Summary: Mrs X complains the Council failed to provide alternative education provision for Child J, despite being aware he was not receiving a suitable education. Mrs X also complains the Council did not secure provision for Child J, leading her to incur costs to do so, and delayed issuing Child J’s Education, Health and Care (EHC) Plan. We have found the Council at fault for failing to respond to an annual review and for delays in issuing Child J’s EHC Plan. We have found the Council did not properly consider its duty to provide alternative provision to Child J. We have also found faults in complaint handling. These faults caused an injustice to Mrs X and Child J. We have made recommendations to remedy this injustice.

The complaint

1. Mrs X complains the Council:
1. failed to provide alternative education provision for Child J over a prolonged period, despite being aware he could not attend school and was not receiving suitable education.
2. failed to fully secure the special education provision in Child J’s Education, Health and Care (EHC) Plan, resulting in her arranging this directly and incurring financial costs to do so; and
3. failed to issue an amended final EHC Plan within the statutory timeframe, denying her a timely right of appeal.
2. Mrs X says this caused Child J significant anxiety and distress, affecting his educational and social attainment. She says the Council’s faults have also caused her avoidable frustration, uncertainty and distress.

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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 an injustice, 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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How I considered this complaint

5. I discussed the complaint with Mrs X and considered information she provided.
6. I considered information the Council provided about the complaint.
7. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
8. 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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Relevant legislation, guidance and policy

Education, Health and Care Plans

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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
11. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Arrangements for reviewing an EHC Plan

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. 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)
14. 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)
15. 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)
16. 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. 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.

Appeal rights and Ombudsman’s jurisdiction

17. 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)
18. 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.
19. 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, or if the appeal is withdrawn or conceded.

Alternative provision/Section 19 duty

20. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. 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)
22. 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))
23. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
24. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Part-time timetables

25. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
26. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of sight?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Council’s Complaints procedure

27. The Council’s complaints procedure sets out how it considers and responds to the complaints it receives. Relevant to this complaint, the Council operates a two-stage corporate complaints procedure.
28. At stage one of the procedure, the Council says it will respond within 10 working days. It says in cases where this is not possible, it will agree a new timescale with the complainant.
29. The second stage of the Council's complaints procedure is the review stage. The Council says requests for reviews should be made within one month of a stage 1 complaint response. It says reviews will be considered by a senior manager and the Council will aim to respond within 20 working days. If this is not possible, the Council says it will agree a new complaint timescale.
30. The Council also says it may sometimes advise complainants to go directly to the Ombudsman, instead of carrying out a stage two complaint review. It says this will happen if:
• There is no new evidence.
• The case is long standing and has already been fully considered.
• The Council feels it can add nothing through a review or further complaint response.

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What I found

Summary of key events

31. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
32. Mrs X’s child, referred to in this statement as Child J, has an EHC Plan.
33. In November 2022, Mrs X wrote to the Council to request an immediate review of Child J’s EHC Plan. She also requested the Council put alternative provision in place. The Council told Mrs X that Child J’s education arrangements could be discussed at the requested review. Around the same time, School Z told the Council Child J was not attending school.
34. The review took place on 15 December 2022. Paperwork from that review shows those present agreed Child J’s needs had changed. The notes confirmed Child J had not attended School Z for six weeks. The notes also showed School Z had proposed a reduced timetable, to begin in January 2023, which it would review in six weeks. It said the current resourcing and provision was not meeting Child J’s needs. The notes said School Z would be unable to resource this personalised learning environment for Child J without extra funding.
35. In February 2023, Mrs X complained to the Council about its failure to respond to the emergency review held in December 2022. There was a further annual review of Child J’s EHC Plan. The paperwork shows the conclusions were largely the same as those reached in the December 2022 review. Those present agreed the EHC Plan did not reflect Child J’s needs. The notes show School Z had put in place a reduced timetable since the beginning of 2023. It intended to implement an amended timetable for Child J in February 2023, which would then be reviewed after four weeks. School Z said it required extra funding for this, which the Council agreed to.
36. In March 2023, Mrs X told the Council she had tried everything proposed, but Child J had not had access to full time education since late 2022. Measures such as a reduced timetable had not worked. Mrs X said the Council needed to provide alternative provision, or move Child J to specialist provision, equivalent of full time, immediately. The Council replied, advising it planned to discuss Child J’s educational arrangements shortly. It said it would update Mrs X once it had reviewed the matter. Mrs X continued to raise concerns about the arrangements in place.
37. Between March and May 2023, the Council issued two amended draft EHC Plans. Mrs X complained to the Council about the content of the plans and the Council’s delay in amending Child J’s EHC Plan. The Council told Mrs X it would merge her newest complaint, about the delay issuing an amended final EHC Plan, with a previous complaint about a failure to provide alternative provision. Mrs X asked the Council to keep the complaints separate.
38. The Council replied to both complaints in one response on 19 May 2023. On a failure to provide alternative provision, the Council:
1. Said it had agreed to School Z’s proposal to provide 1:1 support for three-and-a-half hours per day, and private 1:1 tuition with a specialist dyslexia tutor for 3 hours per week. It had also agreed to third-party counselling sessions, for 10 minutes twice a week.
2. Said it had agreed the extra support in February 2023. It said it anticipated the added pastoral support, specialist tutoring and counselling would help Child J have positive experiences and reintegrate with school.
3. Said it had agreed the support and added it should be reviewed over time, and adapted where needed.
4. Said it had acted on the request for more support and had provided School Z with extra resources. It said this provision complied with professional recommendations set out in a medical report the Council received in January 2023.
5. Said it understood Child J was on a reduced timetable by agreement with Mrs X and School Z. It said the extra provision had been implemented in line with the arrangements agreed between Mrs X and School Z.
6. Accepted there had been a delay between the request for alternative provision, made during the interim review held in December 2022, and the Council agreeing to provide resources in February 2023.
39. About a failure to adhere to statutory timescales, the Council:
1. Said it had not responded to the first annual review paperwork it received on 30 December 2022. It had therefore not told Mrs X if it would maintain, amend or cease the plan. It said there may have been confusion due to the fact another annual review would be held a few months later in February. The Council accepted it should have issued a decision and apologised it did not.
2. Said it issued a decision to amend Child J’s EHC Plan within the statutory timescale following the annual review held in February 2023.
3. Said it had corresponded with Mrs X about the proposed amendments and had held a meeting to discuss them. It said when proposed amendments were extensive, it took time to address them. The Council said it had remained in continuous contact with Mrs X throughout. It said it would have issued the EHC Plan within the statutory timeframes, had added work not being required.
4. Identified points of learning and improvement:
1. The Council should respond to annual reviews within statutory time scales.
2. Regular contact was important when the Council had agreed to amend the EHC Plan.
3. The Council accepted a delay between School Z seeking extra provision and the Council agreeing this. The Council said it was exploring ways to make swifter, more responsive decisions.
5. The Council apologised that a complaint had been necessary.
40. On 24 May 2023, the Council sent Mrs X the final amended EHC Plan for Child J. In its covering letter, the Council said it had amended the plan to reflect the changes agreed. It said the plan would be reviewed once a year through the annual review procedure. It provided Mrs X with the right of appeal to the SEND Tribunal.
41. On 26 May 2023, Mrs X asked the Council to escalate her complaint to the second stage of its complaints procedure.
42. On 9 June 2023, the Council wrote to Mrs X to state it would not review her complaint at stage two of its complaints procedure. It believed it had responded fully at stage one.

Analysis

Failure to adhere to statutory timescales

43. Paragraphs 12-15 set out the statutory timescales for reviews and amending EHC Plans. Local authorities can require schools to hold the reviews on behalf of the authority. This is the arrangement in place between School Z and the Council. However, as the Council is delegating this responsibility to School Z, the Council remains responsible for the overall administration of the process.
44. In this case, School Z agreed to hold an early emergency review of Child J’s EHC Plan. The guidance requires School Z to prepare and circulate a report of the review meeting within two weeks. This is what happened: School Z held the review on 15 December and sent the Council the report and associated paperwork on 30 December.
45. Within four weeks of the review meeting, the Council should have decided whether it proposed to amend, maintain or cease Child J’s EHC Plan. It should then have written to Mrs X to confirm its decision. This should therefore have happened on or around 17 January 2023. The Council did not respond to the annual review paperwork, or write to Mrs X with a decision. I have found the Council at fault for this.
46. The Council said it issued a decision to amend Child J’s EHC Plan within statutory timescales, following the annual review held in February 2023. However, given the Council should have issued this decision on or around the 17 January 2023, there was an overall delay of around seven weeks in issuing its decision. I have found the Council at fault for this.
47. Had the Council properly responded to the review held in December 2022, it could, and likely would, have issued the amended final EHC Plan much sooner. The sequence of events suggests the Council could have issued a draft EHC Plan on 17 January 2023, had it properly responded to the annual review held in December 2022. It should then have issued a final EHC Plan on or around 14 March 2023. In the event, the Council issued the plan on 24 May 2023, around 10 weeks late overall. I have found the Council at fault for this.
48. These faults caused an injustice. Not responding to the December 2022 annual review, and then delaying issuing the amended final EHC Plan, caused Mrs X and Child J avoidable frustration and uncertainty. It also delayed Mrs X obtaining her right to appeal the content of the EHC Plan to the SEND Tribunal.

Alternative provision

49. I have considered the Council’s decisions about Child J’s education arrangements from late 2022 until the point the Council issued Child J’s EHC Plan in May 2023. I cannot consider any lack of education after this date, for the reasons set out in paragraphs 17-19. Child J’s lack of education after this time is directly linked to whether the education setting and content of his EHC Plan was suitable for his needs. Mrs X appealed Sections B, F and I of the EHC Plan to the SEND Tribunal.
50. Mrs X asked the Council to arrange alternative provision for Child J on 14 November 2022. Child J had been out of school for 13 days by that time. School Z also told the Council Child J was not attending school.
51. Given that Child J was already out of school, the Council should have quickly decided whether it owed Child J a section 19 duty. It should have liaised with relevant medical professionals to help decide, if needed. If it decided it owed a duty, the Council should have ensured provision was quickly in place. If it decided it did not owe a duty, it should have written to Mrs X to explain why.
52. The Council did not decide whether it owed a duty, or seek professional advice. Instead, it told Mrs X that the upcoming emergency review could consider any concerns about Child J’s education. I have found the Council at fault for failing to consider whether it owed Child J a section 19 duty.
53. At the review held in December 2022, School Z confirmed it planned a reduced timetable for January 2023, but stated Child J had not attended school for five weeks. School Z said it had so far been unable to set up a timetable, and had provided work packs for Child J to complete. Work packs assigned for completion at home may be acceptable during the first few days of a child’s absence, but they are not an equivalent to teaching. The Council therefore had clear notice from School Z that Child J was not receiving an education in November and December 2022. The Council’s fault therefore caused Child J an injustice, in the form of missed education provision for this period.
54. School Z set up a reduced timetable in January 2023. It then proposed an amended timetable beginning in February 2023, which it said would be reviewed after four weeks.
55. I asked the Council how it had considered if it owed Child J a section 19 duty, and how it had satisfied itself the education given to Child J was suitable and the equivalent of full-time education. The Council told me:
1. It was clear the provision needed to be adapted to support Child J.
2. The Council agreed to the timetable proposed by School Z, to ensure it sufficiently resourced School Z to commission the extra support.
3. The Council anticipated the extra support and specialist tutoring would support Child J’s reengagement with school. It said this expectation was consistent with medical advice it received in January 2023.
4. The Council said School Z should review the provision regularly, adapt it if needed, and carry out a further review if there were any significant changes in need.
5. The Council believed it had acted to provide School Z with extra support. It understood Child J was on a reduced timetable, so the added provision agreed was in line with the agreement between School Z and Child J’s family.
56. Setting up a reduced timetable was not fault. However, as set out in paragraph 25, part-time timetables are not a permanent solution. They are acceptable when used for reintegration, as was the plan here. However, the Council should keep any part-time timetables under review, as set out in paragraph 26, being prepared to increase provision if a child’s capacity to learn increases.
57. I have seen no evidence the Council reviewed the reduced timetable after four weeks. In March and April 2023, more than four weeks after the implementation of the timetable, Mrs X plainly told the Council these arrangements were not working. She asked the Council to put alternative provision arrangements in place while the EHC Plan was being reviewed. I have seen no evidence the Council responded to these concerns before it replied to Mrs X’s complaint. When it did respond, it only reiterated Mrs X had agreed to a reduced timetable and said it had agreed the added support, which should be reviewed as needed.
58. The comments included in the annual review suggest Child J was receiving some education provision during January 2023 and February 2023, up to when School Z set up an amended reduced timetable. I understand the amended timetable remained in place thereafter. It is clear Child J’s health was a factor in the level of engagement, and there was an intent to build up engagement over time.
59. However, the Council acted with fault in not reviewing these arrangements. The Council missed an opportunity to adapt or increase provision as needed. It also acted with fault by not addressing Mrs X’s specific concerns. It failed to turn its mind to whether the education Child J was receiving was objectively suitable, given Mrs X’s clear views it was not. I have seen no evidence the Council considered whether the education in place was all the provision Child J could manage, or whether it should do more to ensure Child J was accessing suitable education.
60. These faults caused Mrs X and Child J an injustice. I recognise Mrs X’s strongly held view the provision in place was inadequate. However, we cannot know on balance what education arrangements the Council would have decided were suitable, had it properly carried out its duty. The Council may, for example, have decided the support provided was sufficient at that time and not made any changes. The injustice caused is distress and uncertainty about whether the Council could have done more to improve Child J’s educational arrangements from March 2023 to May 2023, had it acted without these faults.

Costs for provision

61. Mrs X provided the Ombudsman with evidence she had directly paid for Child J’s private dyslexia tutor since December 2022. She provided copies of invoices showing she had made intermittent payments from December 2022 to mid-2023.
62. The Council told me it had agreed funding with School Z in February 2023 and the cost of dyslexia tutoring should have been met by School Z. It said it had confirmed this was the case from October 2023. In its complaint response to Mrs X, the Council recognised there was a delay in it agreeing the extra funding. I recognise the Council accepts it acted with fault in this delay.
63. The evidence I have seen suggests Mrs X paid for provision for Child J, when this should not have been necessary. Given the Council’s assertion it made funding available from at least February 2023, and should have made it available sooner, it is unclear why this is the case. This is an injustice to Mrs X. I have recommended the Council act to address this.

Complaint handling

64. Mrs X complained to the Council in February 2023 about its failure to respond to the emergency review. I have not seen evidence the Council responded to this complaint. I have found the Council at fault for this.
65. Mrs X complained to the Council in April 2023 about its failure to provide alternative provision for Child J. I have found the Council at fault for how it handled this complaint. It failed to respond to this complaint within 10 working days and did not write to Mrs X to agree a new deadline.
66. When Mrs X made a separate complaint in May 2023, about the Council’s failure to issue the EHC Plan within statutory timescales, the Council issued a single response to both complaints in May 2023. This was despite Mrs X asking the Council to respond to these complaints separately.
67. These faults caused Mrs X avoidable frustration and time and trouble.

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Agreed action

68. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Remind staff of its duties under law and guidance to provide alternative provision when a child of statutory school age is out of school for health reasons. The Council should share a copy of our focus report ‘Out of school…. Out of sight?’ and our final decision with the reminder.
3. Pay Mrs X £300 in recognition of the time and trouble caused by the faults in the Council’s complaint handling, and the avoidable distress caused by the delay in issuing a final amended EHC Plan and delaying a timely right of appeal.
4. Pay Mrs X a further £1700 in respect of Child J’s educational provision, which is broken down as follows:
1. £1100 for the period in November and December 2022, where the Council had notice from School Z that Child J was not attending school and received minimal education provision, but failed to consider this or act to address it.
2. £600 for the uncertainty caused by the Council failing to sufficiently consider the suitability of Child J’s education arrangements from March 2023 to May 2023.
3. In making these recommendations, I have had regard to the Ombudsman’s Guidance on Remedies.
69. Within six weeks of the final decision being issued, the Council has agreed to:
1. Ask Mrs X to provide copies of the costs she incurred for Child J’s dyslexia tutor between November 2022 and May 2023. The Council should review these costs and consider reimbursing any fees which the Council should have met as part of its funding arrangements with School Z. The Council should write to Mrs X to confirm which costs it will reimburse and why. It should provide a copy of this correspondence to the Ombudsman.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman