Summary: Miss B complained that the Council delayed in issuing an amended Education, Health and Care Plan following an emergency review in November 2022, communicated poorly with Miss B and failed to provide C with any alternative education when he stopped attending school at the end of April 2023. We found fault with the Council. It has agreed to apologise to Miss B, pay her £3,300 and improve its procedures for the future.

The complaint

1. Miss B complained that West Northamptonshire Council (the Council) in respect of her son, C:
• delayed in issuing an amended Education, Health and Care (EHC) Plan following the emergency Annual Review in November 2022;
• communicated poorly with Miss B throughout this period; and
• failed to provide any alternative education for C after he stopped attending school in April 2023.
2. This has caused C to miss out on essential education and Miss B significant distress and frustration.

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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)

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What I have and have not investigated

5. I have investigated the period up to 7 July 2023, for the following reasons:
6. The courts have established that if someone has appealed to the 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)
7. 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.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

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How I considered this complaint

9. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Special educational needs

11. A child or young person with special educational needs may have an EHC Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

Reviewing EHC Plans

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
13. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

Alternative provision of education

15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. 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))
17. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened

19. Miss B’s son C has complex needs. The Council issued a final EHC Plan in April 2022 naming his current school. He had problems regulating his behaviour at school leading to regular exclusions which became more frequent in September 2022.
20. In October 2022 the Council’s SEND Support Service assessed C in school. It noted that the school had increased his support from 1:1 to 2:1 and employed a number of strategies to improve the situation. The Service made some recommendations about further strategies and training to try, including a day in an alternative provision and an alternative reduced timetable.
21. On 28 November 2022 the school held an emergency annual review. It said it could not meet C’s needs and despite the high level of support he was still having violent outbursts resulting in exclusions (8.5 days since September 2022). He was at risk of permanent exclusion, he was not accessing learning and spending an increasing amount of time outside the classroom. The review suggested a day at an alternative provision and a reduced timetable. The meeting concluded that C needed specialist provision.
22. The school sent the annual review paperwork to the Council on 16 December 2022. Miss B said C was diagnosed with two medical conditions around this time but she had not received any written confirmation.
23. In January 2023 the school started funding an alternative provision session in school for 90 minutes per week. On 20 January 2023 the school again said to the Council that it could no longer meet C’s needs and the situation was at crisis point.
24. In early February 2023 Miss B provided a list of specialist schools she had visited and her views on them. In early March 2023 the Council requested details of C’s diagnoses from the health service. On 15 March 2023 the Council sent a draft EHC Plan with the proposed amendments to Miss B. Miss B requested an extension to respond to the draft to allow the recent diagnoses to be included.
25. The Council asked Miss B for her school preferences or for an ‘education other than at school’ (EOTAS) package. It said it would consult providers without waiting for the health information and could amend the EHC Plan later.
26. The Council sent Miss B a second draft EHC Plan in mid-April 2023 without her suggested amendments. It refused her request for EOTAS and started consulting schools.
27. C stopped attending school completely following a fixed term exclusion on 26 April 2023.
28. The school emailed Miss B on 12 May 2023 to say it had tried to contact the Council’s attendance officer about C’s non-attendance but it had not had a reply to its emails. On 19, 26 and 31 May 2023 Miss B confirmed directly to the Council that C was no longer attending school and on 9 June 2023 requested alternative educational provision.
29. On 26 June 2023 Miss B made a formal complaint about the delay in producing a final EHC Plan since the annual review in November (it should have been completed by 20 February 2023), the rejection of her request for EOTAS, delay in consultation with schools and delay in giving her a right of appeal. She asked the Council to complete the EHC Plan as soon as possible and provide C with alternative educational provision.
30. The Council met with Miss B in early July 2023 and consulted with two out of borough schools. On 7 July 2023 it issued the final EHC Plan, specifying a local mainstream school in section F and including weekly occupational therapy sessions over a term. The Council agreed to ten occupational therapy sessions with an OT provider.
31. On 28 July 2023 the Council responded to Miss B ‘s complaint. It apologised for:
• the delay in responding to her complaint;
• poor communication; and
• the delay in producing an amended EHC plan following the annual review.
32. It said the Council had to be sure there were no suitable school placements before it could agree to EOTAS. It offered a general apology explaining that the service was under considerable pressure.
33. Miss B remained unhappy and escalated her complaint to stage two of the complaints procedure. She specifically noted that the Council had not responded to the complaint about alternative educational provision.
34. The Council responded at stage two on 17 September 2023. It upheld the complaints about:
• the failure to produce a draft EHC Plan and communicate with Miss B better. It apologised and committed to review its processes;
• the alternative provision and agreed it could have started the search earlier; and
• the EOTAS package. It said it was now appropriate to consider this and agreed it could have started this sooner.
35. It apologised but offered no further remedy.
36. At the end of September 2023 it put nine hours of alternative provision in place which is ongoing.
37. In response to my enquiries it said the Council was not aware until July 2023 that C was not attending school.

Analysis

EHC Plan review

38. The Council received the annual review paperwork on 16 December 2022. It should have notified Miss B within four weeks (by the 13 January 2023) of its intentions with regard to the EHC Plan. It did not send a Notice of Amendment and draft EHC Plan until 15 March 2023 and only issued the final amended EHC Plan on 7 July 2023, over seven months after the annual review was held. This was fault which caused C to miss out on education and delayed Miss B’s opportunity to appeal against the final plan and secure an alternative placement. It also caused Miss B frustration and inconvenience in having to chase up the Council throughout this period. I consider it should have issued the final EHC plan within four weeks of the draft, ie by mid-February 2023.
39. I also note the communication with Miss B was poor. There is no evidence the Council checked on C’s progress given the concerns raised in the autumn of 2022 and that the Council through its SEND support service was aware that C was not engaging in learning and was on a reduced timetable.

Alternative provision

40. C did not return to school after his fixed term exclusion on 26 April 2023. The school had informed the Council of this by 12 May 2023 and Miss B informed the Council directly on three occasions in May 2023 and by formal letter on 9 June 2023. I have concluded the Council was aware by 12 May 2023 that C was not attending school and should have put in place alternative provision by 22 May 2023 (after 15 days of absence).The failure to do so until the end of September 2023 was fault.

Injustice

41. As I have explained above, I can only consider the injustice arising from the fault until 7 July 2023. For clarification:
• C missed out on special educational support, including OT, in school for approximately five months and he missed out on education and OT entirely from 22 May to 7 July 2023 (approximately 1.5 months).

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Agreed action

42. In recognition of the injustice identified above, I recommended the Council, within one month of the date of my final decision:
• apologises to Miss B in accordance with our Guidance on Remedies;
• pays her £3000 for the benefit of C’s education, made up as follows:
1. £1800 for the five months of reduced provision (1.5 terms @£1200 per term)
2. £1200 for the 1.5 months of no provision (0.5 term @ £2400 per term); and
• pays her £300 for her distress and uncertainty.
43. I also recommend within three months the Council:
• Reviews its procedure for amending EHC Plans following reviews (annual and emergency) to ensure any changes are made and a final EHC plan issued within a reasonable period of time (ideally in the region of 8 to 12 weeks from the review).
• Offers training and/or guidance to all relevant staff on the requirement to consider alternative educational provision for children out of school for longer than 15 days due to illness, exclusion or otherwise.
44. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

45. I consider this is a proportionate way of putting right the injustice caused to Miss B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman