Summary: The Council took too long to issue an Education, Health and Care Plan for Mrs X’s daughter following an annual review in February 2024. She also complained her daughter was not provided with a suitable education during the period she was unable to attend school from November 2023. We found no fault. We found there were faults with the Council’s handling of the school phase transfer review, record keeping and failure to consult with Mrs X’s preferred school. The Council agreed to apologise, make a payment to Mrs X and S and review progress on improving its practice.

The complaint

1. Mrs X complains about the Council’s handling of her daughter, S’s, education and special educational needs since September 2023. She says the Council failed to:
• issue the final amended Education, Health and Care (EHC) Plan promptly following an annual review in February 2024;
• provide alternative provision for S when she stopped attending school in November 2023;
• consult with their preferred secondary school in late 2023;
• complete a phase transfer annual review of S’s EHC Plan by 15 February 2024; and
• share a draft EHC Plan with her as part of the phase transfer annual review.
2. Mrs X says the Council’s failures caused S and her avoidable distress and meant she had to spend money on private tests because the Council did not have another way for her to prove S could not attend school.
3. Mrs X would like the Council to apologise for its failures, ensure that it issues S’s EHC Plans promptly after reviews and reimburses her the money she spent on private tests to prove S was not able to attend school.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. 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)
8. 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)
9. 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.
10. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
11. 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.
12. 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)

Back to top

What I have and have not investigated

13. I have not investigated Mrs X’s complaint about lack of alternative provision after February 2024 because she appealed section I of S’s EHC Plan and asked for her to receive education other than at school. The SEND Tribunal will decide if S was able to attend school the Council considered suitable for her.

Back to top

How I considered this complaint

14. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
15. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Annual reviews of EHC Plan

16. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
17. Councils must review an EHC plan at least every 12 months.
18. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
19. Within four weeks of the review meeting, the Council must decide whether it proposes to amend the plan and notify the young person of this decision. If it decides to amend the EHC Plan, it must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a high court decision from March 2022 says the Council must issue any draft amended plan within four weeks of the annual review meeting. The Council must issue the final amended plan within 12 weeks of the annual review meeting.(L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
20. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
21. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
22. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (SEN Code paragraph 9.179). The transfers from primary school to secondary school is one of the key transfers.

Alternative provision of education for children

23. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. This is sometimes called a “section 19 duty”. (Education Act 1996, section 19(1))
24. 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))
25. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
26. The education provided by a council must be full-time unless a 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)
27. 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 mind? How councils can do more to give children out of school a good education, published in 2022)
28. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
29. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
30. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
31. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

32. Mrs X told us that S struggled with attendance ever since she turned five. Mrs X said that initially they would have to carry S into the school, but later on with the encouragement of S’s school they decided to try other methods to encourage her to go into school. Mrs X briefly transferred S to a different school for Year 5, but she still struggled with attendance. Because of this, Mrs X decided to move S back to her first school for the final year so that she could attend with her peers that she was familiar with.
33. In April 2023 Mrs X asked the Council for an EHC Plan assessment. The Council issued S’s first EHC Plan in September 2023. The Plan acknowledged that S struggled with attendance since Year 1, and that she experienced high levels of school-based anxiety.
34. In September 2023 Mrs X hired a private coach to work with the family and help them get S into school in the mornings.
35. In late November Mrs X told the Council that she was struggling to get S to attend school, and she asked the Council for a phase transfer annual review of S’s EHC Plan. In response to our enquiries the Council accepted that it has not kept accurate records of what action it took immediately following Mrs X telling it that S stopped attending. This was because the case officer Mrs X emailed had left the Council and it no longer had access to their email correspondence showing actions they took. Around this time the Council told Mrs X it would consult with her preferred secondary school to check if it could meet S’s needs and be named in S’s phase transfer EHC Plan.
36. A couple of days later, Mrs X emailed the Council and asked for a meeting to talk about support to get S to attend school.
37. The Council said that it spoke with S’s primary school and based on the information it received it decided to issue an attendance warning letter to Mrs X. It decided that at this point it did not owe a section 19 duty to S, and a reintegration plan was best suited to support her in returning to attend school.
38. In early January 2024 Mrs X complained to the Council and said:
• S had missed more than 15 days of education, and this should have triggered alternative provision for her, but the Council did not provide anything;
• S’s EHC Plan was lacking, and Mrs X was unsure who would fund provision for S as the school said it did not have the budget to do that;
• she disputed that she failed at her parental responsibility to get S to school, when the Council was not supporting S with access to education; and
• asked the Council what the long-term plan for S was, as she was still not in school and not supported by either the Council or her school.
39. Around this time the Council’s Education Welfare Officer spoke to Mrs X and decided the support plan the school put in place was not robust enough and decided it would meet with Mrs X and the school to agree a reintegration plan for S.
40. The Council responded to Mrs X’s complaint in early February 2024. It said that:
• S had access to education at her school, and alternative provision was not necessary;
• following the most recent Occupational Therapy (OT) report the Council believed a reintegration meeting would be beneficial to plan the next steps,
• the school could use the allocated funding for any alternative provision for S, but the school says it can meet her needs without this additional provision and the focus should remain on improving S’s attendance;
• the most recent OT report supported that S’s school is suitable to meet her needs, and it was Mrs X’s responsibility to get her to school; and
• the Council and the school would work with Mrs X on a reintegration plan for S.
41. In early February 2024 the Council met with Mrs X to discuss S’s needs, and they agreed a part-time timetable and reintegration plan for S. The following week Mrs X asked the Council to consider her complaint further as S was still out of school and not supported by the school or the Council. Around this time the Council also issued a final EHC Plan for S’s transition into secondary school without holding a review meeting or sharing a draft with Mrs X. The EHC plan named a mainstream secondary school for S to attend.
42. In late February 2024 S’s school held an annual review meeting of S’s EHC Plan. The Council should have issued a notice of what it decided to do with S’s EHC Plan following the review by late March 2024, but this did not happen. Around the same time, S began accessing one hour of tutoring per day. The Council said the tutoring was implemented following Mrs X’s complaint to support S’s reintegration plan and to allow the Council to carry out an assessment of the reintegration plan that was agreed two weeks prior.
43. In early March the Council responded to Mrs X’s complaint and concluded that it did not need to provide alternative provision for S because it considered she could attend school and had access to a full-time education. In the same month, Mrs X appealed S’s February 2024 EHC Plan to the SEND Tribunal as she felt S could not attend any school and she wanted Education Otherwise Than at School (EOTAS).
44. The Council issued its final response to Mrs X’s complaint in mid-April 2024. It said that it considered S was not too anxious to attend school, had access to a full-time education to meet her needs and therefore did not have to provide alternative provision.
45. In April Mrs X commissioned a private psychiatry assessment of S. This noted that continued insistence on school attendance would be clinically counterproductive.
46. In early June 2024 the Council sent Mrs X its amendment notice following S’s annual review from February 2024. The Council sent the final amended EHC Plan to Mrs X in November 2024.

Analysis

Alternative provision

47. After Mrs X made the Council aware S was not attending school, the Council gathered relevant information and took appropriate action. The Council:
• considered Mrs X’s view that S had a documented attendance problems since the beginning of primary school, and despite her best efforts she could not get S to attend;
• spoke to the school soon after Mrs X told the Council S was not attending school. It was aware S had attended school between September and November, and there was no medical evidence saying S was unfit to attend school. The school also confirmed it felt it could meet S’s needs. Following that it told Mrs X that the school was still suitable for S and could meet her needs; and
• issued Mrs X with a warning letter for failing to ensure S attended school. I am satisfied this demonstrated it believed it had no duty to provide education under section 19. Mrs X would have been aware of the implications of the warning letter because as part of another complaint she made, the Council had already explained to her that its view was that S was able to attend school and therefore it did not owe her section 19 duty. In the same letter the Council explained to Mrs X the difference between its section 19 duty and her section 7 duty.
48. Because the Council considered relevant evidence from Mrs X and the school it followed the correct process and there was no fault. Therefore, I cannot question its decision not to provide alternative education up to February 2024 no matter how much Mrs X disagrees with it. In early February the Council, S’s school and Mrs X agreed a reintegration plan to support S in increasing her school attendance. Within two weeks Mrs X complained and said that S was not receiving the provisions from the EHC Plan, because she was not attending school.
49. The Council decided to agree to one hour tutoring to investigate if the reintegration plan was working and provide additional support for S.
50. Mrs X told us that she felt the Council’s decision meant that she had to obtain a private assessment to support her view that S could not attend school. There is no national process in place to direct councils or parents on what evidence would be sufficient to evidence a child’s inability to attend school. It is clear the Council and Mrs X disagreed about whether S should be attending a school or should receive alternative provision away from school.
51. Furthermore, Mrs X requested the private assessment after her appeal rights arose. We consider that we cannot separate her view she needed a private assessment from the decision about the suitability of the school place which was considered by the SEND Tribunal. The law says we cannot comment on the decision made by the Tribunal.

Phase transfer EHC Plan annual review

52. S was due to transition into secondary school in September 2024, and this means the Council must review, amend as appropriate and issue final amended EHC Plan by 15 February 2024. Although it issued a final EHC Plan by that date, the Council did not share a draft EHC Plan with Mrs X as part of the phase transfer annual review, or ask for her views, as it is required to do. This is fault.
53. This caused her avoidable distress and frustration about what provision S would be able to access in September 2024.
54. The Council said that it did ask her which schools for S she would like it to consult in late 2023, but did not think a phase transfer review was necessary because it had recently issued S’s final EHC Plan in September 2023.
55. The regulations do not allow councils discretion on that point. The Council must review the EHC Plan, issue an amendment notice to parents with its decision. If the Council considered S’s Plan did not need any amendments it should have maintained her Plan from September 2023. This must be a decision issued following a review. However, it was likely to have made changes to the EHC Plan as she was attending a primary school and therefore section, I would need to reflect her move to a secondary setting.
56. The Council said this is its practice for EHC Plans that it issues to children in year six. This is not in line with the regulations, and the Council has to amend its approach to bring it back in line with the law.

Annual review

57. The Council did not send an amended final EHC Plan to Mrs X until late November 2024. Given the review meeting was in late February, it should have issued the amendment noticed by late March and finalised the Plan by late May. This is fault. This caused her further frustration and distress about what support schools would be able to put in place for S without an updated EHC Plan before September 2024.

School consultations

58. The Council did consult with two schools Mrs X mentioned to it in late October 2023. This is what we would expect the Council to do. The consultations did not result in a school place for S.
59. The Council confirmed that in November it told Mrs X it would consult with her preferred school, but then did not do this. This is fault. This fault caused Mrs X avoidable frustration and uncertainty. I have taken into account that by March 2024, Mrs X had appealed to the Tribunal to have EOTAS specified in S’s EHC Plan which means she felt S could not attend any school.

Back to top

Agreed action

60. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X for its failure to conduct a phase transfer review of S’s EHC Plan and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mr X £300 to remedy the distress and avoidable frustration she experienced.
61. Within three months of this decision, the Council should:
• Revise its practise of not holding phase transfer reviews for children whose EHC Plan’s the Council issued in year 6.
62. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

The Council was not at fault for its decision about alternative provision from November 2023. We found there was lack of phase transfer review, record keeping and failure to consult with Mrs X’s preferred school.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman