Summary: Miss X complains the Council has delayed issuing her child, Y’s, Education, Health and Care (EHC) Plan, it failed to provide her with suitable provision and failed to properly investigate her complaint. There is fault by the Council that caused significant injustice to Y and Miss X. The Council has agreed to our recommendations to remedy the injustice Miss X and to Y.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council:
• Failed to issue an Education, Health and Care (EHC) Plan for her child, Y, within the statutory timeframes;
• Failed to make suitable provision despite agreeing the existing provision was unable to meet Y’s needs;
• Said it would not name a new school provision in Y’s final EHC Plan; and
• Failed to properly investigate her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
7. 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 have and have not investigated

8. I have not investigated the school named in Y’s EHC Plan because Miss X has the right to appeal to the SEND Tribunal.
9. I have not investigated the concerns Miss X has with Y’s specialist placement she began attending from September 2023 because I am not satisfied the Council knows about the complaint and has had an opportunity to investigate and reply.

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How I considered this complaint

10. I considered Miss X’s complaint and the information she has provided.
11. I considered the information I received from the Council in response to my enquiries.
12. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

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What I found

Relevant law and guidance

Special educational needs

13. A child with special educational needs may have an 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.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Annual review of an EHC Plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
17. Councils must review an EHC plan at least every 12 months.
18. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
19. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
20. Although the Code does not give any deadline for the issuing of an amendment notice, a recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
21. If the plan needs to be amended, the Council should start the process of amendment without delay.
22. The Council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
23. When changes are suggested to the draft EHC plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
24. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
25. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Alternative provision

26. 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.
27. 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.
28. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
29. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

30. Miss X’s child, Y, has a diagnosis of Autism Spectrum Condition (ASC) and has an Education, Health and Care (EHC) Plan.
31. Y attended a mainstream school. Since January 2018, Y had been receiving support at various times throughout the school day. Since March 2019, Y was supported by the Autism Team at the school.
32. In March 2022, Y’s attendance at school was sporadic. Miss X says this was due to anxiety. Miss X requested the support of the Autism Team again. Y’s school called an emergency meeting to review her EHC Plan and this took place in May 2022. The school was of the view it could no longer meet Y’s needs. Miss X requested a change of placement and stated her preference was a specialist school, School 2. There was no representative from the Council in attendance at the review meeting.
33. In July 2022, the Council decided to amend Y’s plan and it consulted with School 2 as requested by Miss X.
34. School 2 responded to the Council in September 2022 and declined to offer Y a place.
35. In November 2022, further support from the Autism Team was sought and a plan was introduced to help Y attend school.
36. Miss X complained to the Council that although Y was in Year 4 at a mainstream school, she was working at below Reception level academically. Miss X said Y suffered from extreme school-based anxiety and her attendance was below 70%.
37. Miss X complained that it had been 19 weeks since the emergency annual review meeting and she had received very little communication from the Council and she had not received a final EHC Plan within the statutory timescales.
38. The Council responded at Stage 1 of its complaint process on 30 December 2022. It apologised to Miss X for the late reply to her complaint.
39. The Council said although it had consulted with School 2, it had not made any further consultations with other settings. It also informed Miss X that it was likely to name the school Y was currently attending on her finalised EHC Plan as it was unable to name to name specialist settings at this time. Miss X was advised a case worker would contact her to discuss options and it apologised for not issuing Y’s EHC Plan within the statutory timescales.
40. Miss X escalated her complaint to Stage 2 of the Council’s complaint process. She had not received any contact from a case worker nor had she received a final EHC Plan. Miss X advised the Council Y had only attended school for 2 hours since returning after the Christmas break. Miss X also had concerns about the Council’s statement that it was going to name a school that was unable to meet Y’s needs. She also highlighted her concerns that the process was taking so long that it would hold Y back even further.
41. In March 2023, the Council consulted with several specialist settings.
42. The Council sent its Stage 2 response to Miss X in April 2023. It apologised for the delay in responding to her complaint and offered £150 to acknowledge the impact of this delay. The Council said it had now issued a final EHC Plan naming the school Y was already attending. However, the final EHC Plan was not issued until May 2023, after the Stage 1 complaint response.
43. The Council said it acknowledged there were delays in issuing the final plan which delayed consultations being carried out and prevented Miss X’s right to appeal to the SEND Tribunal.
44. The Council acknowledged Miss X’s concerns about the school not meeting Y’s needs and it explained that it had named the current setting in the final plan because it had not received responses to consultations within statutory timescales.
45. An annual review was held on 8 June 2023 and a further final EHC Plan was issued on 11 July 2023 naming the school she was currently attending with a transfer to a specialist setting from September 2023.

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Analysis

Issuing an Education, Health and Care (EHC) Plan for Y within the statutory timeframes

46. The Council should have made its decision to amend Y’s EHC Plan within four weeks of the review meeting. This means the decision should have been made by 31 May 2022. The Council made its decision on 25 July 2022. This is a delay of eight weeks. This is fault. Although there is fault, I consider there was no injustice to Miss X at this point because she requested the existing plan to be amended to name a specialist school, School 2.
47. The final amended plan should have been issued within 12 weeks of the annual review. This means the final plan should have been issued by 26 July 2022. The Council issued the final plan on 5 May 2023. This is a delay of 10 months. This is fault and caused uncertainty about whether Y had missed out on an opportunity to attend a specialist setting due to the delays and whether she would have made better progress with the full support in place ten months earlier. The fault also caused distress and time and trouble in chasing the Council.
48. Although the fault delayed Miss X’s right of appeal to the SEND Tribunal, I do not consider she suffered an injustice because she decided not to appeal.
49. The Council says the delays were caused by staffing issues and an increased demand for EHC Plans. The Council failed to allocate a case worker to Y and this meant matters were allowed to unnecessarily drift. This is fault.
50. The Council advised me that the delay was also attributable to its focus on consultation responses from settings however I have not found evidence to support this.

Failed to make suitable provision despite agreeing the existing provision was unable to meet Y’s needs

51. From May 2022, the Council was aware the mainstream school Y was attending was unable to meet her needs and this was documented accordingly in the emergency annual review documentation.
52. From May 2022 to December 2022, the school implemented various strategies to support Y with her attendance. However, these strategies made very little difference to Y’s attendance.
53. In January 2023, the school implemented a part time timetable but after three sessions, Y stopped attending.
54. Apart from three hours in January 2023, Y did not receive any provision from January 2023 to July 2023.
55. The Council has not provided me with any evidence it took enforcement action against Miss X for Y’s non-attendance.
56. There is no evidence the steps the Council took to ensure Y was receiving the educational provision in her EHC Plan.
57. Y began attending a specialist placement, School 3, from September 2023. I understand from the information I have received from Miss X that Y is struggling with attending this placement. I am unable to address the concerns Miss X has with the placement in this investigation. Miss X has the right to use the Council’s complaint process to highlight the current concerns she has.
58. Based on the evidence, I consider the Council should have recognised its Section 19 duty from January 2023 when the part-time timetable did not improve Y’s attendance. By recognising its Section 19 duty it should have arranged alternative education for Y that she could access and to ensure the provision in her EHC Plan was being delivered. Therefore, I consider the Council’s failure to recognise its Section 19 duty is fault.
59. The fact that Y has an EHC Plan means that she needs special educational support to be able to interact and achieve education to the best of her abilities. By missing out on education means that an already vulnerable person has been further disadvantaged. The fault has resulted in Y not receiving the education she was entitled to and the provision in her EHC Plan. A further aggravating factor is that Y was already educationally disadvantaged due to her low attendance at school. Also, Miss X has experienced distress to support Y when she was not in school or had no suitable alternative provision available to her.

The Council said it would not name a new school provision in Y’s final EHC Plan

60. I have not investigated the school named in Y’s EHC Plan as Miss X had the right to appeal this to the SEND Tribunal. However, there is evidence the Council was at fault for not consulting with settings in a timely manner.
61. The Council had a duty to ensure it had sufficient school placements available to all children of compulsory school age in its area. There are no set timescales for how long it should have taken the Council to find Y a suitable school placement. However, based on the circumstances, I would have expected a suitable placement to have started for Y by at least January 2023. I find the Council’s inability to find Y a suitable school placement by January 2023 was a service failure. This is because it had failed to properly keep its Local Offer under review to ensure it had sufficient school places available to meet the needs of children and young people in its area. The Council could therefore not offer Y a suitable school placement.
62. The Council advised Miss X it named the current setting in Y’s final EHC Plan because that was the best option when a response to a consultation is not received within statutory time limits. However, I do not find the evidence supports this.
63. My investigation has found the Council was notified on 12 September 2022 by School 2 (parental preference) that it could not offer Y a place and it did not consult with any other settings until 8 March 2023. The Council then notified Miss X on 25 April 2023 that the delay was due to not receiving a response to consultations within statutory timescales.
64. The evidence shows consultations were sent on 8 March 2023 to four specialist settings. Three of the settings responded within the 15-day statutory time limit and the fourth setting responded 8 days after the statutory time limit and it was unable to offer Y a place. Therefore, I have found fault in the Council’s assertion in its Stage 2 response that the delay of eight days by one setting that could not offer Y a place was the reason it named Y’s current setting, despite it being aware it was unable to meet her needs.
65. Although the Council did not tell Miss X in its Stage 2 response that it failed to consult with any settings between 25 July 2022 to 8 March 2023, it did say it would offer her £150 as compensation for the delays in the process.
66. Miss X experienced distress due to the uncertainty the Council’s inability to find Y a suitable school placement caused her. Y also experienced a loss of education due to the Council’s delay to consult with schools and put in place alternative provision from January 2023 to July 2023. Therefore, I do not consider the sum offered by the Council appropriately remedies the injustice caused by the fault.

Failed to properly investigate her complaint.

67. I have already found fault in the Council’s Stage 2 response for not clearly explaining the reasons for the delay in consulting settings. In addition to this, the Council delayed in responding to Miss X’s complaint at both stages of the complaints process.
68. The stage one complaint response details the uncertainty around the allocated caseworker and includes a commitment to resolve this in the new year. The Council acknowledges that had the investigating officer or designated casework officer reached out to Miss X early in the new year to discuss the complaint and progress Y’s case the impact of the incomplete investigation may have been mitigated but this did not happen.
69. The Council has also acknowledged that Miss X’s stage two submissions detailed her concerns with the stage one investigation but these were not directly addressed by the Council at stage two. This is also fault.
70. The delays caused Miss X frustration and time and trouble. The Council delayed in sending its Stage 1 response and despite acknowledging this delay in its response and apologising, the subsequent Stage 2 response was delayed significantly longer. I acknowledge Miss X will have lost trust in the Council’s complaint handling process for repeating the same mistakes.
71. The Council has offered Miss X £150 for the impact the faults identified above had on her. I do not consider the payment offered to Miss X is in line with our Guidance on Remedies.

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Agreed action

72. To remedy the injustice caused to Miss X and to Y, the Council has agreed that within one month of this final decision, it will:
• Apologise to Miss X in writing;
• Pay Miss X £300 to acknowledge the delays and faults identified with the Council’s complaint handling;
• Pay Miss X £150 to recognise the time and trouble taken in pursuing the complaint;
• Pay Miss X £1500 for the avoidable distress and uncertainty caused by the delay in issuing Y’s EHC Plan ten months later than it should have; and
• Pay Miss X £3000 to acknowledge Y’s loss of education. This figure is comprised of £1500 for the Spring 2023 term and £1500 for the Summer 2023 term. I recommend Miss X uses this sum for the benefit of Y.
73. The Council has also agreed, that within three months of this final decision, it will:
• Share with the Ombudsman, the Council’s review of its Local Offer to ensure it has enough mainstream schools, special schools, and alternative provision to meet the needs of all children with special educational need in its area; and
• Remind staff responsible for arranging and approving alternative provision for children and young people who are not receiving an education in school, to properly consider whether alternative provision should be provided to meet special educational needs set out in EHC Plans.
74. The Council will provide us with evidence it has complied with the above actions.

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Final decision

75. There is fault by the Council and it caused significant injustice to Y and to Miss X. The Council has agreed to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman