Summary: The Council was at fault. It did not complete Miss X’s child, Y’s annual review in 2023 and delayed completing Y’s next annual review. It failed to make a decision on amendments to Y’s Education, Health and Care (EHC) Plan and subsequently delayed issuing it. The Council also failed to monitor Y’s alternative provision package. These faults caused Miss X frustration, distress and uncertainty and impacted on Y’s education. The Council will apologise to Miss X and make a symbolic payment to her. The Council has already put in place actions to improve its service.

The complaint

1. Miss X complained the Council:
1. failed to provide her child, Y, with a suitable education since 2019;
2. did not provide Y with enough tuition, suitable tuition or a suitable tutor;
3. did not provide Y’s Education, Health and Care (EHC) Plan Section F provision;
4. stopped her from attending meetings about Y’s EHC Plan; and
5. communicated poorly.
2. Miss X said it meant she had lost work, it affected Y’s behaviour and it has affected the whole family. She said Y was not provided all the educational provision to which they were entitled and Y is still out of education.

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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. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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.
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. As explained in paragraph four above we cannot investigate late complaints unless we decide there are good reasons. Miss X initially complained to the Ombudsman in early May 2024 and again in January 2025 after the Council issued it stage two response about events starting in 2019. Part of the complaint is late and there are no good reasons to exercise discretion to investigate events going back to 2019.
11. I have chosen to investigate the period from March 2023 when Y’s annual review was held which was relevant to the subsequent events that were not late, to July 2024, when the Council issued its stage two response. I will not consider any new concerns after July 2024, when the Council issued its stage two response, however I will consider the ongoing injustice from the faults in the investigation period.

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How I considered this complaint

12. I considered evidence provided by the Council and Miss X and spoke to her on the telephone as well as relevant law, policy and guidance and our guidance on remedies published on our website.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

What I found

Relevant law and guidance

14. 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. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

Maintaining the EHC Plan

15. 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). 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).
16. 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 its legal duty. At a minimum we expect it 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.

Section 19 duty

17. 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 provision.
18. 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’).
19. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022. We made recommendations which included that councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Reviewing EHC Plans

20. 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.
21. Councils can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted within the statutory timescales.
22. 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).
23. 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. The Council should issue an amended plan within eight weeks of its notice to the parties that it proposes to amend the plan.

What happened

24. Y has special educational needs including attention deficit hyperactivity disorder (ADHD) and complex social, emotional, communication and mental health needs.

Background

25. Y’s first Education, Health and Care (EHC) Plan was issued just over five years ago and Section I named a mainstream secondary school, School 1. The key parts of Section F in this Plan included:
• daily one to one provision with a known adult for targeted learning to support the transfer of learning into a group;
• high level of support from trusted known adults in all lessons and during unstructured times;
• one to one support with key adult to promote calm and reflection on events when needed; and
• targeted interventions to support understanding of how to respond to different situations.
26. In September 2020 Y was excluded from School 1 and they were permanently excluded later in the same year.
27. In early 2021 Y started at a special school, School 2. Y was suspended in March 2022 and in Autumn 2022 School 2 took the decision to educate Y offsite with one-to-one tuition due to Y’s behaviour. In late January 2023, Y’s mother, Miss X, stopped Y attending their tuition sessions because of uncertainty about the location and provision offered. Between late January 2023 and mid-March 2023 School 2 arranged Y’s emergency annual review meeting date.

March 2023 onwards annual reviews and educational provision

28. In mid-March 2023 School 2 held remotely Y’s emergency annual review meeting. The review record noted:
• Y’s current EHC Plan was issued in summer 2020;
• Educational Psychologist (EP) advice recommended Y had small class sizes, completed work around self-identity, self-esteem and confidence, had a clear consistent adult with understanding of ADHD, had the opportunity to develop positive peer relationships and Y needed to feel psychologically safe in a predictable environment with a quiet working space;
• educational advice noted that a new venue had been arranged for Y’s one to one tuition closer to their home in a more suitable room based on EP advice. Miss X refused to send Y to this provision because she wanted Y to be in full time education with suitable provision, however the one-to-one tuition was still available to Y;
• there had been a breakdown in the relationship between Miss X, Y and School 2;
• Y required access to active or vocational provision which School 2 could not offer; and
• it was recommended Y’s EHC Plan was amended to include the EP recommendations in Section F of their Plan and the Council should explore alternative placements which were more appropriate to meet Y’s needs.
29. Following several incidents with Y’s behaviour, for a period of time between Spring and Summer 2023 Y lived away from the family home with another family member within a different council area. Y’s EHC Plan was not transferred to the new council area.
30. In mid-July 2023 when Y was living back at the family home the Council and School 2 emailed about Y’s school placement and the Council contacted over 10 schools for Y. A Council Panel discussed the possible placements but no placement was agreed for Y.
31. In mid-July 2023 Miss X complained to the School 2 Chair of Governors about Y’s lost education and their unsuitable educational provision. In August 2023 Miss X attended a meeting at School 2 with the Chair of Governors. The outcome from this meeting was Y would receive alternative provision at a local community centre and welfare checks would be carried out. The same day the Council telephoned School 2 and it was agreed Y would remain on roll at School 2 while the Council found a suitable educational placement for Y and amend their EHC Plan. School 2 confirmed it could not meet Y’s needs. A telephone record showed Miss X agreed to Y receiving the offsite one-to-one tuition offer.
32. Y attended the one-to-one tuition in a community centre for one month, three days a week for two hours each morning, whilst a suitable alternative placement was agreed by the Council. Miss X said School 2 attempted to contact the Council’s inclusion service over 18 times in September 2023 with no response. Miss X said Y played cards and completed word searches and did not receive their Section F provision.
33. Miss X said it was only agreed Y would attend the community centre for four weeks and then Y would be reintegrated back to School 2 but it did not happen. Miss X was unhappy Y was not offered an alternative placement and Y stopped attending their one-to-one tuition in early October 2023. The Council said welfare checks at the family home stopped due to Miss X’s challenging behaviour and Miss X asked for no more home visits but School 2 continued to make weekly telephone calls to Miss X. The Council provided evidence from School 2 that although Y did not attend their tuition it was still available to Y.
34. In late-March 2024 School 2 held Y’s annual review. The annual review record noted Y’s EHC Plan had not been updated by the Council. School 2 noted the Council had not responded to updates and one to one tutoring was no longer suitable for Y because of the amount of education missed. Comments submitted by Miss X noted the lack of education affected Y’s mental health and Y wanted to attend a school. The review recommended the Council explored an alternative placement for Y which would meet their needs, the Council needed to respond to requests for information and updates and amend Y’s Section F provision in their EHC Plan in line with EP advice from 2023.
35. Three days later a local MP complained to the Council on behalf of Miss X and said Y had not accessed education for two years and their behaviour had declined and Miss X wanted Y to have an education.
36. In late April 2024 the Council responded to Miss X’s complaint and said School 2 put in place tuition for Y at a community centre whilst the Council was looking for a more appropriate alternative education. It said it had consulted widely for a place for Y and received negative responses and it was re-consulting to identify a suitable school placement.
37. In mid-May 2024 Miss X complained to us but it was premature because the Council had not completed its complaints procedure. Miss X escalated her complaint to stage two of the Council’s complaints procedure.
38. In early July 2024 the Council issued its stage two response and said:
• it apologised for the delayed stage two response;
• it gave a chronology of events referring to Y’s educational provision noting that in March 2023 Miss X advised at the annual review she would no longer agree to Y attending tuition and following receipt of the annual review report the Council amended Y’s EHC Plan and consulted with a number of specialist settings seeking a placement for Y;
• when Y moved to live with another family member they were living in a different council area and it was not responsible for Y’s education in those months;
• tuition closer to Y’s home was in place in September 2023 and Y stopped attending in October 2023. It said School 2 staff carried out welfare checks on Y but Miss X made threats to staff and the school stopped the checks;
• it continued to seek a suitable specialist school setting for Y and they continued to have individual tuition available to them and was still on roll at School 2; and
• it could not agree to compensate Y as educational provision had been made and continued being available to them. It said Y did not engage with the individual tuition arranged for them.
39. In late September 2024 the Council issued a decision letter to School 2. It said it would amend Y’s EHC Plan and would send a copy of the letter to Miss X. There is no evidence the decision letter was sent to Miss X and the Council did not update Miss X on the outcome.
40. In mid-November 2024, School 2 held Y’s emergency annual review.
41. Miss X remained unhappy and complained to us again in January 2025.

Enquiries

42. In response to my enquiries the Council said:
• Y’s EHC Plan had not yet been amended but it hoped it would send a draft Plan by early September 2025 and a final EHC Plan by October half term 2025;
• it regretted the delays in responding to Y’s annual reviews and issuing an amended EHC Plan. It said it was due to changes in staffing levels and Y’s case being moved between teams and different managers and significant capacity challenges at the Council. It said it has an action plan in place;
• its Section 19 duty was not considered because School 2 was offering Y alternative provision; and
• it monitored Y’s provision through annual reviews and emails from School 2. It said it delegated the provision of Y’s Plan to School 2 and the school was best placed to identify the most appropriate provider. It acknowledged the monitoring was not rigorous and had made service improvements including Section 19 and Section 42 duties training with staff including a training academy, additional recruitment of staff, a new formal panel for Section 19 and Section 42 cases where people out of school were now regularly reviewed.

Communication and meeting bans

43. In mid-March 2023 School 2 held Y’s emergency virtual annual review. Miss X said she wanted to attend the annual review in person but she was banned from the School 2 site because of her behaviour, which she disputed. Miss X did not attend the virtual review meeting. The Council said School 2 decided Y’s annual review would be online and School 2 spoke to Miss X’s special educational needs and disabilities information, advice and support services (SENDIASS) representative the day after the annual review to gather Miss X’s and Y’s views. The Council said the SENDIASS representative was not banned from the annual review meeting and it was their choice not to attend. Miss X’s SENDIASS representative continued to speak to Miss X and the Council about Y’s school placements.
44. There are Council records from July 2023 when Miss X was asking for a face-to-face meeting with the Council about Y’s education. The Council offered a virtual meeting which Miss X was unhappy with. A Council manager telephoned Miss X and the Council recorded challenging behaviour by Miss X. At this time the Council considered a communication plan with Miss X but did not put one in place. Miss X said in a letter to the School 2 Chair of Governors she had been unfairly prevented from attending Y’s SEN meetings after repeated requests to School 2 and the Council’s SEND team and it was untrue she was threatening or aggressive.
45. In response to my enquiries the Council said it acknowledged communication with Miss X was not always timely but had strived to work in partnership with Miss X even when communication was difficult.

My findings

46. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.

Delay in issuing Y’s EHC Plan

47. The Council held Y’s emergency annual review in March 2023 but did not issue a decision notice on whether it would maintain, amend or discontinue Y’s EHC Plan or update Miss X. Although there was new professional advice available and the review meeting notes suggested Y’s EHC Plan needed amending, the Council failed to decide on its position. As a result Miss X could not challenge the Council’s position and Y’s EHC Plan remained out of date. The Council looked for a different placement for Y and consulted several schools but it was sending Y’s EHC Plan from 2020, which was out of date. The Council’s fault caused Miss X frustration, distress and uncertainty.
48. Y’s next annual review was held in late March 2024. The Council sent a decision letter to amend Y’s EHC Plan in late September 2024, this should have been sent by late-April 2024 and was a delay of approximately five months and was fault. Had the Council acted without fault it should have issued Y’s final amended EHC Plan in early June 2023. This fault caused Miss X frustration, distress and an ongoing uncertainty.

Section 19 and Section 42

49. The Council was aware in January 2023 Y was not attending the one-to-one provision arranged by School 2 and took a Section 19 decision to put in place tuition for Y in a new location closer to their home. Miss X stopped Y from attending the provision because of the location of the tutoring and the provision offered she wanted Y in full-time education. The Council said the one-to-one provision was still available for Y to access. The Council remained responsible for Y’s education between Spring and Summer 2023 when Y lived in a different council area, as Y’s EHC Plan had not been transferred. Y did receive some tuition for a month between September 2023 until early October 2023 for three mornings a week for two hours per day. There is no evidence what education Y received at this time. Y received no education after October 2023. This was just before an important school year for Y and they did not sit their GCSE exams.
50. I found the Council acted correctly when it made its decision on its Section 19 duty after Y stopped attending School 2 and when it offered Y individual tutoring.
51. After arranging alternative provision for Y the Council failed, however, to ensure it was suitable and Y was making progress. The Council failed to consider the advice obtained during reviews of Y’s EHC Plan about their special educational provision and their need for a school placement.
52. The Council’s failings listed above are fault. The Council’s fault caused injustice to Miss X and Y. We cannot say, even on the balance of probabilities, if the Council’s fault resulted in Y’s lack of education. Given Y’s educational history there is uncertainty whether Y would have engaged with different provision, if the Council had offered it, although views collected from Miss X which were considered at Y’s annual review noted Y wanted to attend a school. The Council’s fault caused, however, uncertainty and distress to Miss X and impacted Y.

Meeting bans and Communication

53. Miss X was banned from the School 2 site and so a face-to-face annual review did not take place in March 2023. Miss X also said other meeting requests to School 2 were dismissed. These were not decisions taken by the Council and, as explained in paragraph five above, are not matters I could consider. The Council was not at fault as it provided evidence that:
• SENDIASS was involved on Miss X’s behalf in Y’s 2023 annual review;
• SENDIASS could attend on Miss X’s behalf to any reviews of Y’s EHC Plan; and
• Miss X’s views were considered.
54. Miss X was unhappy the Council would not meet with her face to face. The Council did offer a virtual meeting in Summer 2023 and evidence shows Miss X’s behaviour was at times challenging including on a telephone call with a Council manager. The Council acknowledged its communication with Miss X was not always timely. Communication between the Council and Miss X could have been improved if it had put in place a communication plan which was suggested by the Council in Summer 2023. The Council was at fault and caused Miss X frustration. The Council has agreed to consider how Miss X and the Council can improve communication moving forward.

Service Improvements

55. The Ombudsman has already made service improvement recommendations to this Council on similar cases. As a result of earlier complaints to us, the Council has agreed to provide us with an action plan as explained in paragraph 42 above. On this basis no further service improvement recommendations were needed.

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Action

56. Within one month of the final decision the Council will apologise to Miss X and pay Miss X a total of £1000 for the frustration, distress and uncertainty caused to her and the impact on Y’s education by the faults identified with:
1. not completing Y’s March 2023 annual review;
2. the delays in completing Y’s April 2024 annual review;
3. the failure to make a decision on amendments to Y’s EHC Plan following its review in March 2023 and March 2024; and
4. the Council’s failure to monitor Y’s alternative provision package.

When remedying the injustice, I referred to the Ombudsman’s guidance on remedies. Due to the length of time and number of failings which caused Miss X significant frustration, distress and uncertainty and the impact on Y’s education, I recommended a symbolic payment more than we would normally suggest.

57. Within one month of my final decision the Council will consider how it can better communicate with Miss X about Y’s education. This might take the form of a communication plan as it had previously suggested.
58. The Council will provide us with evidence it has complied with the above actions.

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Decision

59. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice. The Council has already put in place actions to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman