Summary: Mrs X complained the Council did not arrange alternative provision for her child, W, for a time and the provision it did arrange was not full-time and did not deliver the provision in W’s Education, Health and Care (EHC) Plan. We cannot investigate these matters because Mrs X appealed to the SEND Tribunal. Mrs X also complained the Council delayed reviewing W’s EHC Plan. The Council was at fault, which caused Mrs X frustration. The Council will apologise to Mrs X and remind staff of when they need to complete annual reviews.

The complaint

1. Mrs X complained the Council did not arrange alternative provision for her child, W, until July 2023 despite the fact W had been out of education since March 2022. Mrs X said the alternative provision the Council did secure was not full-time and did not deliver the provision in W’s Education, Health and Care Plan. Mrs X also complained the Council delayed carrying out W’s 2023 annual review.
2. Mrs X said this impacted W’s development and education, caused Mrs X significant stress and meant she had to give up work.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative Provision

8. The Education Act 1996 (section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise if the child will not receive a suitable education without that provision. We call the arrangements council’s make under section 19 ‘alternative provision’.

EHC Plans and provision

9. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections.
10. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act).

Annual reviews of EHC Plans

11. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. Councils must review EHC Plans once a year. The first annual review must take place within twelve months of the date of the first EHC Plan. Subsequent annual reviews must take place within twelve months of the previous annual review.
12. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the council. The second stage of the annual review is the council’s decision notice. Within four weeks of the meeting, the council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. There is a right of appeal to the SEND Tribunal against the content of the final EHC Plan, including the provision and placement named in the plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

The Ombudsman’s jurisdiction

14. The courts have established that if someone has appealed to a tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.

What happened

17. W is a young child with complex needs. In the 2022/2023 school year, W attended a mainstream preschool.
18. In early February 2022, the Council issued W’s EHC Plan. The plan noted W would finish the school year at the mainstream school and then from September 2022, move to a specialist primary school (School A).
19. Mrs X was not happy the Council had named School A in W’s EHC Plan. She appealed to the SEND Tribunal to change section B (W’s special educational needs), section F (the special education provision W needed) and section I (the educational placement W should attend).
20. In March 2022, W stopped attending school because the relationship between the school and Mrs X had broken down as a result of her concerns about how it was supporting W.
21. In late March 2022, the school held an annual review meeting on behalf of the Council.
22. The Council did not issue its decision to amend, maintain or cease W’s EHC Plan after the review meeting. It told me this was because Mrs X had appealed W’s February 2022 plan shortly before the meeting.
23. Mrs X did not allow W to attend School A in September because she did not feel it was suitable to meet their needs.
24. The Tribunal heard Mrs X’s appeal in October 2022. It directed the Council to make changes to sections B and F but did not direct any changes to section I; W’s EHC Plan would continue to name School A.
25. Mrs X appealed to the Upper Tribunal, which considers appeals made about decisions made by the SEND Tribunal. Mrs X appealed the SEND Tribunal’s decision that W’s EHC Plan should continue to name School A.
26. In early November 2022, the Council issued W’s amended EHC Plan.
27. In mid-January 2023 Mrs X complained to the Council. She said she was unhappy the Council had not arranged alternative provision for W since he stopped attending school in March 2022. The Council did not uphold her complaint.
28. Mrs X asked for a stage two response to her complaint in March 2023. In that request, Mrs X added that she was unhappy the Council had not yet completed W’s 2023 annual review.
29. In April 2023, the Council responded to Mrs X’s complaint. It did not uphold her complaint about alternative provision and said it had issued W’s final amended EHC Plan in November 2022 so did not need to carry out the next annual review until November 2023.
30. In June 2023, the Council arranged home tutoring for W.
31. In August 2023, the Upper Tribunal upheld Mrs X’s appeal and directed the SEND Tribunal to come to a new decision on Mrs X’s appeal against sections B, F and I of W’s EHC Plan.
32. The SEND Tribunal held a new hearing in December 2023. The current wait to have an appeal heard at the SEND Tribunal is around one year. Mrs X’s appeal was heard urgently because it was ordered by the Upper Tribunal. The SEND Tribunal has not issued its decision as of late January 2024.

Findings

Alternative Provision and EHC Plan provision

33. I cannot investigate Mrs X’s complaint about W’s alternative provision or her complaint that the alternative provision the Council arranged in July 2023 did not deliver the special educational provision in W’s November 2022 EHC Plan. That is because the courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate the consequences of the decision under appeal. This restriction applies from the date the person receives their appeal right to the date the Tribunal makes its decision.
34. Mrs X had, and exercised, her right to appeal W’s February 2022 EHC Plan. She challenged the special educational provision and placement named in the Plan. Mrs X took W out of the mainstream school in March 2022 because she was unhappy with the educational provision W received there. W had a place at School A from September 2022 onwards but Mrs X has not sent W because she does not agree it is suitable. Mrs X’s concerns about alternative provision, including that it was not delivering the special educational provision in W’s EHC Plan arose as a consequence of the matters Mrs X appealed to the SEND Tribunal and Upper Tribunal. I therefore cannot investigate whether the Council was at fault from February 2022 (when Mrs X’s appeal right first arose) to the date the SEND Tribunal issues its decision following the December 2023 hearing. It has not done that yet.

Annual review

35. The Council was at fault for failing to complete W’s March 2022 annual review by issuing its decision to cease, maintain or amend W’s EHC Plan. The law and statutory guidance are clear that councils must complete annual reviews within twelve months of the previous annual review. This requirement remains even where a parent is already pursuing an appeal to the SEND Tribunal. Although the fault meant Mrs X did not have a right to appeal the Council’s decision, she was already appealing the content of W’s February 2022 EHC Plan so the lack of appeal right did not cause her an injustice beyond avoidable frustration.
36. The Council should have completed W’s 2022 annual review by late April so should have completed the 2023 review within twelve months of that date. As of late January 2024 the Council has not yet held the annual review meeting. This significant delay was fault. The fault meant Mrs X did not receive her appeal right but this did not cause her an injustice because appellants are currently waiting around one year to have their appeals heard by the SEND tribunal. Any appeal Mrs X made after the 2023 review would therefore have been heard around April 2024 or later if she appealed amendments to W’s EHC Plan. However, because Mrs X successfully appealed to the Upper Tribunal, her new appeal to the SEND Tribunal was heard in December 2023 and should be finalised soon.
37. The Council was also at fault for giving Mrs X misleading information in its April 2023 complaint response. It told Mrs X W’s 2023 annual review was not due until November 2023. That was wrong, caused Mrs X avoidable confusion and meant the Council missed an opportunity to identify it needed to hold W’s annual review.

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Agreed action

38. Within one month of the date in my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the avoidable frustration and confusion she felt because of the Council’s failure to complete W’s 2022 annual review, its delay in carrying out W’s 2023 annual review and because of its poor complaint response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Remind staff that most annual reviews should be held within twelve months of the previous annual review, not the previous EHC Plan issue date.
39. The Council will provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman