Summary: Mrs X complained the Council delayed arranging alternative educational provision for her child, Y when he was unable to attend school. She also complained the Council failed to provide the specialist provision outlined in Y’s Education Health and Care (EHC) Plan. The Council decided without fault that the school named in the Plan could meet Y’s needs. The specialist provision was available to Y at the named school. However, the Council was at fault for a three month delay in arranging alternative education provision and failing to review Y’s EHC Plan within statutory timescales. The Council has agreed to apologise and make a payment for Y’s missed provision and to recognise the distress, frustration and uncertainty caused.

The complaint

1. Mrs X complained of the Council’s handling of her son, Y’s, education after he stopped attending school. This included the Council’s failure to:
• hold an emergency annual review when requested
• provide Y with the specialist provision outlined in his EHC Plan
• provide Y with suitable alternative educational after he stopped attending school
2. This caused Mrs X’s distress frustration and uncertainty as Y missed out on educational provision. It also delayed Mrs X’s appeal rights.

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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. 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. 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). 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.
7. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
8. Y had a placement at special school A. Mrs X said his attendance was at 41% for the 23/24 school year and Y had not attended school at all since April 2024. In June 2024, the Council issued a letter informing Mrs X it did not propose to make any changes to the EHC Plan. I cannot investigate anything past this point. Doing so would involve looking at the Council’s decision to name the same school and therefore trespassing on the Tribunal’s jurisdiction. If Mrs X was unhappy with the Council maintaining Y’s placement it was reasonable for her to appeal this to the tribunal.

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How I considered this complaint

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 before making a final decision.

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What I found

Relevant law and guidance

EHC Plan

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 EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement. 
13. 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).

Annual review

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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Alternative provision

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. [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.
17. 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)
18. 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
19. 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 (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

20. 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

21. Mrs X has a son (Y) of secondary school age. Y has special educational needs and an EHC Plan in place which names his educational placement as a special school (school A). School A provided the following:
• Low arousal environment.
• Visual timetable displayed in tutor room.
• Small group or 1:1 interaction with staff.
• All lessons in small groups with one to two members of staff present.
• Whole school and group-based Speech and Language Therapy (SALT) support.
• Mindfulness and review in tutor group.
22. Y was also entitled to the following in his EHC Plan:
• Weekly Specialist OT sessions at least 30 minutes per term.
• 1:1 intervention once a week to help with communication skills.
• 1:1 intervention once a week to help develop emotional literacy.
• Sensory breaks.
• Structured intervention to develop strategies to overcome exam anxiety.
23. Y went into Year 10 in September 2023. In the autumn term of 2023, Y started to disengage with school. In October 2023 Mrs X requested the school carry out an emergency annual review and the following month she raised her concerns with the Council about Y’s non-attendance.
24. In November 2023, the Council contacted the school about Mrs X’s concerns. The school said Y had experienced difficulties engaging this school year but after extensive work with him, Y had started to re-engage in lessons. In November 2023, the school reported Y was doing well and attending school regularly. The school confirmed it was still able to meet Y’s needs.
25. There was an incident with Y’s peers which made him disengage with school again so in January 2024 the school made a request to the Council for some alternative provision.
26. An emergency annual review was held the following month. The Council organised this to discuss attendance issues and to work on engagement strategies between home and school and Y’s perception of issues with peers. In the meeting, Mrs X said that Y’s mental health had deteriorated, and he did not want to be in school. However, Y did not want to move schools. Mrs X said she would like to explore additional provision or blended learning.
27. The school maintained it could meet Y’s needs. However, it was agreed the school would make a funding request and referral for three hours a week of alternative provision. At this point, Y’s attendance was 53%.
28. In April 2024, Y stopped attending school entirely. There are no records to suggest the Council further considered its section 19 duty at this point.
29. Following the emergency annual review meeting, the Council decided to maintain Y’s EHC Plan. However, it did not notify Mrs X of this until June 2024.
30. In July 2024, Mrs X made a complaint to the Council about the following:
• Despite requesting the emergency annual review in October 2023, the Council did not arrange this until February 2024.
• Y was not receiving the specialist provision in his EHC Plan.
• The Council had delayed implementing alternative educational provision until June 2024.
• Mrs X felt the Council had left her to home educate Y despite not wanting to do this.
31. The Council issued a stage two response saying it was not aware until July 2024 that Y would not be returning to school. The Council also confirmed that Y’s alternative educational provision had been historically slim. However, the Council said Mrs X has advised that she has been providing home education so the Council considered it has acted proportionately in making alternative arrangements for Y.
32. Mrs X remained dissatisfied with the matter and complained to us.

Council’s response to our enquiries

33. In response to the delays in carrying out the emergency annual review, the Council said it completed the previous review in June 2023 so the next review was not due until June 2024. The Council said whilst it can arrange an emergency annual review if there are concerns regarding placement and provision, the school had noted Y was making some steps of progress. Therefore, it needed more time to review the impact of support and intervention before arranging an emergency review.
34. The Council also said there was ongoing discussion about alternative provision but it was challenging to find something Y would engage in. The Council said Y had access to an independent specialist setting during this time (school A) which offered 1:1 intervention but Mrs X turned this down. As well, the Council said the provision outlined in Y’s EHC Plan continued to be offered and available.

My findings

Emergency review

35. Mrs X complained she requested an emergency review in October 2023 but the Council did not carry this out until February 2024. The Council explained it did not carry this out at the time as the school reported Y’s attendance and engagement with school was improving. The Council decided to carry this out in February 2024 after the school reported Y had disengaged again and made a request for some alternative provision. The Council is only required to review the EHC Plan once within 12 months of the previous review. This was not due until June 2024. Whilst Mrs X is entitled to request an early or emergency review, the Council does not have to accept the request and it has explained its reasons for this. Therefore, the Council was not at fault.
36. However, after the Council held the emergency review in February 2024, it took too long to issue its decision to maintain the Plan. It should have done this within four weeks of the review meeting so the deadline was late March 2024. It did not notify Mrs X of its decision to maintain the Plan until early June 2024. This was a delay of 10 weeks and fault. This caused Mrs X distress, frustration, uncertainty and delayed her appeal rights.
37. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to produce an action plan to demonstrate how it will meet statutory timescales for the EHC Plan review process. Therefore, a further service improvement is not required.

Education and alternative provision

38. After Y disengaged again from school, it notified the Council of this in January 2024. After receiving this information, we would expect an emergency review to be held which it was the following month. Following this, the Council ultimately decided the school could meet Y’s needs and decided to maintain the placement at school A. The provision Y was entitled to in his EHC Plan was available to him at the school setting and therefore, the Council was not at fault.
39. At the annual review, the Council agreed for the school to put alternative provision in place to help re-engage Y with education. This was for three hours a week. However, this was not put in place until June 2024. There is no legal deadline to arrange alternative provision but we would expect it to be put in place promptly following the emergency review. Whilst the Council delegated this function to the school, the Council is ultimately responsible for ensuring the alternative educational provision is carried out. The Council delayed ensuring this was in place which was fault. As a result Y missed out on alternative educational provision for three months and their needs went unmet for longer than necessary. This caused Mrs X distress, frustration and uncertainty.
40. When Y stopped attending school entirely in April 2024, the Council should have further considered its section 19 duties but there are no records to show it did this. The Council said it was not aware Y was not returning to school until July 2024. As the Council knew in October 2023 and January 2024 of Y’s attendance issues and the school’s referral for alternative provision, we would expect the Council to regularly review this. Not doing so was fault. This was a missed opportunity to ensure the provision was in place prior to June and to consider the suitability of three hours a week. This caused Mrs X distress, frustration and uncertainty. However, I cannot say that on a balance of probabilities Y could have engaged in any more provision given the noted difficulties at his annual review.
41. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to review its alternative provision process and provide the Ombudsman with evidence that it complies with Section 19 of the Education Act 1996. It also agreed to ensure it has a robust process in place to regularly review the situation when it is aware of children out of school and record the actions arising from this review. Therefore, a further service improvement is not required.

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Action

42. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by its delay in arranging alternative educational provision for Y and issuing the decision notice following the emergency review. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mrs X £300 to recognise the distress, frustration and uncertainty caused by its delay in arranging alternative educational provision for Y and the delay in issuing the decision notice following the review.
3. Pay Mrs X £600 to recognise Y’s loss of alternative educational provision between February 2024-June 2024.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman