Summary: Mrs X complained on behalf of Ms Y. Ms Y complained the Council delayed her son, Z’s, Education, Health and Care (EHC) Plan annual review process. She also complained Z has not received suitable education or plan provision and communication from the Council was poor. Ms Y said Z missed education and plan provision and this caused her distress, frustration and she has been impacted financially. There was fault in the way the Council did not ensure Z received education and provision, delayed issuing the final EHC Plan and communication from the Council was poor. Z missed education and plan provision. The fault distressed Ms Y and frustrated her right of appeal to the Tribunal. The Council has agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained on behalf of Ms Y. Ms Y complained the Council delayed her son, Z’s, Education, Health and Care (EHC) Plan annual review process. She also complained Z has not received suitable education or plan provision and communication from the Council was poor. Ms Y said Z missed education and plan provision and this caused her distress, frustration and she has been impacted financially.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. 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.
5. 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)

Back to top

What I have and have not investigated

6. I have investigated Mrs X’s complaint since September 2023.
7. I have not investigated earlier events as Mrs X could have complained about them earlier. This is a late complaint. There is not enough reason to accept those parts of it for investigation now.

Back to top

How I considered this complaint

8. I read Mrs X’s complaint and spoke to her about it on the phone.
9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

11. 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. 
12. 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)  
13. 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. 

14. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. There is a right of appeal to the Tribunal against a council’s:

• 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 in their EHC Plan; and
• amendment to these elements of an EHC Plan.

17. 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)
18. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
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. [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.
21. 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)
22. 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)
23. 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
24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. Z has additional needs. He not attended school since September 2022.
27. Z’s social worker contacted the education department. The social worker confirmed Ms Y was using social care funding to pay for education support for Z. The social worker asked education to support Z. The school confirmed it agreed Y would receive tuition.
28. In December 2023, Mrs X asked the Council what the education plan was. The Council response said the school had not said it could not meet Z’s needs. The school held the annual review the following week. The school ticked a box saying the placement in section I of the EHC Plan was not appropriate. After the meeting, the school said it tried to put tuition in place for Z. It said it was not successful and ended the offer. Ms Y asked the Council for Education Other than at School (EOTAS).
29. The social worker stated Ms Y was using social care compensation money to fund education support. The social worker said this was running out and set out the concern Ms Y would reach crisis point without support. The school reported it had no alternatives to support Z.
30. The Council rejected Ms Y’s EOTAS request in April 2024. The Council said school could meet Z’s needs, if he attended. The Council also acknowledged a medical report which stated Z “could not attend school and so the professionals around Z need to work together with school to ensure suitable provision is in place”.
31. The Council issued Z’s EHC Plan in June 2024. The plan named the school Z was not attending.
32. Ms Y complained to the Council. She complained about communication and delays in the review process, impacting education and plan provision for Z.
33. The Council responded at the end of June 2024. The response said EOTAS was not suitable as Z had a school placement and the issue was attendance. The Council accepted it did not issue the final EHC Plan within the statutory timescales. It also accepted communication was poor. The response confirmed it was “mindful Z has not been in receipt of an education” from the school.
34. Ms Y asked the Council to escalate her complaint to stage two because Z still had no education. The Council issued its response in July 2024. The Council said it upheld Ms Y's complaint, causing stress and financial hardship and further investigation would not achieve a different outcome.
35. Ms Y was not satisfied with the Council’s response. Mrs X asked the Ombudsman to investigate. Ms Y would like the Council to accept its fault and make a financial payment.
36. In response to my enquiries the Council stated it offered education with the offer of a placement at the school. The Council accepted the delays in the EHC Plan process and communication was not acceptable but had improved.

My findings

Delays in the annual review process

37. After the annual review meeting, the Council must issue its decision to amend within four weeks. It then must issue the final EHC Plan within a further eight weeks. It is clear from the documentation, and the Council accepted, it has not met these statutory timescales.
38. The Council’s failure to issue the plan within statutory timescales also meant Ms Y’s appeal right were not engaged within an appropriate time so she could not challenge the content of the plan. This caused distress and frustration.
39. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council did not issue the plan for six months, a three-month delay. The Council’s failure to meet the required timeframes here amounts to fault. 

Missed education and plan provision

40. Councils have a duty to provide alternative education under section 19 if no suitable education is 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”. The Council was aware Z was not attending school full time from September 2023. The Council also has a duty to ensure Z received the provision in the EHC Plan.
41. The Council response to the Ombudsman says Z was on roll at the school and the issue was attendance. The school, in the annual review document from December 2023, ticked a box saying the placement in section I of the EHC Plan was not appropriate. The Council then continued its position Z had a school placement available. There is no evidence the Council considered its responsibility to ensure Z received an education and plan provision since September 2023. There is no evidence the Council considered the ‘acid test’ if any education was accessible for Z. The Council must consider if it needed to provide Z with education or plan provision. It did not. This is fault.
42. In its complaint response, the Council admitted it was “mindful Z has not been in receipt of an education” from the school. Paragraphs 12 and 21 set out the Council must provide education and ensure a child received EHC Plan provision if they are out of school. The Council has not provided any evidence of any education or plan provision. The Council’s failure to ensure Y received education and provision since September 2023 is fault. Y missed education and plan provision since September 2023.
43. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
44. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
45. The Council issued the final EHC Plan in June 2024, giving an appeal right. Once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education or plan provision until the Council issued the Final EHC Plan in June 2024. I therefore cannot recommend any remedy for missed education or provision beyond this date. Y missed education and provision between September 2023 and June 2024, three academic terms.
46. I would usually make service improvement recommendations in a case such as this, but I can see other Ombudsman investigations made these. The Ombudsman is actively monitoring the Council’s learning from these recommendations.

Communication

47. The Council accepted in its complaint response and response to the Ombudsman communication was not good enough. This is fault frustrating Ms Y.

Back to top

Agreed action

48. To remedy the outstanding injustice caused to Ms Y and Z by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Ms Y and Z for the injustice caused by delays in the review process, not ensuring Z received education and plan provision and poor communication. 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.
• Pay Ms Y £300 to recognise the distress, frustration and uncertainty caused by the delays in issuing Z’s EHC Plan and poor communication.
• Pay Ms Y £4,500 for the missed education and plan provision for three academic terms. This money should be used for Z’s benefit.
49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms Y and Z.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman