Summary: Mr and Mrs X complained the Council delayed providing their child, Y with an education placement or an appropriate education following an Education, Health and Care (EHC) Plan review in 2023. The Council was at fault. It failed to keep oversight of Y’s education or decide whether alternative provision was appropriate when they were out of school. It then failed to ensure Y could attend their named placement in the EHC Plan. It meant Y went without education for three terms. The Council also failed to issue an amended EHC Plan naming a post-16 placement in Y’s phase transfer year. The Council agreed to apologise and make payments to Mr and Mrs X and Y to recognise the impact on Y’s education and the distress and uncertainty caused.

The complaint

1. Mr and Mrs X complained the Council delayed providing their child, Y with an educational placement following an Education, Health and Care (EHC) Plan review in 2023 and then allowed the placement to end earlier than previously agreed.
2. Mr and Mrs X say Y has missed education due to the delays and the proposed ending of the placement caused them all distress and uncertainty.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, 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)
5. 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)
6. 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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How I considered this complaint

7. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
8. Mr and 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

Education, Health and Care Plans

9. 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.
10. 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. 
11. 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 Reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.
13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

Alternative provision and the Section 19 duty

14. 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.
15. 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).

SEND tribunal

16. 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.
17. 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.
18. 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.
19. 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).
20. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.

What happened

21. Mr and Mrs X have a child, Y who has special educational needs and disabilities. Y has a diagnosis of autism and suffers with mental health issues including anxiety. Y has an EHC Plan which outlines specialist provision they are entitled to. Y transferred to a mainstream secondary school (School 1) in 2021 and attended a specialist unit at the school for autism. In 2023 Y was chronologically in year 12 but academically in year 10 due to previous health and mental health issues disrupting their education. This meant Y was due to transfer to post-16 education in September 2024.
22. Y stopped attending School 1 in March 2023 due to autistic burnout and the Council became aware of this in April 2023 after speaking with Mrs X. School 1 emailed the Council asking it to hold an interim annual review as soon as possible as well as requesting options for alternative provision for Y. The Council SEND officer responded five weeks later asking School 1 to suggest dates. School 1 suggested various dates during May 2023.
23. Records show School 1 contacted the SEND officer at the Council again in early July 2023 asking for availability to discuss Y. School 1 said an application for tuition from a special school (School 2) was turned down. School 1 said Y was not attending school at all.
24. The SEND officer spoke with Mrs X on the telephone in late July about possible support including home tuition from Setpmber 2023. The officer said following an annual review the Council would consult with School 2 about a placement.
25. An annual review took place in early September 2023. Notes of the review refer to Y not attending school at all. A recent letter from a doctor also said Y was unable to attend school due to autistic burnout. The Council agreed to amend Y’s EHC Plan and consulted with proposed placements including School 2.
26. The Council issued Y’s amended final EHC Plan in December 2023, four weeks outside the statutory timescales. The Plan named School 2 as Y’s placement starting in January 2024 in section I. Section I also stated ‘with transfer in September to…’. It did not name a further placement. Email records show the Council told Mr and Mrs X that School 2 was a one year programme.
27. Y did not start attending School 2 until the end of March 2024. The Council was unable to explain why a place was not made available sooner. When Y did start attending this was on a part time arrangement with Mr and Mrs X’s consent.
28. During March 2024 the Council wrote to Mr and Mrs X about Y’s phase transfer to post-16 education. The officer asked Mr and Mrs X whether they had any preferred placements for Y from September 2024. Mr and Mrs X queried this stating they believed as told that Y’s placement at School 2 was for one year. The Council responded stating School 2 did not offer post-16 placements and therefore the Council would hold a review and issued another amended EHC Plan for Y naming ‘mainstream local college or post 16 provider and setting…to be confirmed’.
29. By April 2024 the Council had not held a phase transfer annual review or issued an amended EHC Plan. So, via an advocate Mr and Mrs X submitted a late appeal to the SEND tribunal against the wording of Section I in the December 2023 EHC Plan. They also appealed about the content of the EHC Plan. They said the appeal was late as the Council led them to believe School 2 was a full one year placement.
30. Mr and Mrs X complained to the Council in May 2024. They complained about the delay in issuing Y’s EHC Plan following the September 2023 annual review and then a further delay in them starting at School 2 and about being misled that the placement was for one year. Mr and Mrs X questioned why the Council named School 2 when Y could only stay there until July 2024. Mr and Mrs X said Y now did not have any named placement for post-16 education and the disruption, after missing so much education already, was causing Y significant anxiety and distress.
31. The Council issued a stage one and then a stage two final response to the complaint. The final response said the Council accepted delay in decision making but was unable to ascertain why the officer said the placement at School 2 was for one year as they no longer worked for the Council. It said there was no requirement for alternative provision during any period because there has always been an offer of education albeit Y was unable to access it.
32. Mr and Mrs X remained unhappy and complained to us.
33. Since complaining to us the Council conceded Mr and Mrs X’s tribunal appeal after School 2 agreed for Y to continue there from September 2024 onwards. The Council issued an amended EHC Plan in August 2024.

The Council’s response to us

34. The Council accepts there is no justifiable reason why Y did not being attending School 2 in January 2024. It also accepted that it failed in both its Section 19 duty, and Section 42 duty between March 2023 and March 2024 when Y was not attending school. It also accepted the short delay issuing Y’s EHC Plan following the September 2023 annual review.
35. The Council said School 2 advised in March 2024 that it does not offer post-16 education, however this was resolved following the appeal. It said Y remained attending School 2 during the appeal so there was no break in education.
36. The Council offered Mr and Mrs X £3000 to acknowledge Y’s loss of education and special educational provision and a further £500 to recognise the distress caused by the faults.

My findings

37. The Council was aware Y was not attending School 1 in April 2023 and the SEND officer was aware shortly after that School 1 asked for an early annual review. Evidence shows the Council had accepted the need for an interim annual review but it was not until September 2023 that the review took place. It is ultimately the Council’s responsibility to ensure reviews take place in a timely manner. The delay in ensuring this review took place was fault.
38. Once the review took place the Council had 12 weeks to issue the final amended EHC Plan. The Council accepts there was a delay of around one month which was fault.
39. The amended EHC Plan named School 2 from January 2024 however the Council failed to ensure this happened and Y did not start attending until March 2024. The Council accepts there is no documented reason to explain why Y did not begin attending in January 2024. The failure to ensure Y attended on time was fault.
40. The Council had both a Section 19 and Section 42 duty between March and July 2023 and then a Section 42 duty from September 2023 once Y was no longer of statutory school age. Throughout the period March 2023 to March 2024 Y did not receive any education or provision in their EHC Plan. There is evidence the Council asked School 1 to consider what alternative provision it could provide however it did not keep any oversight or consider whether it could take steps to resolve Y’s lack of education. Y also lost out on the opportunity to receive specialist provision from January 2024 after their delayed start at School 2. All of this was fault.
41. A large part of Mr and Mrs X’s complaint was about the confusion around naming School 2 as a one year placement in the December 2023 EHC Plan. While I accept this caused Mr and Mrs X and Y distress, they ultimately appealed about the named placement to the SEND tribunal. Investigating this point would inevitably trespass on the jurisdiction of the tribunal. So, in line with paragraphs 17-19 this would fall out of our jurisdiction and so I have not considered the decision making around naming School 2 in the December 2023 any further.
42. However, part of the reason for Mr and Mrs X’s late appeal was because the Council had failed to both hold a phase transfer annual review or issue an amended EHC Plan by 31 March in line with statutory timescales. The failure to do so was fault.
43. The identified faults have caused both Mr and Mrs X and Y injustice. The Council accepts it failed in both its Section 19 duty between March and June 2023, and Section 42 duty between March 2023 and March 2024, towards Y which is a total of three full terms. It has offered £3000 to recognise the injustice this caused. Given Y’s circumstances and the other available evidence it is unlikely, on balance they would have been able to access much provision had it been in place prior to January 2024. Therefore £2000 is appropriate to remedy the period March to December 2023. I have made a further recommendation below to remedy the period January to March 2024 where Y lost the opportunity to attend School 2 and receive specialist support in line with their EHC Plan sooner.
44. The Council has offered £500 to recognise the distress and uncertainty caused to Mr and Mrs X and Y. This is in line with our guidance and is appropriate.

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Action

45. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mr and Mrs X and Y and pay them the £500 offered to recognise the distress and uncertainty caused by the faults identified above. 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.
2. Pay Mr and Mrs X a total of £3750 to acknowledge Y’s loss of education and special educational provision between March 2023 and March 2024.
3. Remind relevant officers to keep oversight and decide whether it has a duty to provide alternative provision when it becomes aware a child is not attending school.
4. Remind SEND officers of the duty to carry out phase transfer annual reviews and issue amended Education, Health and Care Plans in line with statutory timescales naming a post-16 educational placement by 31 March in the year of transfer
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I find fault causing injustice and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman