The Local Government and Social Care Ombudsman (“LGO”) has recently reported how Cambridgeshire County Council (“the Local Authority”), caused a family to encounter an “excessive” 7-month wait for alternative provision to be implemented for their son, who has special educational needs.
The LGO found that the child in question had an Education, Health and Care Plan (“EHCP”) in place from February 2024 and was struggling to attend school during this time. His difficulties attending then became more apparent during his transfer into secondary education that following September, at which point he and his parents were living in a different Local Authority area. While he would attend school, he was only able to do so for a mere 30 minute – 2 hours per day and as such, was not able to engage in lessons.
Background to the Section 19 Alternative Provision Request
By October, upon relocating to the Local Authority in question, it was determined by his parents and school that even the part-time timetable was not working – as such, his parents contacted the Local Authority and requested that alternative provision is implemented under Section 19 of the Education Act 1996.
Despite the numerous concerns raised by his parents and setting regarding the child’s inability to attend school, no intervention was put in place to support the child or his family at this time. He therefore continued to sporadically attend his setting until February 2025, at which point he stopped attending school completely.
Annual Review Failures and Complaint Escalation
That same month, the Local Authority held an Annual Review of the child’s EHCP. When issuing the paperwork for the same, there was no mention of his inability to attend school or the parental request for alternative provision. Despite the school providing the Local Authority with the necessary Annual Review paperwork on 11th February 2025, requesting amendments to the EHCP and further emphasising the need for alternative provision, no further action was taken.
As a result, the parents lodged a stage 1 complaint with the Local Authority in the following March, stipulating the delays encountered since the Annual Review and worse still, since their initial request for alternative provision in October 2024. Later that month, the Local Authority responded and apologised for the delays encountered, solely focusing on the Annual Review delays. The Local Authority purported that their failures were as a result of staff shortages and the high volume of cases at hand. Understandably dissatisfied with the responses received by the Local Authority, the parents requested the complaint be progressed to the next stages until eventually exhausting their internal complaints procedure in May.
At the beginning of May, subsequent to the Annual Review earlier that year, the Local Authority eventually issued a proposed amended EHCP, which should have been issued within 12 weeks of the meeting – evidencing a 5-week delay.
Seven-Month Delay in Implementing Alternative Provision
A few weeks later, the Local Authority additionally implemented alternative provision in the form of 15 hours per week of tuition at home or in the local community centre – a staggering 7 months on from the parents’ initial request.
Ombudsman Findings and Compensation Recommendation
Upon investigating this case, the LGO found that the Local Authority’s aforementioned failures caused an “injustice” to the child and his parents and the delays caused by the Local Authority meant that the child in question was unable to receive the alternative provision which he was entitled to for a total of 7 months. The LGO determined that the Local Authority’s actions caused “frustration and anxiety” for the family. To remedy the injustice caused, the LGO recommended the Council pay £3,600.00 to the parents for the impact of the loss of education and provide the family with a written apology, as well as a number of recommendations for the Authority’s internal procedures, to ensure this does not occur again.
Local Authority Duties Under Section 19
The Local Authority 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; this applies to all children of compulsory school age living in the local authority area, whether or not they are on the roll of a school.
Annual Review Duties Under EHCP Law
Additionally, an Annual Review is a statutory process that occurs at least once per year to review the contents of a child or young person’s EHCP with the intention of monitoring its efficacy and ensuring it remains both relevant and appropriate to the child or young person as they grow and progress through education.
The Local Authority maintaining the EHCP therefore has a statutory obligation to complete the first review of an EHCP within the 12 months following its initial finalisation. Any subsequent reviews must be completed within 12 months following the previous review.
When a Local Authority Is Acting Unlawfully
The Local Authority is acting unlawfully if it does not comply with these obligations and should you feel this is the case or wish to obtain advice regarding an upcoming Annual Review or the EHCP process as a whole, please contact our specialist education team on 0333 202 7175 or education@hcbgroup.com, we are here to help.
