• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council did not deliver suitable alternative provision or found a suitable school placement for her son. We have found fault with the Council for delays in providing alternative education when Mrs X’s son was out of school. We have also found fault with the Council for not issuing an amended Education Health and Care Plan following the annual review.

The complaint

1. Mrs X complained that her son (Y), who has an Education Health and Care (EHC) Plan, has been out of school since September 2022. She said the Council has not found a suitable school placement and has not delivered suitable alternative provision for him.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I cannot investigate the naming of a school in an EHC Plan. Mrs X could appeal to the First-tier Tribunal (Special Educational Needs and Disability). I have investigated the delays during the EHC Plan annual review process.
5. I have investigated the Council’s actions in relation to its Section 19 duty and whether it ensured that Y received a suitable education. I have covered the period from January 2023 as Mrs X could have brought her complaint to us sooner.

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How I considered this complaint

6. I have considered Mrs X’s complaint and have spoken to her about it.
7. I have also considered the Council’s response to Mrs X and to my enquiries.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

The law and guidance

EHC Plan timescales

10. 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.
11. 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.
12. 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)
13. 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.

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.
15. 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)
16. 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)

What happened

Events leading up to January 2023

17. In June 2022, Mrs X’s son, Y was referred to the Council for an Education Health and Care (EHC) needs assessment. The Council agreed to assess Y in July. The Council said there were delays in carrying out the EHC needs assessment due to the lack of availability of educational psychologists (EPs).
18. In September 2022, Y stopped attending school. As the Council was involved from an EHC Plan perspective, the headteacher did not think it appropriate for the Council to involve the inclusion service as well. The Council was satisfied that the school was using two agencies to provide AP education and improve Y’s attendance.
19. The Council issued a draft EHC Plan in December 2022. This said that Y needed a specialist school setting.

Final EHC Plan issued

In January 2023, the Council issued Y’s final EHC Plan. This named his current mainstream school. The Council said this is so that Y can access AP through the school and also to give Mrs X an opportunity to appeal the EHC Plan. Mrs X did not appeal as the Council maintained that Y needed a specialist setting and agreed to consult with specialist schools.

Alternative Provision

20. Once the Council had issued Y’s final EHC Plan in January 2023, the Council agreed to fund alternative provision for Y while it consulted specialist schools for long term provision.
21. In May 2023, the Council contacted an Alternative Provision (AP) service that provides education to children who cannot attend school. After an incident during a home visit in June, the service said it could not offer Y any support due to health and safety risks.
22. In July, the Council approved 12 hours a week with an AP provider to start in September 2023. The Council was satisfied that the provision was appropriate and due to the intensive nature of the sessions and the need for two adults to be present, the current package was as much as Y could tolerate.

Specialist school consultation

23. During 2023, the Council consulted nine specialist schools including parental preference schools. Six of these responded that they could not meet Y’s needs. Two are being chased by the Council for a response. One (School A) has said it can meet Y’s needs and offered Mrs X and Y a tour. Mrs X declined the offer. She said she had read School A’s OFSTED and spoken to other parents and did not think it was the right setting for Y.
24. In December 2023, Mrs X asked the Council to take Y’s case back to panel. She said she believed that an autistic school would be better than a social, emotional and mental health (SEMH) school (School A) for Y.

Annual review of EHC Plan

25. In January 2024, the Council carried out an annual review of Y’s EHC Plan. This set out the AP that Y was receiving. The Council approved AP funding until the end of the year. At present (July 2024), the Council has not issued an amended draft EHC Plan for Y.

My findings

Missed education

26. At the time of my investigation, Y has been out of school for two school years. I have investigated the period from January 2023 when the Council issued Y’s EHC Plan.
27. From the evidence I have seen, the Council were in contact with various AP providers as well as consulting specialist schools. However, Y did not start with his current AP provider until September 2023. This meant the Council did not fulfil its section 19 duty and Y did not receive a suitable education two school terms. This was fault. I have recommended the Council apologise to Mrs X and pay her £1000 per term (£2000 total) in recognition of the missed provision.
28. From September 2023 until present, Y received 12 hours a week from an AP service. During the annual review process, the Council was satisfied that this was the right type and amount of AP for Y.

Amended EHC plan delay

29. Despite the Council holding an annual review in January 2024, it did not issue the amended EHC Plan. This delayed Mrs X’s opportunity to appeal. This was fault.
30. The Council has agreed to apologise to Mrs X for the delay, pay her £500 for the avoidable distress caused and issue an amended final EHC Plan as soon as possible.

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Agreed action

31. Within 4 weeks of my decision, the Council has agreed to:
    • 1. Apologise to Mrs X for the missed education provision and for the delay issuing a final EHC Plan following the annual review, both of which caused the family avoidable distress.
      2. Pay Mrs X £2000 in recognition of the two terms of missed education provision.
      3. Pay Mrs X £500 for the avoidable distress experienced by the delayed right of appeal.
32. Within 12 weeks of my decision, the Council should:
    • 1. Issue Y’s amended EHC Plan.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. I have found the Council at fault for failing to deliver suitable alternative provision for Y when he was out of school and for delaying Y’s amended EHC Plan following the annual review.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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