Summary: The Council was at fault because it did not issue an amended EHC Plan for Y within statutory timescales. This caused avoidable frustration, distress, uncertainty and a delay in appeal rights. The Council did not secure educational provision in Y’s Education, Health and Care Plan for half a term. This caused Y a loss of educational provision to which he had a legal entitlement. The Council will apologise, make payments of £150 to Ms X and £1000 to Y and issue Y’s amended Education Health and Care Plan without further delay.

The complaint

1. Ms X complained the Council failed to provide her son Y with alternative education provision when his school placement broke down. She says this has had a negative impact on his mental health and progress and has caused her avoidable distress.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. 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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What I have and have not investigated

6. I have investigated from January 2023 to March 2024. Ms X refers to Y being out of school for three or more years, but these matters are late and she has no good reason for the delay complaining to us.

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How I considered this complaint

7. I considered the complaint to us, the Council’s responses and documents summarised in this statement. I discussed the complaint with Ms X.
8. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

9. A child or young person with special educational needs may have an 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 their needs, education, or the name of the educational placement. Only the SEND Tribunal or 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 2014). 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. The council must arrange for an 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.

14. The parent should have at least 15 calendar days to make representations on proposed changes including requesting a particular educational placement to be named in the Plan.
15. Following parental representations, the council must issue the amended final Plan within eight weeks of the amendment notice.
16. 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.
17. 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))
18. 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)
19. 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’)
20. 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 mind?”, 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.

What happened

2023

21. Y is autistic and has complex emotional, behavioural and learning difficulties. He has an EHC Plan of January 2023 naming School A, a mainstream primary school as his educational placement. The Plan referred to Y having had fixed term exclusions for challenging behaviour. The Plan went on to say:
• Y was dual registered at Provider B (an alternative education provider) and at School A from September 2022. (Dual registered means a child is on the roll of more than one school or educational placement).
• Initially provision at Provider B was for 1.5 hours each morning and Y had a one-to-one Teaching Assistant and limited interaction with peers. Over time, the provision increased to three full days and two half days where he received one-to-one support at all times.
22. Ms X contacted her MP in February about Y’s education. The Council wrote to the MP in March saying Provider B had recently given notice that the placement would cease at the end of March. It said it was working with Ms X to support Y to return to a suitable educational placement and was searching for a suitable alternative education provider.
23. The Council’s internal records show it consulted with 14 educational placements in March 2023. Two responded saying they may be able to meet Y’s needs and asked to meet him. It is unclear from the records whether meetings took place and those placements appear not to have been pursued.
24. Ms X told us the placement at Provider B ended at the start of April and Provider C (another alternative education provider) started in June.
25. The Council consulted with School D in June and Provider B in July. There is no record of Provider B replying. School D said it wanted to see Y before making a decision. The evidence shows Ms X said she did not want Y to visit at that time and she had concerns about the distance from home (over an hour by car).
26. There were two meetings in November and December to complete an annual review of Y’s EHC Plan. The minutes said:
• Y had not attended School A since the summer term of 2022
• Y was attending a therapeutic alternative education provider (Provider C). He was getting on very well there. The timetable was 10 hours a week at Provider C plus one hour of individual tuition. The recommendation was to increase Provider C to 15 hours and the tutor to two hours.
• The placement in the EHC Plan needed amending.
27. The Council issued a decision to amend Y’s EHC Plan on 18 December 2023. Its letter said it was consulting with School D.
28. Ms X complained to the Council about Y’s education provision. The Council’s response in December said:
• Y was on roll at School A and it was responsible for his education.
• The Council led support including calling annual reviews because it recognised her relationship with School A had broken down.
• From September 2023, it organised AP at Provider C to support Y’s mental health while working with her to find a long-term setting. Y attended for 10 hours a week. It was working well.
• Professionals consider Y was calmer and happier.
• School A put in place a private tutor and tuition took place at the Provider.
• The Council was completing searches for placements regularly.
• School E agreed to meet Y in January 2024
• Options in the local area are limited and she said Y does not travel well.
• She visited School D in December.

2024

29. The Council told us School D confirmed there was place for Y subject to the Council agreeing additional funding. The Council went on to say it had not made a decision about exceptional funding. It did not explain why, but it told us this was a matter for senior management.

Findings

January to end of March 2023

30. The Council arranged a placement at Provider B, an alternative provider and Y received one-to one support. This was not full-time education, but the evidence shows that on balance, Y could not cope with any more hours. In any case, one-to-one provision need not be full-time as it is more intensive. The Council acted in line with the duty in Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996 during this period and there is no fault.

First half term of the Summer Term of 2023 (April to the end of May)

31. The records indicate Y had no educational provision for the first half term of the summer term of 2023. The placement at Provider B ended at Easter and Provider C did not start until June. This was not in line with the duty in Section 42 of the Children and Families Act 2014 or Section 19 of the Education Act 1996. Y has a loss of half a term of educational provision.

June 2023 onwards

32. The Council has acted in line with the duty in Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014 since Provider C started in June 2023. It has put in place suitable AP for Y. The records indicate provision has been monitored periodically, reviewed and increased over time, with individual tuition added in November. Provision increased from 10 to 15 hours as and when Y could cope with more.

The amendment process after the annual review meetings in November and December 2023

33. The Council is at fault because:
• It did not issue an amendment notice with a draft Plan within four weeks of the annual review meeting in the middle of December 2023 and
• It has not issued a final amended Plan within eight weeks of the amendment notice.
34. There should have been an amended EHC Plan within 12 weeks of the annual review meeting in December 2023 so by the middle of March 2024. The Council’s fault caused avoidable distress, frustration, uncertainty and a delay in appeal rights. There is still no amended Plan at the time of writing this statement (October 2024), so the fault and injustice is continuing.

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Agreed action

35. The Council will, within one month:
• Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make Ms X a symbolic payment of £150 to reflect the injustice described in paragraph 34.
• Make Y a payment of £1000 to reflect the lack of special educational provision for half a term (see paragraph 31).
• Issue Y’s amended EHC Plan without further delay.
36. The Council should provide us with evidence it has complied with the actions in paragraph 35.

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Final decision

37. The Council was at fault because it did not issue an amended EHC Plan for Y. This caused avoidable frustration, distress, uncertainty and a delay in appeal rights. The Council did not secure educational provision in Y’s Education, Health and Care Plan for half a term. This caused Y a loss of educational provision to which he had a legal entitlement. The Council will apologise, make payments of £150 to Ms X and £1000 to Y and issue Y’s amended Education Health and Care Plan without further delay.
38. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman