Summary: Miss X complained the Council failed to ensure her child D received suitable alternative education when out of school and delayed in reviewing their Education, Health, and Care Plan. There was no fault in how the Council considered its duty to provide alternative education. However, it did delay a review of D’s Education, Health, and Care Plan which caused Miss X distress. Miss X also complained the Council ended D’s Child in Need Plan when she felt the family still needed support. There is not enough evidence of fault to justify the Ombudsman investigating this issue further. However, the Council was at fault because it failed to consider Miss X’s complaint about this via the statutory complaints procedure for children’s social care services, which caused Miss X avoidable time and trouble. The Council agreed to apologise, pay a financial remedy, and issue reminders to its staff.

The complaint

1. Miss X complains the Council failed to ensure her child D received suitable education, special educational needs (SEN) provision, and social care support, in 2023 and 2024. She says the Council:
• failed to ensure D received suitable alternative education and SEN provision when they were out of school from November 2023;
• delayed in reviewing and amending D’s Education, Health, and Care (EHC) Plan when she asked it to after D stopped attending school;
• once it issued a final amended EHC Plan in April 2024, did not tell her she could appeal to the First-tier Tribunal (Special Educational Needs and Disability) when she disagreed with the Plan;
• removed the family’s social worker and ended D’s Child in Need Plan in mid-2024, despite Miss X saying the family still needed this support; and
• communicated poorly with her about these issues, did not always respond, and delayed its complaint response.
2. Because of this Miss X says:
• D missed education and SEN provision, causing them distress and isolation. D could not sit their GCSEs; and
• she experienced distress which impacted her mental health.
3. Miss X wants the Council to:
• find a new suitable school placement for D within their local area; and
• provide a financial remedy to recognise the distress caused to the family.

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The Ombudsman’s role and powers

4. 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)
5. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision as set out in Section F of a child’s Education, Health and Care Plan.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot normally investigate when someone had a right of appeal to a tribunal, even if they did not use it. 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)
9. We consider whether there was fault in the way an organisation made its decision. 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)
10. 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)

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council, and relevant law, policy and guidance.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. 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 found

Legislation and guidance

Education, Health, and Care (EHC) Plans

14. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.

Reviewing EHC Plans

15. 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) 
16. 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.

Alternative education while out of school

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. We refer to this as section 19 or alternative education provision.
18. The section 19 duty 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).
19. 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)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
21. The education provided by the council must be full-time unless the 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)
22. 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’)
23. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
24. 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 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

25. 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.

EHC Plan appeal rights

26. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
27. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the SEN provision specified, or the school or placement specified in the EHC Plan; and
• amendment to these elements of an EHC Plan.

28. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
29. 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)
30. 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.
31. 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.
32. 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.
33. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person, and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.

Children in need

34. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

35. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
36. A council may decide to provide lower-level support via its ‘Early Help’ service, where it considers a Child in Need Plan is not merited.

The statutory complaints procedure for children’s social care services

37. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
38. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough, and prompt response to their concerns. Because of this, we expect people to complete the statutory complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns.
39. The Ombudsman would normally expect a council and complainant to follow the full statutory complaints procedure. The statutory guidance says where a council has accepted a complaint at stage 1, the complainant is entitled to pursue it through stages 2 and 3 if they remain dissatisfied, except in specific circumstances. It also sets out certain circumstances in which the Ombudsman can accept an “early referral”. However, this is only after a council has properly considered the complaint at stage 2 and upheld all parts of it.

Background

40. In September 2023, D started year 10 at their special school placement, School Y. They had an EHC Plan in place.
41. In November 2023, School Y told the Council it had decided to set up a reduced timetable for D, who would now attend one hour a day when other children had gone home. It said this was because of D’s behaviour in school, particularly in relation to their contact with other children. Throughout the school year, the Council continued to receive updates from School Y about attempts to increase D’s timetable and return to normal schooling. Miss X continued to tell the school and the Council she felt D should attend school as normal. At the end of May 2024, School Y gave notice to the Council and Miss X it intended to end D’s placement at the end of the school year.
42. D’s EHC Plan was also reviewed twice during this time, as follows:
• January 2024 – School Y held an annual review meeting.
• April 2024 – the Council issued an amended EHC Plan. This still named School Y as D’s educational placement.
• June 2024 – a month after School Y gave notice to end the placement, Miss X asked for another annual review.
• August 2024 – the Council held an annual review meeting.
• December 2024 – after Miss X brought her complaint to the Ombudsman, the Council issued an amended EHC Plan. This did not specify any school placement for D. Miss X appealed about this Plan, including the lack of school placement, to the SEND Tribunal.
43. Miss X complained to the Council in June 2024 about D missing education and issues with the EHC Plan review process. The Council responded at Stage 1 of its complaints procedure in July 2024 and did not uphold Miss X’s complaint, so she escalated this to Stage 2. Miss X brought this complaint to the Ombudsman in October 2024, and the Council issued its final complaint response shortly afterwards. It said it was working to find a new school placement and amend D’s EHC Plan, and that Miss X had refused offers of suitable alternative education while D was out of school.

What I have and have not investigated

44. I can consider any continuing injustice caused by the Council’s faults before its final complaint response in October 2024. However, I cannot consider new issues which arose after this. The law says councils must have reasonable opportunity to respond to a complaint before we look at it.
45. The Council decided in December 2024 it would not name Miss X’s parental preference as D’s school placement, so issued a final EHC Plan without naming a school. Miss X disagrees with this decision. This is a new issue so I cannot consider it. Also, Miss X appealed about the December 2024 EHC Plan and D’s school placement to the SEND Tribunal, which is another reason I cannot consider it (as explained at paragraph 8). I cannot comment on whether the Council should have named Miss X’s preferred school; that is not the role of the Ombudsman and is for the Tribunal to decide. As explained at paragraphs 29 to 31, this also means I cannot investigate, or recommend a remedy for, education D missed after the December 2024 EHC Plan. The missed education is linked to the same issue Miss X appealed, that the Council did not name a school placement.
46. Miss X raised various issues with how the Council conducted the review process that led to the December 2024 Plan. She disagrees with how the Council consulted schools and tried to find a school placement. I cannot investigate the EHC review process that led to the final Plan. This is connected to the issue Mrs X appealed, that is, she disagrees with the placement and provision that ended up in the Plan. I can only look at delays in reviewing the EHC Plan and consider what difference the delays made to Miss X and D.

My findings

April 2024 EHC Plan appeal rights

47. Miss X said when the Council issued a final amended EHC Plan in April 2024, it did not tell her she could appeal to the SEND Tribunal when she disagreed with the Plan.
48. I found no fault with the Council for this part of Miss X’s complaint because:
• at the January 2024 review meeting, all present, including Miss X, agreed with the proposed changes to the EHC Plan;
• when the Council issued a proposed amended Plan in March 2024, it gave Miss X 15 days to comment on this Plan but she did not contact the Council before this deadline; and
• when the Council issued the final Plan in April 2024 this included full details of how Miss X could appeal to the SEND Tribunal.

Alternative education while out of school

49. The November 2023 decision to restrict D’s access to school was a decision for the school to make. As explained at paragraph 7, we cannot investigate the actions of the school in deciding this. Miss X made a separate complaint to the school about its decision.
50. I have only considered the actions of the Council. Once the Council became aware in November 2023 D was not receiving a full-time education, it should have considered its duty to arrange suitable alternative education under section 19 of The Education Act 1996.
51. The Council issued an amended EHC Plan for D in April 2024, which still named School Y as their school placement. Miss X says she disagreed with the SEN provision in this Plan, but did not appeal because she did not know she could. As already explained, I found the Council told Miss X of her appeal rights, and it was reasonable for her to appeal. However, in April 2024 Miss X did not disagree with School Y being named in the Plan. D was out of school because the school decided it should not allow them to attend as normal, whereas Miss X thought School Y should allow D to attend full-time during school hours. Therefore, the reason for D's non-attendance is not linked to a disagreement which Miss X should have appealed to the Tribunal about. This means I can consider education D missed from November 2023, up to December 2024 when the Council issued a Plan which did not name School Y.
52. I found:
• When the school first reduced D’s timetable in November 2023, it made the Council aware it had offered to provide alternative education to D in their home, or at another off-site location. Miss X refused this because she said it was not suitable for D’s special educational needs as they needed to be on a school site to learn and engage.
• Also in November 2023, the Council asked School Y to provide regular updates about D’s part-time timetable and engagement. The updates showed the school gradually increased D’s timetable after November 2023 so by April 2024 they were mostly attending five half-days a week, with one-to-one support, within school hours.
• Towards the end of May 2024, the school decided it needed to return to the arrangement of one hour a day when other children had gone home, due to D’s behaviour. It kept the Council informed about this.
• Shortly afterwards, School Y gave notice to the Council and Miss X it intended to end D’s placement at the end of the school year. It continued to offer one hour a day until the end of the year but told the Council D did not engage with this.
• In September 2024 at the start of the next school year, the Council offered to provide tutoring for D either at home or in the community, but Miss X refused this.
• When responding to Miss X’s complaint in October 2024, the Council said it had recently identified a new school placement it considered suitable, and offered alternative education to reintegrate D into school. However it said Miss X had refused both the school placement and the alternative education provider as unsuitable.
• In December 2024, the Council told Miss X it would not name Miss X’s parental preference as D’s school placement and issued a final EHC Plan without naming a school. Miss X then appealed to the SEND Tribunal about this December 2024 Plan and the fact no school had been named.
53. The Ombudsman is not an appeal body. I cannot make a decision in the Council’s place about whether there was suitable education available which was “reasonably practicable” for D to access. We investigate the processes a council followed, to assess whether it made its decisions properly.
54. I considered the order of events, and how the Council considered its section 19 duty for D. I found no fault in how the Council considered this. It kept proper oversight of D's part-time timetable, and ensured alternatives (which it considered suitable) were offered to supplement this, which Miss X refused.

EHC Plan reviews

55. Miss X said after D stopped attending school in November 2023, she asked the Council to review D’s EHC Plan. The school held an annual review in early-January 2024. This resulted in the Council issuing an amended EHC Plan in April 2024. I did not find fault with delays in this review process.
56. After the April 2024 EHC Plan, issues with D’s school continued and School Y gave notice to end the placement at the end of May 2024. A month later, in late June, Miss X asked the Council to review the Plan again. I found the Council at fault due to delays because:
• it should have sought to arrange a review of the Plan as soon as School Y gave notice to end D’s placement, it should not have waited for Miss X to ask for this;
• after Miss X asked it to review the Plan, it did not hold a review meeting until six weeks later in August 2024. I decided it could have arranged this sooner; and
• after the August review meeting, it issued a final amended Plan in December 2024. This was six weeks outside statutory timescales.
57. If the Council had acted in good time once School Y had given notice on the placement, I decided it should have held a review meeting by July 2024. If it had then reviewed the Plan within statutory timescales, it should have issued an amended EHC Plan by the end of September 2024. Therefore, the family received the December 2024 EHC Plan 2.5 months later than they should have.
58. This caused Miss X distress and frustrated her right to appeal to the SEND Tribunal about the Plan. The Council should remedy this injustice. However, I do not consider the late EHC Plan changed anything in terms of the education D received. The Council had been consulting schools but had not identified a new placement to name in the Plan by December 2024. Miss X had refused alternative education offered by the Council. If the Council had issued the Plan on time, D would still have been out of school with no education in place.

Social care support

59. Around the same time as School Y reduced D’s timetable in November 2023, the Council placed D on a Child in Need Plan. In August 2024, while awaiting a Stage 2 complaint response, Miss X contacted the Council. She had found out it was planning to remove the family’s allocated social worker and end D’s Child in Need Plan after ten months. She said the family still needed this support. A couple of weeks later the Council told Miss X it had decided there was no further role for the Child in Need process and allocated social worker. It said it had offered Miss X parenting support from its Early Help service instead.
60. Miss X continued to raise concerns that she felt the family still needed support from their allocated social worker, and said she wanted to add this issue to her complaint. When the Council issued its Stage 2 complaint response in October 2024, it said it could not decide about this issue via the complaints procedure. It said the specific social worker may no longer have capacity to support the family, so this would need to be a service-level decision.
61. Miss X was eligible to complain about this issue under the statutory complaints procedure for children’s social care services, because it was about the Council’s actions under section 17 of the Children Act 1989. Therefore, this fell within the scope of the statutory procedure, as set out in the law and guidance. Where a complaint falls within the scope of the statutory procedure, the Council must use it. In response to our enquiries the Council accepted it was at fault because it should have responded to this part of the complaint via the statutory procedure. Given the time that had passed when I began my investigation, I decided in this case there was no benefit to the Council now carrying out a retrospective investigation via the statutory procedure.
62. In response to my enquiries, the Council has now explained its decision to end the Child in Need Plan and offer Early Help support instead. It said support from suitable agencies was in place to address the reasons the Child in Need Plan originally started. It therefore decided the actions under the Plan were complete and this level of section 17 support was no longer needed. I decided there is not enough evidence of fault to justify us investigating this social care decision further. The Council carried out an assessment and decided it should no longer continue D’s Child in Need Plan. Miss X disagrees with this decision, but in the absence of any fault in how the Council considered it, I would not be able to question the decision itself.
63. However, the Council’s failure to consider Miss X’s complaint via the statutory procedure prevented her from receiving a prompt and comprehensive response to her concerns. Also, its response to this issue via its corporate complaints procedure was inadequate and did not properly address the concerns raised. It should remedy the time and trouble caused.

Communication and complaint handling delays

64. Miss X said the Council communicated poorly with her when she raised concerns with its SEN service and did not always respond. In its Stage 1 response to Miss X’s complaint, the Council explained, with dates, how it had responded to Miss X’s contact with the service. It said it had responded to correspondence “within a reasonable and timely manner”. I was satisfied with the Council’s explanation about this and found no fault with how its SEN service communicated with Miss X.
65. Miss X also said the Council delayed in responding to her complaint. The Council only responded to Miss X’s complaint at Stage 2 after she came to the Ombudsman. This took twelve weeks longer than the Council’s complaints procedure says Stage 2 should take. This was fault, which caused avoidable time and trouble to Miss X in pursuing her complaint. The Council should remedy the injustice caused.

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Action

66. Within one month of our final decision the Council will:
1. apologise to Miss X for the faults identified and the impact of those faults. 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 its apology;
2. pay Miss X a total of £300, comprising of:
1. £100 to recognise the distress and frustrated appeal rights caused by delays in the second EHC Plan review; and
2. £200 to recognise the avoidable time and trouble caused by delays in responding to her complaint at Stage 2, and failure to respond to her complaint about social care issues via the statutory complaint procedure.
3. issue a reminder to staff in its SEN service about statutory timescales for reviewing EHC Plans; and
4. issue a reminder to staff who respond to complaints about children’s services and education, about:
1. the Council’s timescales for responding to complaints under its corporate complaints procedure; and
2. what types of complaints should be dealt with under the statutory complaints procedure for children’s social care services, and the requirements of the statutory guidance, ‘Getting the Best from Complaints’.
67. The Council will provide us with evidence it has complied with the above actions.

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Decision

68. I find no fault in how the Council considered its duty to provide alternative education. I also find there is not enough evidence of fault to justify the Ombudsman investigating further the Council’s decision to end the Child in Need Plan. However, I find delays in the EHC Plan review process caused distress, and fault in complaint handling caused avoidable time and trouble. The Council agreed to my recommendations for actions it should take to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman