Summary: Ms X complains the Council was at fault in the way it responded to her requests for alternative educational provision for her daughter when she was out of school causing distress and loss of educational opportunity. We found no evidence of fault in the way the Council responded to Ms X’s request for alternative provision. We found fault in the way the Council dealt with the annual review as it did not meet the statutory timescales. We have recommended a suitable remedy for the injustice caused in this case so have completed our investigation.

The complaint

1. Ms X complains there were failings in the way the Council responded to her concerns her daughter Y was out of school in 2024 and provided her with alternative educational provision. Ms X says this has caused her and Y distress and Y has suffered lost educational opportunity.

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The Ombudsman’s role and powers

2. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A (1), as amended)
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. 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)
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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What I have and have not investigated

9. I have investigated matters from January 2024, when Ms X raised concerns Y was not attending school, until June 2024 when the Council issued a revised EHC Plan. I have not investigated any concerns Ms X may have about Y attending school on a reduced timetable in 2023. This is because I consider Ms X could have raised concerns with us sooner and her complaints about this are late. In addition, the Council issued an EHC Plan in August 2023. So, Ms X had the right of appeal to the SEND Tribunal if she did not agree to the EHC Plan including the setting and provision. We would consider it reasonable for Ms X to have used that right of appeal.
10. I have not investigated matters after June 2024. If Ms X has any complaints about issues after this date, then she needs to complain to the Council in first instance, so it has an opportunity to consider her concerns. In addition, as the Council issued an EHC Plan in June 2024 Ms X had appeal rights which would expect her to use if she disagreed with the EHC Plan. And as Ms X has now exercised her appeal rights to the SEND Tribunal, we will not investigate a complaint about the same matter.

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How I considered this complaint

11. As part of my investigation, I have:
• considered Ms X’s complaint, the information she provided, and discussed the complaint with her;
• considered the Council’s responses to the complaint and the information it provided; and
• had regard to the relevant law guidance and policy to the complaint.
12. Ms X and the Council 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

Law and Guidance

Education Health and Care plan

13. 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.

Maintaining the EHC plan

14. 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)
15. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviewing EHC Plans

16. 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.
17. 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)
18. 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.

Appeal rights

19. There is a right of appeal to the Tribunal including:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan.

Section 19 Duty (alternative provision)

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 provision.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))

What happened in this case

Background information

22. Y attended a primary school and was diagnosed with ASD and other medical conditions in February 2023. The Council carried out an EHC needs assessment on Y in April 2023 following a request from the school and issued an EHC Plan in July 2023. The Council issued a final EHC Plan in August 2023 naming Y’s school as her placement in the resourced provision at the school. The EHC Plan contained support for Y to integrate back into school. In section F the EHC Plan said that some interventions suggested may not be able to be implemented until Y felt able to go into a school setting more consistently. And the frequency of activities may change depending on Y’s needs.
23. From January 2023 until July 2023 the school and Ms X agreed Y should be on a reduced timetable to support her transition into school. Y agreed with Ms X to return to school full time in September 2023.

Events 2024

24. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
25. In January 2024 Ms X asked the Council to carry out an early/emergency review of the EHC Plan as Y did not attend school for 11 days in December 2023. Ms X said Y was distressed and the placement not meeting her needs.
26. The Council held the emergency annual review on 2 February 2024. Ms X asked about Education Other Than at School (EOTAS) for Y. An officer advised the Council would only offer access to EOTAS once it had exhausted all school settings/provision as it may be a different or specialist setting could meet Y’s needs. The officer said the Council would follow the annual review process to see if Y needed a change of placement.
27. Ms X complained to the Council in February 2024 it had failed to provide Y with section 19 education. Ms X said she had formally requested EOTAS in February 2024 but received no acknowledgement or response. And Y’s recorded attendance at school did not reflect the true picture as she was usually sent home after 1.5 hours being unable to cope. Ms X said she had asked the school to provide alternative education. But told it was not possible as Y’s EHC Plan funding was used for staffing and resources in the resource provision she attended. Ms X said this followed a significant loss of education to Y during the 2022-23 academic year because she was placed on a reduced timetable between February to July 2023.
28. In March 2024 an officer asked the school to contact the Council’s attendance team for support and make a referral to the medical team if considered suitable.
29. The Council acknowledged Ms X’s complaint at Stage 1 of the complaint procedure. It advised its children’s social care service was undergoing a 3-week Ofsted inspection so could not respond until 15 March 2024. Ms X was unhappy with the Council’s response and asked to go to Stage 2 of the complaint procedure.
30. Y’s school submitted the annual review paperwork. It explained it had been providing Y with 1:1 support since September 2023. This was not funded by the Council, but the school put it in place in her best interests. The school confirmed it had discussed home visits with Ms X, but she did not want anyone visiting Y for Maths or English as she was not able to engage in this, restricting what it could offer. The school said it was seeking advice on creative therapy sessions for Y. It was aware sending work home could be a trigger for Y, and she would not engage in learning at home. However, the school would arrange for it to be organised as well as the regular visits to home. But it was aware of not wanting to add to the difficult situation Ms X already had because of Y’s mental health. The school said it had reviewed Y’s case with an Educational Psychologist (EP).
31. The annual review report also noted during the short time Y had been in the resource provision at the school her needs had increased considerably. It reported Y had a bespoke timetable, 1:1 support and a sensory space. But had struggled to attend school consistently due to high anxiety levels. It said Y needed intensive therapeutic input from trained professionals before she would be able to access a school-based setting. The report noted Y did not appear to be engaging with any regular or meaningful learning and was unable to join in with craft activities at home without becoming dysregulated. The school supported Ms X’s request for EOTAS for Y.
32. Ms X chased for an update of the review. Ms X complained Y was still not receiving any education or provision which was frustrating. Ms X confirmed Y was accessing a therapeutic intervention, which she was privately funding but could not sustain this.
33. A Special Educational Needs (SEN) officer confirmed to Ms X they had submitted the EOTAS request to the Council’s SEN panel for a decision. The Council asked Ms X for an extension until May 2024 to respond to the stage 2 complaint. Ms X agreed, and the Council said it would offer a symbolic time and trouble payment in recognition of the delay.
34. The SEN officer provided Ms X with an update after the panel hearing in April 2024. It had been agreed to consult further settings and seek advice for outreach strategies. This would enable the Council to see whether specialist schools could meet Y’s needs or not. This was because it cannot say a specialist provision would not be able to meet Y’s needs without consulting them. So, it must ensure no other educational setting could deliver the provision before looking at the EOTAS option. The officer said the school needed to make a referral through the outreach service and to the EP service as a complex case. The Council consulted with several schools.
35. A senior officer responded to Ms X’s Stage 2 complaint in April 2024. The officer upheld the complaint and said the Council had made education available for Y but there were still questions over suitability. Y had been out of education from December 2023 until April 2024 which could be damaging for plans to resettle her back into education. And the Attendance team could have been notified sooner.
36. The officer found the Council failed to respond to Ms X’s stage 1 complaint in February 2024 according to policy and guidance. The officer considered Ms X did not receive a response to her formal request for a change of Y’s placement in February 2024. The Council apologised to Ms X. It acknowledged the delay in handling her complaint and offered a payment of £150 for her time and trouble caused.
37. In April 2024 the Council told the school to make referral to its Attendance and Inclusion panel, to an EP for consultation as a complex case, for outreach services and report for strategies. Y’s school confirmed it had been taking actions as required.
38. The SEN panel considered Y’s case again and agreed to alternative provision for Y. In May 2024 Y started alternative provision with creative therapy sessions funded by the school.
39. Ms X complained to us in April 2024 the Council had not been able to provide any education or advice about Y receiving teaching of the full curriculum. Ms X considered Y should be receiving her full curriculum entitlement including subjects such as Maths, English, Science, Art and Computing. Ms X said as Y missed the first few months of KS1 and was now entering KS2 she should be given the chance to catch up.
40. The Council issued a proposed amended EHC Plan on 17 May 2024. It said the SEN panel did not agree to an EOTAS package for Y. But did agree to providing alternative provision to meet the provision named in section F of the EHC Plan. So, Y would stay on roll at her school but would receive alternative provision to meet her needs within the EHC Plan.
41. The Council issued the Final EHC plan issued on 20 May 2024. It held meetings with Y’s school about the alternative provision. The Council arranged more alternative provision starting in May 2024, to continue over the summer holidays.

Events after revised EHC Plan issued

42. In June 2024 the SEN officer and school discussed the alternative provision. The officer noted Ms X wanted the Council to consult with further specialist settings and sent an email about Y receiving a full curriculum and full-time education. But Ms X own proposals for Y were not inclusive of a full educational curriculum and the understanding was that Y could not attend any setting regardless of whether it was specialist or mainstream.
43. The SEN officer also discussed the alternative provision with Ms X in July 2024. The officer confirmed the panel discussed several different alternative provisions for Y including creative therapy, and swimming. The officer noted Ms X advised she did not know if Y would be able to engage in any of the provisions discussed due to her needs. Ms X said Y could not access on-line tuition style provision, nor one where Ms X was required to teach Y. But considered other provisions would be likely to be successful such as the creative therapy
44. The officer confirmed to Ms X the panel agreed the Council would commission the provision and monitor how Y was managing with a view to increasing provision if she were able to engage. The officer said the school advised this has been actioned.
45. Ms X appealed to the SEND Tribunal in July 2024 against Sections B, F & I as she was unhappy with the educational setting. Ms X wanted EOTAS as Y found the alternative provision was not working for her in school. In September 2024 the Council increased the alternative provision sessions further by an hour.

The Council’s comments on the complaint

46. The Council says before being issued with an EHC Plan Y had difficulty in maintaining school attendance due to her medical conditions. Unfortunately, this situation has been ongoing for her for many years, and she has struggled with high levels of anxiety. It had now become overwhelming for Y, and it was determined that full time education was not in her best interests due to the impact on her mental health. Since May 2024 it has worked closely with Y’s school to devise a package of alternative provision. Due to severity of Y’s medical needs the package was devised gradually in line with the volume of provision Y could manage. The package continued over the summer months in 2024 to make up for provision Y had not received previously.
47. Y was due to be seen by CAMHS professionals and the Council awaiting the outcome of this to determine what level of provision and support remains appropriate for Y moving forward. It confirmed the school had been accessing advice from the Attendance and Children Out of School team about Y’s transition timetable. And were recommended to increase it incrementally.
48. The Council confirms Y was not referred into the medical needs tuition team which provides support to children who are unable to access school due to ill health. It says such a referral needs support from a health clinician and this was not provided for Y.

My assessment

Alternative provision

49. The Council has been aware of issues with Y’s attendance at school since 2023 and drew up an EHC Plan with an integration plan in place for Y to attend school. This included suggestions and provisions to be made when Y felt more able to attend a school setting. Ms X asked for an emergency/early review of Y’s EHCP in January 2024 following issues with Y’s placement. The Council responded by carrying out an annual review in February 2024. This is one of the actions we would expect it to do if there were concerns raised about whether a child is receiving the special educational provision in section F of their EHC Plan. The documents show the Council also responded to Ms X’s request about EOTAS and advised it would be considered during the annual review process.
50. As the stage 2 response to Ms X explained the Council was satisfied there was education available to Y, but it was unclear if it was suitable which the annual review would consider. The Council also had a duty from February 2024 to consider whether Y required alternative provision under section 19 because she was out of school and unable to attend. The documents provided show the Council was in consultation with Y’s school during the annual review process about provision. The school confirmed it had offered home visits, but these were declined by Ms X despite requesting that Y should access the full curriculum. The school also sought advice on creative therapy sessions for Y as it was aware these could be triggering for her, and she was not engaging.
51. The evidence provided shows the Council was considering what alternative provision could be made for Y as it was consulting with Y’s school during the annual review. I am satisfied therefore the Council was acting in Y’s best interests and was mindful of its duties to ensure Y was accessing the provision in her EHC Plan and whether to provide alternative provision. Ms X was requesting the full curriculum be provided to Y. However, it is unclear what alternative educational provision would have been suitable for Y and whether with her health needs at that time what she would have been able to cope with.
52. Once the Council and school agreed on alternative provision for Y in May 2024 it arranged provision. While Ms X may have wished for the provision to have been arranged sooner, the Council ensured it remained in place for Y over the summer holidays to make up for any provision Y did not receive in the Spring term. This was suitable action for the Council to take and has ensured Y has not been disadvantaged when alternative provision could not be arranged immediately due to her health needs.

Emergency annual review

53. The Council agreed to carry out an emergency annual review in January 2024 and held the annual review meeting on 2 February 2024. The Regulations and Code required the Council to notify Ms X within four weeks of the review meeting whether it intended to maintain, amend or discontinue the EHC Plan. And if it is to be amended as in Y’s case to send the proposed amendments within the four weeks. So, Ms X should have been advised of the Council’s decision to amend the plan by 1 March 2024. The Council did not send the notification until 17 May 2024, which was 15 weeks after the annual review meeting, 11 weeks over the stated time scales.
54. The delay was fault by the Council. However given the ongoing conversations and offers of alternative provision with Ms X, some of which were refused. And the fact the Council was also actively consulting on specialist educational placements for Y, I consider the injustice caused to Ms X is limited to frustration over delaying her right of appeal if she disagreed with the EHC Plan. In addition, the Council had already put in place some alternative provision for Y. I therefore recommend the Council should apologise to Ms X for the delay, and any frustration caused by the annual review process and delaying her right of appeal.

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Agreed action

55. Within one month of the date of my final decision the Council will apologise in writing to Ms X for the delay and any frustration caused by the annual review process and delaying her right of appeal.
56. 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.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. There is no evidence of fault in the way the Council responded to Ms X’s request for alternative provision for Y. There is evidence of fault in the way the Council dealt with the annual review as it did not meet the statutory timescales. I have recommended a suitable remedy for the injustice caused in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman