Summary: Miss B says the Council failed to ensure her son’s special educational needs provision was in place, failed to provide education to her son when she removed him from school, delayed issuing education, health and care plans following reviews and ignored her complaints. There is no evidence of failure to put in place special educational needs provision or of fault in failing to put in place alternative education. The Council delayed issuing an amended education, health and care plan following a review and failed to respond to Miss B’s complaint. Payment to Miss B and introduction of a process to track the progress of amendments following reviews is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• failed to ensure the provision in her son’s education, health and care plan (EHC plan) was in place between September 2021 and May 2022;
• failed to provide education to her son when she removed him from school in May 2022;
• delayed issuing an EHC plan following the review in 2021;
• ignored her complaints;
• decided to make amendments to her son’s EHC plan in March 2022 without consulting her;
• wrongly removed provision from her son’s EHC plan; and
• named a school in her son’s EHC plan which cannot meet his needs.
2. Miss B says the Council’s actions have had a significant impact on her family.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)

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What I have and have not investigated

8. I have investigated Miss B’s concerns about failure to put in place special educational needs provision for her son between September 2021 and May 2022, failure to provide education to her son when she removed him from school in May 2022, delay issuing an EHC plan and failure to respond to her complaints. I have not investigated Miss B’s concerns about changes to her son’s EHC plan or the school named in her son’s EHC plan. I explain the reasons for that at the end of this statement.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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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What I found

What should have happened

Provision of education

12. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
13. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. 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.
14. Statutory guidance issued by the Government called "Alternative Provision" says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a Council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is "reasonably practicable" for the child to access. The "acid test" is whether educational provision the Council has offered is "available and accessible to the child". (R (on the application of DS) v Wolverhampton City Council 2017)

Education, health and care plans

16. A child with special educational needs may have an EHC plan. An EHC plan describes the child’s special educational needs and the provision required to meet them.
17. The procedure for assessing a child’s special educational needs and issuing an EHC plan is set out in regulations and Government guidance.
18. An EHC plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s EHC plan.
19. 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.
20. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing EHC plans. It deals with reviewing plans as follows.
21. Councils must review an EHC plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review. They may carry out a review earlier.
22. The review meeting should consider how appropriate the EHC plan is in the light of the child or young person’s progress or any changes of circumstances.
23. The Council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC plan as it is, amend it or end it.
24. If the Council decides not to amend the EHC plan it must write to the parent or the young person with its decision and tell them about the right of appeal.
25. If the EHC plan needs to be amended the Council should start the process of amending, it without delay. It must:
• send the child’s parent or the young person a copy of the EHC plan with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the EHC plan and advise where they can find information about placements available;
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
26. If the Council decides to amend the EHC plan following the representations it must issue the final amended EHC plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

What happened

Annual review

27. Miss B’s son has special educational needs and has an EHC plan. An annual review of that EHC plan took place in July 2021. That review decided the EHC plan needed amendments as Miss B’s son had sensory needs which were not reflected in it.
28. In February 2022 the Council identified it had not processed the July 2021 review. A further review took place in February 2022 to discuss the additional areas of need. Following that review the Council wrote to Miss B to tell her it would amend the EHC plan.
29. In March 2022 the Council’s panel considered the case and decided it did not have enough evidence to add additional areas of need into the EHC plan. The panel suggested the school involve an educational psychologist if it felt needs had changed. The Council wrote to Miss B on 28 March to say it intended to amend the EHC plan.
30. The Council issued an amended EHC plan in June 2022. Miss B put in an appeal on 17 June 2022.

Provision of education

31. Miss B withdrew her son from his allocated school on 17 May 2022. Miss B obtained a report which identified some additional sensory needs for her son and the allocated school said it could put the provision in place. The allocated school suggested a meeting but Miss B said she had lost trust in the school and her son would not be returning.
32. When the Council issue the amended EHC plan in June 2022 the school told the Council it no longer considered it could meet needs. That EHC plan still named the allocated school and that was part of Miss B’s appeal to tribunal.
33. During the tribunal process the Council agreed a change of school which Miss B’s son began attending in October 2022.

Analysis

34. Miss B says the school allocated to her son failed to put in place special educational needs provision between September 2020 and May 2022. The Ombudsman will not normally consider a complaint about matters which took place more than 12 months ago. I am not exercising the Ombudsman's discretion to go back to September 2020 as I see no reason why Miss B could not have complained within 12 months.
35. I am, however, exercising the Ombudsman's discretion to investigate what has happened since September 2021. That is because I am satisfied the review of the EHC plan took place in June 2021. I am therefore satisfied if there were any issues with provision those could have been resolved if the Council had issued a final EHC plan after the review.
36. The provision Miss B says is missing relates to occupational therapy. The provision in Miss B’s son’s EHC plan stated the following:
• occupational therapy to design a programme to work on sensory motor skills and strategies to modulate Miss B’s son’s attention;
• the occupational therapist to review and adjust the sensor-motor programme for teaching and support staff to implement and carry out with him on a daily basis as an integrated classroom routine (60 minutes each school term);
• occupational therapy to advise on specialist equipment and tools to support sensory processing, self-regulation and attention skills;
• training and demonstration to staff working in the school on the occupational therapy sensory-motor programme activities, specialist equipment and attention strategies (90 minutes once a year which could be broken down into 30 minutes per term or completed in one session);
• create sessions to promote sensory-motor skill development and regulation of good attention and listening within his learning/education environment.
37. Miss B says the occupational therapist failed to work closely with the school as required, failed to attend the annual reviews as required and failed to provide a written report for the annual reviews as required.
38. The text detailing the occupational therapy provision Miss B refers to comes from section F of the EHC plan where there is a description of by whom and by when or how often provision will be put into place. I appreciate the occupational therapist did not attend the annual reviews in 2021 or 2022 or produce a report for those reviews. However, I have no evidence to show this affected the provision to Miss B’s son. Nor have I seen any evidence Miss B raised concerns about the provision listed in paragraph 36 not being in place at either the 2021 or 2022 annual reviews. I therefore could not say that provision was not put into place.
39. Miss B says the Council failed to put in place alternative education for her son when she removed him from school in May 2022. The Council is responsible for ensuring children receive education when they are not able to attend school due to medical or other reasons. Miss B withdrew her son from the allocated school on 17 May 2022. That allocated school was the school named on Miss B’s son’s EHC plan. When the Council issued a revised EHC plan naming the same school in June 2022 Miss B appealed.
40. There is no evidence the allocated school considered itself unsuitable for Miss B’s son before Miss B appealed. It is also clear the Council considered the school remained suitable in May 2022 as it named the same school in the June 2022 EHC plan. I therefore cannot criticise the Council for failing to put in place alternative education before Miss B exercised her appeal right. That is because I have seen no evidence the Council shared Miss B’s view about her son’s inability to return to his allocated school.
41. For the period after June 2022 I cannot consider any failure to put in place alternative education once the allocated school decided it was no longer suitable for Miss B’s son. That is because Miss B had, and exercised, her right of appeal about the school named in her son’s EHC plan.
42. The Council accepts it delayed issuing a final EHC plan following the review in July 2021. I set out the timescales the Council is supposed to adhere to following a review in paragraphs 23-26. The Council failed to comply with those timescales in this case as it did not issue a final EHC plan until June 2022, almost 12 months later and after a further review had taken place. That delay is fault.
43. I am also concerned there has been some confusion caused by the Council’s communications with Miss B about what it had agreed to do following the two reviews. The evidence I have seen satisfies me both reviews decided amendments to the EHC plan were required. I am satisfied this is the information the Council gave Miss B. However, in the meantime the Council’s panel had also decided not to amend section B in relation to Miss B son’s needs as it did not consider it had sufficient information. It is clear to me Miss B believed this meant the Council did not intend to amend the plan when that was not the case. There is no evidence the Council explained the situation to Miss B properly which added to her confusion. That is fault.
44. The delays issuing a final EHC plan following the 2021 and 2022 reviews delayed Miss B’s right of appeal. It is also clear the revised EHC plan had additional provision for Miss B’s son’s sensory needs. I could not say the Council would have included that provision had it issued the EHC plan in 2021 given its panel in March 2022 decided more information was needed and as a further annual review had also taken place. However, I consider Miss B is left with some uncertainty about whether her son could have received some additional provision had the Council complied with the timescales. The Council has offered a remedy of £500 to reflect the delays. I consider that an appropriate amount to reflect Miss B’s uncertainty and distress. I recommended though the Council put in place a tracking process to ensure timescales are followed when a review decides amendments to an EHC plan are required. The Council has agreed to my recommendation.
45. The Council accepts it failed to respond to Miss B’s complaint. The Council has offered an additional £500 as remedy. I consider that an appropriate amount. I also note the Council has introduced a way to track complaints to prevent the same situation occurring in future, which I welcome. I therefore make no further recommendation here.

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Agreed action

46. Within one month of my decision the Council should:
• apologise to Miss B for the distress, uncertainty and frustration she and her family have experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £1,000; and
• put in place a process to ensure those EHC plans which need amendment following a review are followed up on and completed within the statutory timescales.

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Final decision

47. I have completed my investigation and found fault by the Council in part of the complaint which caused Miss B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

48. I have not investigated Miss B’s concerns about changes to the special educational needs provision listed in section F of the EHC plan. Nor have I investigated Miss B’s concerns about the school named in the EHC plan. That is because Miss B had, and exercised, a right of appeal in relation to those matters. Consequently, they are outside the Ombudsman’s jurisdiction.
49. I have also not investigated Miss B’s concerns about the Council’s decision to amend her son’s EHC plan in March 2022. That is because I am satisfied this relates to matters on which Miss B subsequently submitted an appeal. This part of the complaint is therefore also outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman