Summary: Miss Y complained the Council failed to hold an emergency annual review and delayed in providing alternative provision for her child, X. We have found the Council at fault for the delay in issuing the final Education, Health and Care Plan and for failing to consider its duties when X was not attending school. These faults have caused distress, frustration and uncertainty to X and Miss Y. The Council has agreed to apologise to Miss Y and make a symbolic financial payment to remedy the injustice caused.

The complaint

1. Miss Y complained the Council named a school on her son, X’s, Education, Health and Care Plan without consulting her, failed to hold an emergency annual review and delayed in providing alternative provision. Miss Y says this meant X was out of education for months. She also says her mental health has been impacted and there has been a negative impact on family life. Miss Y would like the Council to admit there has been faults and apologise.

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The Ombudsman’s role and powers

2. 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)
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. 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. 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

6. I have not investigated Miss Y’s complaint the Council named a placement without consulting her. Miss Y had a right to appeal this decision to the SEND Tribunal and I have seen no reason why it was not reasonable for Miss Y to appeal this decision. My investigation therefore covers the period from November 2023 to July 2024.

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How I considered this complaint

7. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
8. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

EHC Plans

9. A child or young person with special educational needs may have an Education, Health and Care (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. 
10. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
11. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Annual reviews

14. 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.
15. 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) 
16. 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.

Section 19 duty

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

Annual review

19. X’s school contacted the Council at the end of November 2023 to discuss a change of placement for X. The Council responded to advise it had not received a response with the parents preferred placement at the last review so it finalised X’s EHC Plan in September 2023, naming the current placement. The Council advised this decision was now out of the appeal timeframe so an early annual review would be needed to look at a change of placement.
20. An annual review meeting took place at the beginning of January 2024. Miss Y did not attend this meeting, so a second annual review meeting took place one week later. Miss Y attending the second annual review meeting.
21. In February 2024 the Council agreed to amend X’s EHC Plan. The Council should have issued the final amended EHC Plan no later than the first week of April 2024.
22. The Council issued the final amended EHC Plan, naming a specialist placement from September 2024, in June 2024. This is approximately a two month delay.

Alternative Provision

23. During the second annual review meeting in January 2024, it was agreed that alternative provision should be sought for X as he was not able to access full-time education.
24. X’s school offered one hour sessions which would take place 3-4pm, Monday to Friday. Miss Y and X did not feel this was accessible for X due to his anxiety around attending the school.
25. A catch up meeting took place in February to discuss the school’s efforts in sourcing alternative provision for X. Miss Y was invited to this meeting but did not attend. The School and Council completed the meeting, and the school advised it was exploring various alternative provision options for X.
26. At the end of February 2024 Miss Y contacted the school to propose a way in which X could access education with the school. The school arranged this and from March 2024 – July 2024 X received the following alternative provision:
• 4 hours per week with the school
• Wednesdays at an alternative provision provider.
27. In response to our enquiries the Council told us the school placement remained available to X and it was Miss Y’s decision to keep him off school. The Council accepts the provision in place was not full time, however based on X’s levels of engagement it is not felt X would have engaged in additional provision during this time.

My findings

28. There is no fault in the Council’s actions when advising the school to hold an early annual review at the end of November 2023. An annual review meeting was held within 6 weeks.
29. There was a two month delay in the Council issuing X’s amended final EHC Plan. This is fault which caused frustration, distress and uncertainty for X and Miss Y. In response to our enquiries the Council offered a symbolic payment of £300 in recognition of the delay and the uncertainty this caused. This is a suitable remedy for the delay and injustice.
30. The Council has not provided any evidence which shows it considered its section 19 duty to provide X with access to a suitable, full-time education or its section 42 duty to provide X with the special educational provision detailed in his EHC Plan between January 2024 and July 2024. The Council has produced no evidence it considered at the time, whether the level of alternative provision in place between March 2024 – July 2024 was suitable. This is fault which caused uncertainty for X and Miss Y.
31. In response to our enquiries the Council has provided us its updated decision making process for when children and young people are unable to access suitable, full-time education. This includes how the Council should record its decisions, communicate with parents/schools and how the Council should consider the suitability of alternative provision. Therefore, I have not made any further service recommendations.

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Action

32. Within one month of the final decision the Council will:
• Apologise to Miss Y for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Pay Miss Y the offered symbolic payment of £300 in recognition of the frustration, distress and uncertainty caused by the delay in issuing X’s final amended EHC Plan.
• Pay Miss X an additional symbolic payment of £500 in recognition of the uncertainty caused by the Council’s failure to consider its duties when X was unable to attend school between January 2024 and July 2024.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman