Summary: Mrs X complains about the Council’s failure to provide alternative education for her son and delayed issuing his amended Education, Health and Care Plan. The Council met its duties to provide a suitable education that was available and accessible. However, it did delay in issuing the amended EHC plan and a suitable remedy is agreed.

The complaint

1. Mrs X complains the Council failed to make alternative provision for her son when he was unable to attend school from December 2022 and delayed issuing the amended EHC plan which delayed her right to appeal to the SEND tribunal.
2. Mrs X says this has disrupted her son’s education and caused distress to the whole family.

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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. As part of the investigation, 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;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Arrangements for reviewing an EHC Plan

7. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
8. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
9. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
10. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

The Hillingdon judgement

12. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

Post-16 – review, provision and naming placement deadline

13. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

General section 19 duty

14. 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.

Educational provision – available and accessible

15. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Key facts

16. Mrs X’s son, Z, was attending a mainstream school in May 2021 when an EHC plan was issued. Mrs X contacted the Council in November 2022 saying Z was anxious after an incident in school and she was considering removing him. The Council recommended to work with the school to ensure Z’s needs were met rather than move him to another school within his GCSE year. Following this discussion the annual review was carried out.
17. A meeting to review Z’s EHC plan was held at the school on 29 November 2022. It was noted that Z’s attendance was not a concern at that time. Mrs X says that Z stopped attending school regularly in December 2022.
18. Mrs X contacted the Council on 16 December and requested that it send consultations to local secondary schools to see if Z could transfer. The Council says Mrs X told it that the school’s behaviour policy was having a negative impact on Z’s mental health. The Council’s opinion was that it would be difficult to place Z at another secondary school due to him being halfway through year 11. Mrs X and the Council discussed implications of Z not attending and whether a doctor’s note would be helpful.
19. The Council sent consultations to three local schools the same day. All three declined to offer Z a place. There is nothing on file to indicate this information was shared with Mrs X.
20. The Council officer spoke with the school’s SENCo (Special Educational Needs Co-ordinator) on 2 February 2023. The SENCo confirmed that Z had not been attending school other than for his mock GCSE exams. The SENCo said that Z did not appear anxious and was able to access the examinations as well as going to the school canteen with friends. The SENCo said the school had suggested a part time timetable but this had been declined by Z’s parents. She also confirmed they had completed home visits and sent work home before stating that the school could meet Z’s needs.
21. In February 2023, Mrs X complained to the Council that it had not met its duty to provide Z a suitable alternative education due to him being out of school. The Council responded on 17 March. It said it was aware Z’s attendance had been poor since and that he has only attended to take his mock GCSE exams. It said this absence had been recorded as unauthorised by the school as no medical evidence has been provided to show that Z is unable to attend school.
22. It said the ECH plan annual review held in November 2002 did not find a medical reason that Z was unable to attend school. It said it considered the school could meet Z’s needs and that it would work with him to achieve his Year 11 outcomes and prepare for his post 16 education.
23. The Council had received the annual review paperwork from the school on 15 March. It accepts it failed to take the appropriate action within four weeks of the review meeting when it should have notified Mrs X of its decision whether to maintain, amend or discontinue the EHC plan. It issued an amendment notice on 13 April and issued the final EHC plan on 10 May. Mrs X’s appeal rights engaged on the date the Council issued the final EHC plan.
24. Mrs X made a formal complaint to the Council on 1 May. She complained about the failure to meet the timescales for the review of the EHC plan. The Council upheld this complaint and acknowledged and apologised for the failures. Mrs X contacted the Council again on 11 May saying she remained dissatisfied and the action taken by the Council did not resolve the situation. She raised the issue of how her right to appeal had been delayed by the Council’s failure to meet the statutory timescales for the annual review. Mrs X was unhappy with the education setting named on Z’s EHC plan.
25. In further correspondence with Mrs X the Council said that there was no medical reason for Z’s non attendance at school and it was considered the school suitably met his needs. It confirmed other settings, including Mrs X’s preference, had been consulted but they confirmed they could not meet Z’s needs and so were not considered a suitable setting.

Analysis

26. Mrs X complains about a lack of alternative education for her son as well as about delays in respect of the EHC plan review. I will deal with each issue in turn.
27. I have seen Z’s attendance report. This shows a high level of attendance until the week beginning 12 December 2022. From January onwards Z rarely attended and from 20 March onwards the school recorded this as unauthorised attendance. I note the school issued a fixed penalty warning to Mrs X on 24 April and advised that medical evidence should be provided each time Z is absent.
28. The duty to provide suitable Section 19 education lies with the Council but it can delegate this duty to a school. The Council has to ensure the education provision is available and accessible. Its duty to provide alternative education under section 19 only applies where there is no available suitable education. I am satisfied the Council properly considered this matter and discussed the situation with both Mrs X and the school before taking the view that the school was offering a suitable education that was available and accessible to Z. There was no medical evidence provided in respect of Z’s absences and he did attend for mock exams. I find no fault in respect of the decision not to offer alternative education provision.
29. However, there was fault in respect of the EHC plan review. There are statutory timescales for the review and amendments to a EHC plan which the Council failed to meet in this case. The whole process from review meeting to issuing of the final EHC plan should be 12 weeks. In this case it took over 23 weeks to complete the process. This meant Mrs X’s right of appeal, which she has now used, was also delayed and she was put to further time and trouble to pursue the matter. The Council accepts it delayed and has apologised to Mrs X. I consider that a further remedy should be provided to recognise the distress caused.
30. Z moved to post 16 provision in September 2023. This means that an EHC plan naming the post 16 institution should have been completed by 31 March 2023. The Council accepts that it failed to meet this timescale which is fault and again delayed Mrs X’s right to appeal.

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Agreed action

31. To remedy the injustice caused by the fault identified above the Council will, within one month of my final decision, take the following action:
• Make Mrs X a symbolic payment of £300 to recognise her distress and time and trouble in pursuing this matter; and
• Remind staff of the importance of meeting statutory timescales in respect of EHC plans and confirm that procedures are in place to ensure timescales are met in all cases.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman