Summary: Mrs Y complained the Council failed to make proper provision for her son’s Z’s education and special educational needs. We have found fault by the Council in failing to: make all the special education needs provision and support in Z’s EHC Plan; make alternative provision for Z when he was no longer able to attend school; complete the review within the required timescales; and communicate properly with Mrs Y. These faults have caused injustice. The Council has agreed to remedy this by apologising to Mrs Y and Z, making payments to reflect the impact on Z of the missed education and full SEN support, and Mrs Y’s worry and distress, time and trouble and make service improvements.

The complaint

1. The complainant, who I am calling Mrs Y, complains the Council failed to make proper provision for her son’s, who I am calling Z, education and special educational needs (SEN). Mrs Y says the Council failed to:

• provide Z with the SEN provision in his Education Health and Care (EHC) Plan from July 2021 to October 2022;
• provide Z with a full-time education from July 2021 to May 2022;
• make alternative provision for Z when he was unable to attend school, from May to October 2022;
• tell her within four weeks of the review of Z’s EHC Plan on 28 March 2022, whether it would maintain, amend or cease his plan; and
• communicate properly with her in the period from January to April 2022.

2. Mrs Y says because of the failure to provide him with the SEN support in his EHC Plan, Z was informally excluded from school on many occasions and unable to attend certain school activities. Z was discriminated against because of his disability.
3. Z has missed out on education because of the failures. And the failure to provide full-time and alternative education has impacted on Z and the whole family’s wellbeing. Mrs Y was not able to work and had to spend time and money on assessments and educational activities for Z.
4. Mrs Y wants the Council to:

• Apologise to Z and pay financial redress for the education and SEN support he’s missed;
• Pay financial redress to her and Z for the stress and upset caused by its failures and her time and trouble pursuing the issues;
• Reimburse the costs she’s incurred;
• Carry out a full re-assessment of Z’s needs and finalise the EHC Plan within the legal timeframe with SMART outcomes and provision; and
• Make service improvements to allow parents to report any major failings by schools and ensure this does not happen again.

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What I have and have not investigated

5. We cannot investigate complaints about what happens in schools unless it relates to SEN, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s EHC Plan.
6. I have not investigated Mrs Y’s complaint Z’s school informally excluded him on many occasions, precluded him from attending certain school activities, or discriminated against Z because of his disability.

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The Ombudsman’s role and powers

7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
8. 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)
9. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
10. 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)
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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How I considered this complaint

12. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
13. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

14. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
15. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
16. 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.
17. We cannot direct councils to make changes to the special educational provision set out in the plan or to name a different school. Only the SEND Tribunal can do this.
18. We recognise it is not practical for councils to keep a “watching brief” on whether schools are providing all the special educational provision for every child with an EHC Plan. We consider councils should be able to demonstrate due diligence in discharging its duty to make sure the arrangements in the EHC Plan are put in place, and as a minimum have systems in place to:

• Check the special education provision is in place when a new EHC Plan is issued or there is a change in placement;
• Check the provision at least annually via the review process; and
• Investigate complaints or concerns the provision is not in place at any time.

Annual Reviews

19. The special educational needs and disability code of practice (the Code) provides statutory guidance about the procedure councils should follow when reviewing an EHC Plan. The Code says a council must:

• review an EHC Plan at least every 12 months. A council can consider holding an early review if there is a change in the child’s circumstances;
• within two weeks of the review meeting, prepare and send out a report setting out any amendments it proposes to make to the Plan;
• within four weeks of the review meeting, decide whether it will keep the Plan as it is, amend, or cease to maintain it. The council must notify the child’s parent of its decision;
• start the process of amendment without delay, if the Plan needs to be amended;
• send the draft Plan to the child’s parent and give them at least 15 days to give their views and make representations on the content; and
• when proposed changes to the draft Plan are agreed, amend the Plan and issue the final EHC plan as quickly as possible, and within eight weeks of the date the Council sent the proposed amendments to the parents.

20. Where the council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
21. In any case the council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Alternative provision

22. 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))
23. “Otherwise” is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.
24. The provision must be suitable for the child’s age, ability, and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
25. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear medical reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated.
26. In all cases councils must consider the individual circumstances of each individual child and be able to demonstrate how they made their decisions. They must take account of all available evidence and record the reasons for their decisions.

What happened

27. I have set out a summary of the key events below. It is not meant to show everything that happened.

Z’s EHC Plan

28. Z has complex needs. On 28 July 2021, the Council issued Z’s first EHC Plan setting out his SEN provision.
29. The EHC Plan named his current mainstream primary school as his placement. In the section on parents’ views, Mrs Y said Z had been on a reduced timetable at his current school due to a lack of appropriate support to meet his needs. As at July 2021, Z was attending school four mornings a week.
30. Z’s SEN set out in his plan included:

• Although physically able he experienced sleep difficulties, struggled with fatigue and could become very tired during day.

31. Z’s SEN provision set out in his plan included:

• 1:1 adult support in class throughout the school day;
• Use of visuals as advised by the speech and language therapist;
• Intensive interaction approaches throughout the day in a quiet space with a familiar key adult;
• An individualised curriculum that included a manageable number of adult led learning tasks and activities;
• Accurate tracking of his attainment and progress;
• Preplanning of events to ensure Z’s inclusion and maximum involvement;
• Regular review of his part-time timetable with his parents and a plan to gradually increase his hours

September to December 2021

32. Z’s timetable at the start of the 2021/2022 school year in September continued as four mornings a week.
33. His timetable was increased after the first half term to include an additional afternoon. He also attended a block of sessions of support for his social and emotional needs at setting A. The school recorded Mrs Y's preference Z should stay at home one school day a week to help with his fatigue levels. It was planned to increase his attendance from January 2022, by a further two hours, to a total of 20 hours a week.
34. Mrs Y raised concerns with the Council from September 2021 about the way in which Z’s SEN provision was being provided.

January to April 2022

35. In January Z’s school timetable was increased by another two hours (an additional afternoon). Z was unable to manage the timetable due to illness. Following a discussion between the school and Mrs Y in February it was agreed not to increase his hours further until he was able to manage the current timetable.
36. Mrs Y says the school told her it could not meet Z’s needs. She contacted the Council about this in February and asked for an emergency review of Z’s EHC Plan.
37. In March, the school and Mrs Y discussed Z’s increasing distress about school. Mrs Y asked for his timetable to be reduced back to four mornings a week.

The emergency review of Z’s EHC Plan

38. A review meeting took place on 28 March 2022. The issues discussed included reference to:

• Z’s increasing distress attending school. An increase in his sensory needs since September 2021. Difficulty accessing a full curriculum in a mainstream classroom setting;
• The school used the additional funding for Z’s SEN provision for his 1:1 teaching assistant support. Staffing had been a significant difficulty. The school had to re-organise this to provide his 1:1 support;
• The school noted as Z’s timetable increased his attendance decreased and tiredness had an impact on his ability to cope with the school environment;
• Z continued to have sleep issues causing fatigue. He did not attend school one day a week, at his parents’ request, to allow him to recharge; and
• A report by the Cognition and Learning Service on the SEN support provided for Z by the school was generally positive;

39. Mrs Y’s views were recorded and included:

• Her concerns Z was still on a highly reduced timetable, with any increase dependent on staff availability;
• No alternative provision made for Z when he was not at school. She had to pay for his activities;
• No 1:1 support for Z to attend activities in school time, such as trips, or after school clubs;
• Z could not tolerate a mainstream classroom setting for more than four mornings a week. He needed individualised sessions in the afternoons; and
• Z needed a quiet calm environment and was not able to focus in a mainstream setting. His placement should be changed to an Area Resource Base (ARB) at another school.

40. The Council’s notes following the meeting about an amended EHC Plan included;

• The current funding for Z’s SEN was used on full-time teaching assistant support when he attended school. If Z accessed alternative provision in the afternoons additional funding might be needed;
• Staff at Z’s current school had a good understanding of his needs and used a consistent approach but his distress and dysregulation in the school environment had increased significantly over the last few months affecting his readiness to learn;
• Z needed significant levels of sensory activities to support his regulation. It was unsure if increased funding would support with building Z’s tolerance to the classroom. It would be more to develop a bespoke curriculum involving outside providers to meet Z’s other sensory social and emotional needs. Guidance was needed about the most beneficial type of intervention for Z’s wellbeing;
• Z’s current placement in a mainstream school did not meet his Z’s SEN;
• As Z was struggling to access a full curriculum in a mainstream setting, his parents had asked for alternative provision in the afternoons, such as therapeutic work or forest schools.
• Z had attended sessions with setting A in the autumn term. A further block of 6 sessions was due to start in the summer term; and
• Z’s parents had requested a change in placement to School C ARB. This would provide a calmer, quieter environment for Z with specialist staff more able to meet his complex needs.

May 2022 to October 2022

41. Z was unable to continue attending school from May because of his increased anxiety.
42. The Council did not issue its decision about maintaining, amending or ceasing the Plan until 12 May (two weeks late), when it sent Mrs Y a draft amended plan. The draft continued to name Z’s current mainstream school as his placement. Mrs Y asked the Council to start the consultation process for a specialist placement.
43. The Council suggested if it could not find a suitable specialist placement for Z by September 2022, it could provide Z with Education Otherwise than at School. (alternative provision).
44. The Council put alternative provision in place for Z in mid-October.

Mrs Y’s complaint to the Council

45. In March 2022 Mrs Y complained about:

• Failure to provide Z’s SEN provision set out in his EHC Plan;
• Failure to provide Z with a full-time education and/or alternative education;
• Direct discrimination against Z because of his disability; and
• Z’s informal exclusion from school.

46. Mrs Y said:

• Z had not been allowed to access a full-time education at school and had not been provided with any alternative provision. A part-time timetable should be for a time limited period. The school did not have a plan for this. Z’s hours were increased only when a staff member was available and not with reference to what was best for him. The part-time timetable amounted to an illegal exclusion from school;
• Z’s SEN provision was not being provided by the school as required by the plan. Her examples of this included staff not using visuals as advised by the Speech and Language Therapist, support not being provided by an experienced adult (with suitable experience or specialist training), and failure to track Z’s progress accurately;
• The school was failing to provide appropriate support so Z could be included in school activities including sports days and school trips. He was not able to take part in after school clubs because there was no funding for 1:1 support for him at these clubs;
• The only alternative provision made for Z outside of the school setting was a block of six sessions at setting A. She had to provide any other learning resources and activities for Z; and
• It should have been clear to the Council, the fact a reduced timetable had become the norm for Z showed the school was unable to meet his needs.

The Council’s response

47. In its complaint response to Mrs Y in May 2022, the Council said:

• It referred to the records of the review of Z’s SEN provision in March 2022. It did not uphold the complaint this was not being provided;
• As required by its policy, the school had told the Council, in February 2020, Z was on a part-time timetable. The school did not provide Z with a full-time education but said it believed the part-time timetable was agreed with Mrs Y;
• It had no record of any exclusions or suspensions for Z; and
• Its SEN service had experienced higher than normal staff sickness, like many services in the UK, which had impacted service delivery. It apologised its ability to respond to Mrs Y had not been at the level it would wish it to be.

48. Mrs Y was not satisfied with this response and asked for her complaint to be escalated to stage two of the Council’s complaints process.

The stage two response

49. The Council arranged for an independent investigating officer (the IO) to investigate Mrs Y’s complaints.
50. In his report issued in August 2022, the IO made the following findings and recommendations:
1. Failure to make Z’s SEN provision set out in his EHC Plan;

• Z’s needs were or had become beyond the capabilities of his teaching assistants who were trying their best in challenging circumstances. Visual aids were not used consistently or always effectively. Social stories were not being used regularly or effectively.
• If a child needs a day off from school to recharge and is often fatigued at school they are unlikely to manage homework which may only exacerbate the situation.
• There had been collaborative work between the school and Mrs Y regarding increases and decreases in Z’s timetable. He was still far from receiving the education he was entitled to but it extremely unlikely he could manage full-time education at the moment and progress had and was being made.
• Overall the complaint about a failure to provide some aspects of Z’s SEN provision was partially upheld
2. Failure to provide Z with a full-time education and/or alternative education;
• Z was not receiving a full-time education or alternative provision.
• It was clear Z could not manage full-time education currently or in the current setting.
• The reluctance to increase Z’s hours may be due to lack of staff but there was a need to take a slow measured approach for Z’s sake
• It was perhaps questionable whether Z could manage additional work when not in school “recharging” but appropriate alternative provision should be provided for Z to give him the opportunity for as much education as possible.
• The complaint was partially upheld.
3. Informal exclusion from school;
• The school could not exclude Z from extracurricular activities no matter how difficult it was to provide the staff needed to support him.
• The school should have reported informal exclusions and absences.
• Z had on occasion been informally excluded from school and some extracurricular activities, which could be considered as disability discrimination.
• This complaint was upheld.
4. Failure to notify Mrs Y within four weeks of the March review meeting whether the Council intended to maintain, amend or cease the EHC Plan;
• This complaint was upheld.
5. Communication failures in January 2022; and
6. Further communication failures in February, March and April 2022.
• These complaints were upheld.
• The IO recommended the council consider introducing systems to ensure parents got a timely response to their queries and removed staff who had left from the email list with an automated response to that effect.

51. The Council considered the IO’s report. In its stage two response in September 2022, it:

• accepted, the IO’s complaint findings and would implement, the IO’s recommendations;
• apologised for any distress Mrs Y had experienced; and
• said it was carrying out a full review of its SEND service. It had already, and would continue to, implement changes such as increasing capacity, improving monitoring of attendance of children in their education settings, additional training and process changes.

My analysis – was there fault by the Council causing injustice?

52. The Council appointed an independent investigator to investigate Mrs Y’s complaints. The investigator conducted a thorough and detailed investigation into the way Z’s SEN support was provided by the school, the review of his part-time timetable and Z’s access to school activities and after school clubs.
53. I do not consider there is any reason to re-investigate or question the IO’s factual findings. But I have considered whether there was fault for which the Council was responsible.

Failure to provide Z’s SEN provision from July 2021 to April 2022

54. The Council’s duty was to arrange the SEN provision in Z’s EHC Plan. Z’s school had said it could meet his needs. The Council named Z’s school as his placement in the plan and provided the school with the agreed funding for his SEN provision.
55. We expect a council to check the special education provision is in place when a new EHC Plan is issued and investigate any concerns raised about provision not being in place. I consider the Council should have investigated Mrs Y’s concerns in September and checked how Z’s provision was being made. The Council has accepted it did not do so. In my view this was fault.
56. The Council also accepted the IO’s finding Z’s school was not providing all his SEN support. Had the Council responded properly in September, I consider it likely Mrs Y’s concerns the school was not providing all of Z’s SEN support effectively, and Z was missing some activities during school hours due to a lack of support, would have been addressed sooner, and the full provision could have been in place by around mid-October.
57. The Council’s failure to do so meant Z missed some of his SEN provision, and the opportunity to be included in school activities during the period from mid-October 2021 to April 2022.

Failure to provide Z with a full-time education from July 2021 to May 2022

58. The IO partially upheld this complaint, but I note he found Z could not manage full-time education currently or in the current setting and the need to take a slow measured approach to an increase in his timetable for Z’s sake.
59. The EHC Plan in July 2021 recognised Z was currently on a part-time timetable. It referred to his sleep issues and fatigue, which could cause him to become very tired during day. The Plan made provision for a regular review of Z’s part-time timetable by the school with his parents and a plan to gradually increase his hours.
60. My view is the Council considered the position regarding Z’s timetable when it issued his Plan in July 2021. It decided provision for a gradual increase in his timetable would be in Z’s best interests, after discussions with the school and Mrs Y. My view is the Council followed a proper process in making this decision. Mrs Y did not appeal this part of Z’s SEN provision. I also note her request Z should not attend school on a Wednesday to help with his fatigue issues.
61. I have not found fault by the Council in the way it made its decision to make provision in his Plan for Z to continue on a part-time timetable subject to a regular review and gradual increase in his hours.

Failure to provide Z with alternative provision from July 2021 to May 2022

62. The IO found it was perhaps questionable whether Z could manage additional work when not in school “recharging” but appropriate alternative provision should be provided for Z to give him the opportunity for as much education as possible.
63. However, the July 2021 EHC Plan did not include any provision for alternative provision for Z outside of the hours he attended school. Mrs Y did not appeal about the lack of alternative provision in the Plan. I do not consider it was fault by the Council not to secure alternative provision if it was not set out in the plan.

Failure to provide Z with alternative education from May to October 2022

64. I understand the Council knew Z was unable to attend school from May because of his anxiety and distress. It had accepted following the annual review, he could not cope with a mainstream setting and the school could not meet his needs.
65. The Council put alternative provision in place for Z from mid- October 2022 as a temporary measure until it found a suitable specialist placement for him.
66. But it failed to make any alternative provision for Z from May until the end of the summer term or ensure this was in place from the start of the autumn term. I consider this was fault. Because of this, Z missed out on his education during this period.

Impact on Z of the missed education and SEN support

67. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
68. I have considered the impact on Z of the loss of SEN support and educational provision. He is a child of primary school age. He did not receive all of his SEN support and missed out on education for a significant period of time at a stage when children are developing essential literacy, numeracy and social skills. For these reasons, I consider the payment should be:

• Towards the lower end of the scale from mid-October 2021 to May 2022 (the period the Council knew or should have known about the issues and that he was not receiving all the support he needed; and
• at the top end of the scale from May to mid- October 2022, the period when Z was not provided with any education or alternative provision.

Failure to notify Mrs Y within four weeks of the March 2022 review meeting whether the Council intended to maintain, amend or cease the EHC Plan

69. The IO found, and the Council accepted, it failed to issue its decision following the March review within the required timescales. There was a delay of some two weeks in its notifying Mrs Y it intended to amend Z’s Plan. This was fault. I consider this caused Mrs Y uncertainty and worry during this time as to what the Council intended to do about Z’s provision.
70. I understand, the final amended plan has not yet been issued. This should have been issued within eight weeks of the date the Council issued the draft amended plan. This delay in issuing the final amended plan is clearly outside the required timescales and fault by the Council causing Mrs Y further uncertainty and worry, and the loss of an opportunity to appeal to the SEND Tribunal, should she disagree with the SEN provision or placement named in Z’s final plan.

Communication failures from January to April 2022

71. The IO found, and the Council accepted, it had failed to communicate properly with Mrs Y during this period. This was fault by the Council. I consider this caused Mrs Y avoidable inconvenience and upset chasing the Council for replies and updates.
72. I also note, although the Council accepted fault in the way it had dealt with Z’s SEN and education provision in its stage two response, it did not propose any remedies for the injustice caused to Mrs Y and Z, putting Mrs Y to the time and trouble of bringing her complaint to us.

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Agreed action

73. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y and Z for its failure to provide all of Z’s SEN provision from mid-October 2021 to May 2022, and its failure to make alternative provision for Z from May to October 2022;
2. apologise to Mrs Y for its failure to complete the March review within the required timescale, and its communication failures;
3. pay Mrs Y £350 to reflect the inconvenience and upset caused by the communication failures, time and trouble in bringing her complaint to us, and the worry, uncertainty and lost opportunity to appeal because of the delay in completing the review. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;
4. pay Mrs Y £300 for each school month Z did not receive his full SEN provision and support from mid-October 2021 to April 2022. I have assessed this as being 21 school weeks making a total of £1,449. This payment may be used by Mrs Y to reimburse her for the cost of any additional SEN materials she provided for Z during this period and the balance should be used for the benefit of Z’s education;
5. pay Mrs Y £600 for each school month of education Z missed from May 2022 to October 2022, until alternative provision was put in place. I have assessed this as being 17 school weeks, making a total of £2,346. This payment may be used by Mrs Y to reimburse her for any expenses she incurred providing Z with alternative education during this period and the balance should be used for the benefit of Z’s education; and
6. Report back to us on the outcome of the annual review meeting held in January 2022 and the timescale for making its decision about Z’s plan following the review and the timescale for issuing any amended or final plan.
74. Within three months from the date of our final decision, the Council should review its procedures for:

• monitoring SEN provision has been properly put in place when a child’s first EHC Plan is issued and responding to concerns about provision;
• deciding whether it is required to make alternative provision where it knows a child is no longer able to attend school and making the alterative provision promptly; and
• ensuring annual reviews are completed within the required timescales and its SEN officers are aware of these timescales and their importance.

75. The Council should provide us with evidence it has completed the above actions.

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Final decision

76. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will take the above action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman