Summary: The Council was at fault for failing to consider implementing alternative educational provision when it became aware that Mrs X’s child, Y was not attending school in February 2024. The Council was also at fault for failing to ensure the review of Y’s Education, Health and Care (EHC) Plan was held within statutory timescales. The Council has agreed to apologise and make a payment to recognise the distress, frustration and uncertainty this caused.

The complaint

1. Mrs X complained the Council failed to consider implementing alternative educational provision when it became aware that Mrs X’s child, Y was not attending school in February 2024. Mrs X also complained about the Council’s failure to ensure Y’s EHC Plan was reviewed within statutory timescales.
2. Mrs X says this meant Y missed out on suitable educational provision which has caused them distress, frustration and uncertainty. It has 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. In October 2024, the Council issued an amended final EHC Plan naming the same mainstream school. Mrs X appealed as she did not agree a mainstream school could meet Y’s needs. I cannot investigate anything past October 2024 when the Council issued the Plan. Doing so would involve looking at the Council’s decision to name a mainstream school and therefore trespassing on the Tribunal’s jurisdiction.

How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. 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 Plans and Annual Reviews

10. 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.
11. 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) 
12. 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.
13. 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.

SEND tribunal

14. 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.
15. There is a right of appeal to the SEND tribunal against the 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.

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. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year.
19. 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
20. 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.

What happened

21. Mrs X has a child Y who has special educational needs. In April 2023, the Council issued Y with an EHC Plan which outlined the specialist provision they were entitled to. The EHC Plan named a mainstream primary school as Y’s educational placement.
22. Y transitioned to secondary school in September 2023 but was absent due to anxiety from October. The school consistently recorded Y as absent due to illness for the 2023-2024 school year.
23. The school put in place weekly 40 minute sessions with an external tutor to help reintegrate Y back into school from November 2023. The records show Y attended six of these sessions until the end of January 2024. The records show Y stopped attending after that. Mrs X said this was due to pressure being put on Y to enter the school premises which led to distress and the inability for Y to attend at all.
24. In February 2024, Mrs X contacted the Council to notify it Y had not attended school since October 2023.
25. In May 2024, the school held Y’s annual review meeting. The school recorded the following information:
• The school could no longer meet Y’s needs
• Mrs X is of the view Y requires a special school placement going forward
• The school continues to offer Y 40 minute weekly sessions but Y is unable to access these. This is because Y is unable to enter the school premises due to anxiety.
• One of the actions arising from the meeting was arranging an online learning and teaching platform for Y to access.
26. Mrs X has told us Y was unable to engage with the online learning and teaching platform as they required 1:1 in person tutoring. The Council confirmed Y initially attended but disengaged.
27. In June 2024, the Council issued a draft amended EHC plan.
28. In September 2024, Mrs X raised a stage one complaint regarding the Council’s failure to implement alternative educational provision for Y in line with its section 19 duties.
29. In October 2024 the Council issued Y’s final amended EHC Plan naming the same mainstream school.
30. The Council issued a stage one complaint response the same month. The Council said it understood the school was offering weekly tutoring sessions and Y had access to an online learning platform. It also said the Council has a section 19 service that can be accessed if a child is not attending due to their health needs. However, it could find no evidence that Mrs X or the school had made a request or referral for this. The Council apologised if Mrs X was not aware she could access this.
31. Mrs X asked for the Council to consider her complaint at stage two of Council’s complaints process. The Council rejected this as it said it would not achieve anything further at this point. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

The Council’s response to our enquiries

32. In response to the delays with the annual review, the Council accepted it should have ensured this was completed by April 2024. The Council said there was a short-period of delay and it held this five weeks late.
33. The Council said it was aware of Y’s reduced attendance in February 2024. However, it said initial correspondence with the school led the Council to believe that the school had put individual tutoring in place.
34. The Council said its position is that it considered the appropriateness and availability of Y’s education through the annual review process and determined that the school named in Section I could meet Y’s needs should they attend. The Council said whilst Mrs X expressed concerns about Y’s ability to attend, this was not supported by medical evidence.

My findings

Annual review

35. Y’s final EHC Plan was issued in April 2023 so the Council should have ensured the annual review of Y’s Plan was held by April 2024 at the latest. This included issuing the amendment notice. The Council then had a further eight weeks to issue Y’s final amended EHC Plan. Therefore, the Council should have completed the whole process by early June 2024. However, the Council failed to ensure the annual review meeting was held until May 2024 and failed to issue the final amended EHC Plan until October 2024. This was a delay of four months outside of statutory timescales which was fault. This caused Mrs X distress, frustration and uncertainty and significantly delayed her appeal rights.
36. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to provide relevant staff with training on the Council’s statutory duties regarding EHC Plans and the annual review process. The Council also agreed to review its processes to ensure delays in meeting statutory deadlines will not be repeated on future cases. Therefore, it does not require a further service improvement.

Alternative provision

37. The Council first became aware of attendance concerns in February 2024. Given that Y already had over 60 days marked as absent due to illness by this point, we would expect there to be some evidence of the Council’s consideration of this in relation to its section 19 duties. The Council said it thought the school had put in place individual tutoring. However, the attendance records show Y had stopped attending the tutoring by February 2024. The Council has not provided any records showing how it kept Y’s attendance and the provision offered by the school under review. It has also not provided any evidence of oversight or how it considered this to be suitable.
38. Between February 2024 and October 2024, the Council was aware Y was not attending school and failed to consider its section 19 duty which was fault. I cannot say Y would have received alternative provision had the Council considered its section 19 duty towards Y but it has caused Mrs X distress, frustration and uncertainty about the matter.
39. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to remind relevant officers and managers to make and store clear and accurate records of section 19 decision making in relation to arranging suitable education for pupils who are out of school. The Council also agreed to introduce a protocol, policy or procedure that would explain how it would meet the needs of children and young people it knew to be out of school for reasons of illness, exclusion or for other reasons. Therefore, it does not require a further service improvement.

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Action

40. 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 failure consider its section 19 duty and the delays with the annual 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 £500 to recognise the distress frustration and uncertainty caused by its failure to consider its section 19 duty between February and October 2024.
3. Pay Mrs X £400 to recognise the distress frustration and uncertainty caused by the four month delay in progressing Y’s annual review and issuing an amended final Plan which has in turn significantly delayed her appeal rights.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. 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