tribunal. To remedy this injustice, the Council has agreed to: apologise to Mrs Y and B, issue B’s final EHC Plan, make a payment to them and make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Mrs Y, complains that the Council has:
1. failed to provide her child, B, with a suitable education since October 2019;
2. failed to review her child’s Education, Health and Care Plan which was due in October 2019; and,
3. failed to properly respond to her complaint and handle it in a timely manner.
2. Mrs Y says her child has missed out on an education since October 2019 and is still without a school place. She says that she and her child have experienced stress because of this, which has negatively impacted both of their physical and mental health. Mrs Y says the situation has affected her and her husband’s work as their child is now at home exclusively and needs company at home.
3. Mrs Y says she has gone to time and trouble complaining.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)

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How I considered this complaint

9. I considered the information and documents provided by Mrs Y and the Council. I spoke to Mrs Y about her complaint.
10. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
11. 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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What I found

Legal and administrative background

Children with special educational needs

12. A child with special educational needs may have an Education, Health and Care Plan (EHC Plan). This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated.
13. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. (Children and Families Act 2014, section 42) 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.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan.
15. The Coronavirus Act 2020 temporarily amended the absolute duty to make the special educational provision in an EHC Plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.

Annual reviews

16. Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational provision and educational placement is still appropriate. The annual review is not complete until the council has decided to either: maintain the plan; cease the plan; or amend the plan.
17. Within four weeks of a review meeting, a council must notify the child’s parents of its decision to maintain, amend or discontinue the EHC Plan. (Special Educational Needs and Disability Regulations 2014, Section 20 (10))

Education for children who cannot attend school

18. Councils have a legal duty to arrange suitable education at school or otherwise for pupils who, because of illness, exclusion or any other reason, may not receive suitable education without such arrangements being made. (Education Act 1996, Section 19). “Any other reason” includes circumstances when the placement breaks down or the child refuses to go to school.
19. The Coronavirus Act temporarily removed this duty where the school or year group concerned was given a directive to close. (Coronavirus Act 2020, schedule 16)
20. 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))
21. The alternative education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. Government guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children who are out of school because of their physical or mental health. It states councils should:
1. have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy should make links with related services in the area, such as the Special Educational Needs and Disability Service and Children and Adolescent Mental Health Service (CAMHS);
2. have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
3. not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
23. It also states 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.
24. Government guidance, ‘Alternative Provision 2013’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
25. The Ombudsman issued a focus report in 2011, “Out of sight…. out of mind?” (as amended in January 2016). This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations including that councils:

• consider the individual circumstances of each case and be aware that they may need to act whatever the reason for absence, even when a child is on a school roll;
• consult all professionals involved in a child's education and welfare;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• act without delay to ensure the child is back in education as soon as possible.

26. The report says councils should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

27. Mrs Y’s daughter, B, is autistic and has generalised anxiety disorder. She has an Education, Health and Care (EHC) Plan.
28. School W is named in Section I of B’s EHC Plan from 2017.
29. In June 2018, B began receiving part of her special education provision (in Section F of her EHC Plan) at an educational centre, Centre X. This was arranged by School W. Centre X is a private limited company that aims to provide alternative provision for children and young people who are struggling in or excluded from school, or those awaiting a suitable education placement.
30. In October 2019, B’s placement at Centre X broke down.
31. Following this, the Council held a meeting with B’s parents (Mrs Y and her husband). This was an Annual Review meeting of B’s EHC Plan and School W’s Special Educational Needs Co-ordinator (SENCO) attended. The Council also obtained information from the Headteacher of School W.
32. During the Annual Review meeting, the Council recorded that:

• B’s parents thought B had been “excluded” from Centre X;
• B’s parents did not think Centre X was fully meeting B’s special educational needs. They said unexpected changes to B’s timetable and setting had caused her to feel like an inconvenience there; and,
• both B’s parents and School W thought B would progress better outside of a mainstream school setting. B’s parents provided the Council with a list of possible placement options.

33. In January 2020, B’s parents complained to the Council.
34. The Council sent B’s parents an acknowledgment email.
35. A few weeks later, the Council wrote to B’s parents to say:

• Centre X was provided as alternative provision because B was struggling to attend School W;
• B’s “placement” at Centre X ended because it “ultimately failed to meet (B’s) needs”. The Council said, as Centre X was an independent provider of educational provision, the decision to end the placement was outside of the Council’s control;
• B continues to be on the roll at School W. School W was looking into alternative provision for B; and,
• the Council was looking into identifying an alternative placement to School W. It said details of a possible alternative placement would be sent to B’s parents within the week.

36. In February, the Council wrote to B’s parents to say:

• it had explored certain provision for B with her parents, but the possible provision available was limited due to B’s access to transport. This was because it said B would have to rely on her parents for transport to such potential provision;
• however, it said it had decided a different school, School G, was able to meet B’s needs. The Council said an officer was in contact with B’s parents to plan this transition; and,
• it apologised for the family’s experience with Centre X. However, it said it was School W’s responsibility to satisfy itself as to the suitability of such provision and monitor progress.

37. At the beginning of March, B’s parents chased the Council for a response to their complaint.
38. The Council replied to say its correspondence from January and February were its complaint responses.
39. B’s parents replied to say they disagreed the two pieces of correspondence provided a response to the complaint. They said they had expected a Council officer to contact them to discuss how the situation could be remedied. They said the Council had failed to investigate their concerns that their daughter had been without education for over three months.
40. In May, the Council wrote to B’s parents to say it was dealing with their complaint under the review stage of its complaints process. It said a manager, who was independent of the service complained of, would review the complaint. It said it would be in touch once a manager had been allocated. The Council explained COVID-19 had caused some disruption to the Council’s complaints handling service, which was why there had been a delay in responding.
41. In September, in response to an enquiry from the Ombudsman, the Council confirmed the complaint was still at the review stage.
42. In December, B’s parents met with a Council officer in its SEND (Special Educational Needs and Disability) inclusion team. They explained why they were unhappy with the Council’s actions so far and the impact the situation was having on B and themselves. During this meeting, B’s parents said:

• they felt frustrated and let down by the Council because their daughter, B, had never had the opportunity to be in a classroom at secondary school. They said B had missed out on a proper education for three years;
• they felt B had been forgotten about;
• they felt they had been left on their own. Both parents work and have found the ending of B’s provision at Centre X very difficult;
• they thought B’s alternative provision was a “remote creche … (with a teacher who was) primary trained not secondary … (and was) not working at B’s level”;
• B’s anxiety was so severe that she could not leave the house. Her home and her grandmother’s home were the only places she felt safe, but her parents were struggling to take her out for a walk;
• they felt they were having to source all B’s educational provision, both in terms of her current provision and when she attended Centre X. They asked the Council to explain to them what options were available for B, who they said needed one-to-one tuition due to her anxiety and autism;
• B’s EHC Plan was out of date. It had been reviewed last October but still had not been amended; and,
• the Council had failed to consider B’s need for one-to-one tuition with a qualified teacher in maths, English and science.

43. In January 2021, the Council sent Mrs Y a copy of B’s draft amended EHC Plan. The Council said in the draft:

• B’s parents “are responsible for the EOTAS (Education otherwise than at School) package and for B's attendance at the provision”, and
• the Council will monitor the provision by regular updates from both providers of it and regular monitoring visits by a Council representative.

Analysis – was there fault by the Council causing injustice?

The Council’s failure to provide suitable education

44. Mrs Y complains that the Council has failed to provide her child, B, with a suitable education since October 2019 (part a of the complaint).
45. The law is clear that councils have a legal duty to arrange suitable education at school or otherwise for pupils who, because of illness, exclusion or any other reason, may not receive suitable education without such arrangements being made. (Education Act 1996, Section 19). “Any other reason” includes circumstances when the placement breaks down or the child refuses to go to school. Based on the evidence I have seen, this legal duty of the Council was triggered in October 2019 when B’s provision at Centre X broke down and she was not able to attend School W.
46. In my view, the Council failed to fully assess and arrange suitable education for B following the placement breakdown. This is based on the following reasons:
1. from December 2019, the Council arranged certain alternative provision for B that consisted of 15 hours per week with an online education provider alongside “some time” each week at a local riding school. In April 2021, the 15 hours per week with the online education provider was reduced to 10 hours per week. This was because the Council agreed to B’s parents’ request that she receive some provision through a virtual academy also. Based on the Council’s Annual Review records from October 2019, the Council’s decision to approve certain provision requested by B’s parents and its response to my enquiries, it is not clear how the Council satisfied itself B would be receiving an Education otherwise that at School (EOTAS) that was suitable to her age, ability and aptitude and her individual special educational needs (Education Act 1996, section 19(6));
2. Government guidance, ‘Alternative Provision 2013’, says the provision should generally be full-time unless it is not in the child’s best interests because of their physical or mental health and should enable the child to achieve good educational attainment on par with their mainstream peers. When part-time provision has been provided, this should generally be: on a temporary basis, for exceptional and documented reasons, and part of a programme to return the child to full-time education (as per the Ombudsman’s published guidance on remedies). Based on the evidence I have seen, the Council did not assess whether the alternative educational provision it put in place for B was in line with this guidance. The Council provided virtual learning to B, but this can only be used to support direct teaching, not as a full or part-time alternative. The Council failed to demonstrate how it considered this provision was “on par” with what is offered in school. That would mean direct teaching in any school setting;
3. based on the evidence I have seen, the Council agreed to certain provision that B’s parents had found and requested. However, this decision was made without the Council consulting all professionals involved in B’s education and welfare. Specifically, during the October Annual Review meeting, it failed to consult medical professionals involved in B’s education, such as the educational psychologist or her GP. The Council also failed to demonstrate how it considered whether or not a planned and strategic approach might be possible to give effect to B’s wish to “be back at school”;
4. the Council is responsible for securing and funding the alternative educational provision. However, in February 2020, the Council wrote to B’s parents to say it had explored certain provision for B with her parents, but the possible provision available was limited due to B’s access to transport. This was because it said B would have to rely on her parents for transport to such potential provision. The Council failed to provide B’s parents with advice on how and whether it could fund B’s transport to this potential provision;
5. the Council failed to consider the social care needs of B and the needs of B’s parents during B’s extended absence from a school setting. Based on the evidence I have seen, the Council has never sought advice and information from its social care team or carried out a social care assessment for B. This is fault; and,
6. at the end of June 2020, School G told the Council it would close permanently, meaning this placement was no longer secure. The Council said the closure of School G meant B did not have a school placement to go back to after this point. I am not satisfied with the Council’s response here. Given B’s placement had fallen through, the Council should have carried out an urgent review or reassessment of B’s needs. It has failed to demonstrate how it made its best endeavours to achieve this between the end of June and 25 September 2020 (after which point the specific timescales set out in the SEND Code of Practice for carrying out reviews or reassessments were reinstated).
47. The Council’s fault here caused B distress and uncertainty. It meant that, instead of receiving an alternative education at the earliest possible time, B’s case was left to drift. This covered a significant time period from October 2019 to March 2020 and end of July 2020 to end of March 2021, during which B missed out on a full package of suitable alternative educational provision. In response to the draft decision that I sent, however, the Council provided evidence of how had it had implemented the type of reintegration programme described in paragraph 46(b) above from Summer term 2021. This is why I have not found the Council at fault for the Summer term 2021.
48. As explained in paragraph 19 above, the Coronavirus Act temporarily removed the Council’s duty to arrange suitable alternative provision where the school or year group concerned was given a directive to close. The Ombudsman considers 23 March 2020 as the relevant date this measure applied from. From 31 July 2020, the Council’s absolute duty to arrange special educational provision was reinstated. I, therefore, do not find the Council at fault for not providing a full package of suitable alternative provision during this period. However, the Council should have explored what provision could have been arranged during this period. This is fault. The Council’s failure to do so caused B uncertainty about whether she would receive any such provision, however limited.
49. The evidence shows B’s parents went to significant time and trouble researching possible suitable alternative educational provision for B during this time. However, the duty is for the Council to secure and decide this, as well as to assess what alternative educational provision can be provided.
50. On balance, I find the Council’s failures here, including to assess Mrs Y’s carer needs during B’s extended absence from a school setting, is likely to have significantly affected Mrs Y’s ability to work and her family relations. I find this also meant the Council failed to have due regard to its duties under Article 8 of the Human Right Act 1998 to respect Mrs Y and B’s right to respect for their private and family life. In my view, if the Council had assessed B and Mrs Y’s potential social care needs following B’s breakdown in her placement, then it would have been able to decide how it could promote good family relationships between them now B was at home. It is likely this affected B and Mrs Y’s personal relationships with each other.

The Council’s failure to review the Education, Health and Care Plan

51. Mrs Y complains that the Council has failed to review her child’s Education, Health and Care (EHC) Plan, which was due in October 2019 (part b of the complaint).
52. In October 2019, the Council held an Annual Review meeting of B’s EHC Plan. Based on the evidence I have seen, B’s parents, officers from the Council’s Specialist Teaching Advisory service and School W’s Special Educational Needs Co-ordinator (SENCO) attended the meeting. The Council separately obtained information from School W’s Headteacher before the meeting. However, the Council failed to invite a Council social care representative to the meeting (as required by the Special educational needs and disability code of practice: 0 to 25 year (the Code) (January 2015, as amended), including when the child is not attending a school). This is fault. This meant B missed out on key input and advice from a social care professional.
53. The Council stated, in the form completed during the review meeting, that it recommended to maintain B’s EHC Plan, with School W continuing to be B’s named placement in Section I of the Plan. It said that both B’s parents and School W agreed that B would not be comfortable with a placement at a mainstream school. This form was signed by Mrs Y one month later in November.
54. I do not find the Council completed the Annual Review process. It failed to notify B’s parents of its final decision to either maintain, amend or discontinue B’s EHC Plan (see paragraph 17 above). The form signed by B’s parents in November only provided a recommendation to maintain. In my view, this is not sufficiently clear for B’s parents to understand whether a final decision had been made.
55. If the Council had decided to maintain the 2017 EHC plan, it should have provided B’s parents with:
1. notice of their right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) and the time limits for doing so;
2. information about mediation; and,
3. information about the availability of disagreement resolution services and information and advice about matters relating to B’s SEN. (Statutory guidance: Special educational needs and disability code of practice: 0 to 25 year (January 2015, as amended), paragraph 9.176)
56. Based on the Council’s response to questions I asked, it is my understanding that it did not provide B’s parents with a decision letter following the review confirming whether it had indeed decided not to amend the EHC Plan in any way. It did not provide B’s parents with the information contained in bullet points a to c of the preceding paragraph. This is fault. The Council’s failure to complete the Annual Review and clearly communicate its decision meant Mrs Y was denied her right of appeal to the SEND Tribunal. It caused her understandable confusion and uncertainty.
57. In January 2020, the Council sent B’s parents a letter confirming B’s transfer to an independent specialist placement at School G.
58. Between February and March, B had a number of visits to School G to help her with her transition there. The Council’s actions and decisions during this time period occurred outside of the formal EHC Plan review process. This is fault. The Council decided to change B’s placement without deciding to amend her Plan. The Council told me the reason for this was because: “it appears because of the slow transition that had been requested for B for (her placement at School G) to be successful the SEND team were waiting until B was fully attending before amending the plan”. This is also fault.
59. This fault meant B missed out on having her special educational needs and provision fully reviewed by the Council to ensure it was satisfied School G could meet her needs. This included considering, for example, whether up to date advice and information from an educational psychologist and physiotherapist was needed, particularly given the last time they were consulted was in 2016 or 2017. The Council’s failure to carry out an Annual Review and follow the statutory process meant Mrs Y was denied her rights of appeal to the SEND Tribunal when B’s placement changed from School W to School G.
60. In June 2020, School G told the Council, due to COVID-19, it had to close permanently. The Council said this meant B no longer had a placement from this point onwards, which was not something it could not have foreseen. It said COVID-19 affected its ability to find a new placement for B. However, the Council did not consider carrying out a review of B’s EHC Plan or a re-assessment of B’s needs following this. I find the Council at fault here. There were clear reasons why the Council could have urgently reviewed the EHC Plan, but it failed to do so. This caused B and Mrs Y understandable distress and uncertainty. If the Council had reviewed B’s EHC Plan or carried out a re-assessment, its decision on these would have provided Mrs Y appeal rights to the SEND Tribunal. Again, she was denied this opportunity.
61. The Council did not review B’s EHC Plan until January 2021. This was following a complaint from a local MP, on behalf of B’s parents, and a meeting with a Council officer and B’s parents in December 2020 when they said:

• they felt frustrated and let down by the Council because their daughter, B, had never had the opportunity to be in a classroom at secondary school;
• B’s EHC Plan was out of date. It had been reviewed in October 2019 and it had still not been amended; and,
• they felt B had been forgotten about.

62. The Council sent B’s parents a draft amended EHC Plan in January 2021. The Council’s draft amended EHC Plan states B’s parents requested Education otherwise than at School (EOTAS). The Council separately wrote to B’s MP to say it would finalise B’s EHC Plan amendments in February.
63. In June 2021, when responding to questions I asked the Council, it said B’s EHC Plan had still not been finalised. This delay is fault. The final EHC Plan should be sent as soon as practicable and within eight weeks of the date in January when the Council sent B’s parents the EHC plan and proposed amendments. (Statutory guidance: Special educational needs and disability code of practice: 0 to 25 year (January 2015, as amended), paragraphs 9.196 and 9.197).
64. This fault has caused B and her parents distress, uncertainty and frustration. It is my understanding that B has not been on the roll at a school since summer of 2020 and this means she has been at home since this time. This meant B has missed out on having an EHC Plan in place during the 2020/21 academic year that has been informed by a completed review by the Council. The Council’s failure to issue a final amended EHC Plan during this time and to notify Mrs Y of her appeal rights meant Mrs Y was denied the opportunity to appeal the content of the Plan, the placement named in Section I or the Council’s decision about the Education otherwise than at School package.

The Council’s handling of the complaint

65. Mrs Y complains that the Council has failed to properly respond to her complaint and handle it in a timely manner (part c of the complaint).
66. When the Council acknowledged Mrs Y’s complaint, it said: the most appropriate Council officer would contact them to discuss their complaint and explore how they felt any issues could be remedied. The officer would then investigate their complaint.
67. Based on the evidence I have seen, it was not clear from the Council’s correspondence from January and February 2020 that these were its initial responses to Mrs Y’s complaint. I find the Council at fault here as it failed to follow the complaint process it had explained to Mrs Y above. It also failed to clearly respond to the two parts of her complaint, namely that the Council had failed to:

• secure suitable, full-time alternative education for B (Education Act 1996, Section 19); and
• make sure the special educational provision in her EHC Plan continued to be delivered while she was out of school.

68. This caused Mrs Y uncertainty and frustration.
69. Mrs Y clearly explained in March why she found the Council’s response unsatisfactory.
70. The Council responded to Mrs Y two months later in May. It explained COVID-19 had affected its ability to respond. However, when the Ombudsman asked the Council for an update four months later in September, it said Mrs Y’s complaint was still at the review stage of its complaints process. This delay is fault, which caused Mrs Y further uncertainty and frustration.
71. In November 2020, Mrs Y made a further complaint to the Ombudsman as she had still not received the Council review stage response.
72. In January 2021, the Council wrote to Mrs Y’s MP to provide an update on B’s case following a meeting between the Council and B’s parents in January. I do not find this response provides a final response to Mrs Y’s complaint. This is because it did not send this response to Mrs Y or explain how it had investigated her complaint. The Council failed to assess whether there was any fault by the Council causing injustice and, if so, what suitable remedies could be provided. This is fault.
73. I find this fault meant Mrs Y has missed out on the Council fully investigating her complaint and providing her with clear explanations that would help her feel listened to and understood. This caused her understandable distress and uncertainty. She went to time and trouble complaining, including through her MP.

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Agreed action

74. Within four weeks of my final decision, the Council has agreed to take the following action to remedy the injustice Mrs Y and B experienced:
1. apologise in writing to B and Mrs Y for the fault and injustice identified above in relation to parts a to c of Mrs Y’s complaint;
2. issue B’s final EHC Plan and provide clear advice to Mrs Y on her appeal rights;
3. make a payment to Mrs Y, on behalf of B, of £2,100 for the loss of educational provision from October 2019 to March 2020 and end of July 2020 to March 2021 (covering three terms at £700 per term = £2,100). This is in line with the Ombudsman’s guidance on remedies, which states: “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month (£600 to £1,800 per term) to acknowledge the impact of that loss”. When assessing the remedy, I have factored in the provision the Council put in place during this time period;
4. make a payment to Mrs Y, on behalf of B, of £300 for the uncertainty caused between 23 March to 31 July 2020 (see paragraph 48 above). This payment is in line with the Ombudsman’s published guidance on remedies; and,
5. make a payment to Mrs Y of £500 for the significant avoidable distress, uncertainty and loss of opportunity caused by the fault identified. When recommending this payment, I have considered the Ombudsman’s published guidance on remedies. This recommendation is above the Ombudsman’s usual range of £100 to £300. This is because I have factored in the Council’s repeated failure to safeguard Mrs Y’s appeal rights to the SEND Tribunal, and the fact both Mrs Y and her husband went to time a trouble complaining to the Council, including through their MP, without receiving a satisfactory response.
75. In comments made by the Council in response to my draft decision, it confirmed it had already made the following service improvement:

• reviewed its guidance to staff on the EHC Plan Annual Review process to ensure there are clear instructions to staff on the requirement to obtain information from its social care team and how to complete the Annual Review process. It has provided training to relevant staff members on this.

76. Within three months of my final decision, the Council has also agreed to make the following service improvements:
1. review its guidance to staff on the Council’s section 19 legal duty to provide suitable alternative educational provision to ensure it includes the information provided in paragraphs 18 to 26 above and refers to the guidance included there;
2. provide training to relevant members of staff on what to do when a placement breaks down and the Council’s section 19 legal duty to provide suitable alternative educational provision;
3. produce and publish a statement on how it can help children with EHC Plans who are out of school (see paragraph 22 above). I have not been able to access such a statement through the Council’s website;
4. review any other cases where Annual Reviews are currently outstanding for the 2021/22 academic year, specifically when the child or young person’s placement has broken down, and produce an action plan about how it intends to address this; and,
5. share this decision with relevant members of staff involved in the EHC Plan review process. This is to ensure learning from this decision is shared with appropriate staff.
77. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

78. I have completed my investigation. I have decided to uphold parts a to c of Mrs Y’s complaint. This is because there is fault by the Council causing her and her daughter, B, injustice. The Council has agreed to the above recommendations as suitable ways for the Council to remedy this.

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Investigator's decision on behalf of the Ombudsman