Summary: The Council was at fault for failing to ensure the Education Health and Care Plan was reviewed within statutory timescales for Ms X’s grandchild, Y. The Council was also at fault for failing to ensure Y had access to suitable education for over two and a half terms. The Council agreed to apologise to Ms X and pay her £400 to recognise the injustice caused.

The complaint

1. Ms X complained her grandchild’s school removed her grandchild from enrolment in July 2023 and the Council failed to provide suitable education for her grandchild since this point.
2. Ms X also said the Council failed to deliver her grandchild’s Education, Health and Care (EHC) Plan since the removal from school enrolment.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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).
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).
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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).
9. 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

10. I have investigated Mrs X’s complaint from 17 July 2023 to 10 July 2024.
11. I have exercised my discretion to investigate matters back to July 2023 despite Ms X only bringing her complaint to the attention of the Ombudsman in February2025. This is because the cause of the issues Ms X complained about stem from July 2023. There is good reason to investigate matters since July 2023 because they directly impact the overall findings in this matter. Ms X and the school were also waiting on the Council’s input on this matter before reaching an agreement between themselves at the end of January 2024.
12. I have ended my investigation on 10 July 2024. This is because the Council produced a Final amended EHC Plan for Ms X’s grandchild on this date. Ms X has appealed this EHC Plan to the SEND Tribunal in October 2024. Ms X has appealed both Sections F and I of the EHC Plan. As part of this appeal Ms X has appealed the suitability of the Alternative Provision of education on offer, requested a package of Education Otherwise Than At School for her grandchild and disputed the suitability and delivery method of the Section F provision. Any finding the Ombudsman could make in this matter would directly overlap with the role of the tribunal given the nature of Ms X’s appeal. As such, the Ombudsman is jurisdictionally barred from investigating Ms X's complaint after 10 July 2024.
13. I have included information after 10 July 2024 within this decision statement as far as it is relevant to the matters investigated up to 10 July 2024. This includes Ms X’s complaint correspondence with the Council.

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How I considered this complaint

14. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
15. Ms X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

EHC Plans

16. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 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. 
17. Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
18. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
19. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
20. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
21. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
22. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
23. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
24. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
25. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.

Alternative provision of education

26. 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.
27. 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)
28. 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))
29. 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)
30. 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? updated August 2023
31. 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;
• consider (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.

32. 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.
33. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons.
34. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

35. On 13 February 2021, the Council issued an amended Final EHC Plan for Ms X’s Grandchild, who I shall refer to as Y. This EHC Plan detailed the setting staff should deliver the full Section F provision for Y.
36. The Council decided the maintain Y’s EHC Plan on 9 March 2022.
37. On 17 July 2023, Y’s school suspended Y. The school told the Council about the suspension and its intention to hold a reintegration plan meeting with Y and Ms X with the aim to facilitate off-site education and activities. Y’s school held this meeting on 20 July 2023. Following the meeting, the school asked the Council what alternative provision of education providers might be available for Y and asked for input about the provisional part-time timetables it had produced.
38. The school chased the Council on 7 August 2023 for response. The school suggested potentially using online learning or a dedicated tutor but wanted the Council’s advice.
39. On 29 August 2023, the Council provided advice to Y’s school about which part-time timetables to use and how to structure the provision. Y’s school contacted Ms X the same day to suggest a provisional option and asked for their input. Ms X raised concerns about the suitability of the school’s suggestions and requested fulltime alternative provision of education.
40. Y’s school told the Council on 30 August 2023 it did not believe it could put in place short-term provision and reintegrate Y as at originally planned. The school said it supported Ms X’s suggestion of looking for an alternative setting for Y. The school asked the Council for names of alternative education providers who could offer full-time provision for Y.
41. On 5 September 2023, the Council held a meeting with Y’s school and Ms X. The Council and school agreed to discuss an education plan for Y by 8 September 2023. The school sent an updated part-time timetable to Ms X on 8 September 2023 following discussions with the Council to start from 11 September 2023. The school confirmed the Council was still looking into potential alternative provision of education providers. Ms X raised further concerns about the revised timetable.
42. The Council and school discussed the matter further and proposed a third timetable to Ms X on 15 September 2023. The Council said it considered Y should trial morning sessions arranged by the school while it continues to look into the afternoon sessions. Ms X did not agree with the proposed timetable.
43. Y’s school consulted with three alternative provision of education providers for Y. Two providers responded advising they could accept Y subject to a successful taster session. The Council told Ms X about these offers on 28 September 2023. Ms X said transport arrangements needed to be put in place before Y could attend the taster sessions.
44. On 6 October 2023, the third alternative provision of education provider confirmed it could also accept Y. The school asked what the Council’s current position on transport for Y was. Y’s school chased the Council for an update on 20 October 2023, 6 November 2023 and 30 November 2023.
45. The Council decided on 4 December 2023 to arrange an annual review of Y’s EHC Plan and asked the school to arrange this. The Council made no decision on Y’s access to education. Y’s school arranged the EHC Plan annual review meeting for 22 January 2024.
46. At the annual review meeting on 22 January 2024, it was confirmed that Y was not attending school. The annual review meeting notes detailed the Council needs “to find an alternative provision for Y which meets” their needs. The annual review meeting included an agreed action of the Council by 31 January 2024 “to ask their respective teams for suggestions regarding suitable alternative provision”. The Council also agreed to find a new school placement for Y.
47. From 22 January 2024 to 25 January 2024, Ms X liaised with Y’s school. Ms X told the school she had arranged education for Y since September 2023. Y’s school agreed to cover the costs Ms X incurred since September 2023 and to pay for the education Ms X provides moving forwards on receiving evidence of the costs. Y’s school also agreed to fund an alternative provision of education provider for one day a week. The Council was copied into these emails.
48. On 29 January 2024, Y’s school made a back-payment to Ms X and set up a process for payment moving forwards.
49. From 29 January 2024 to 10 June 2024, the Council liaised with new school placements for Y. The Council issued a decision to amend Y’s EHC Plan letter to Ms X on 6 March 2024.
50. Ms X told the Council Y’s school was reimbursing her for education she provided for Y on 10 June 2024. The Council discussed this with Y’s school who shared a timetable of the provision Ms X had put in place.
51. On 19 June 2024, the Council served notice on Y’s school. The Council said the school would continue to provide Y’s provision until the end of the academic year with the Council taking over Y’s provision in September 2024.
52. The Council issued an amended Final EHC Plan for Y on 10 July 2024. The Council told Ms X of her rights to appeal to the SEND Tribunal.
53. Ms X made a formal complaint to the Council on 15 September 2024. Ms X said:
• The Council failed to secure educational provision for Y since July 2023.
• In the absence of suitable educational provision from the Council or school she has arranged activities for Y which the school agreed to fund in January 2024. Ms X said Y coped well with these activities.
• The Council emailed her in July 2024 stating they considered the education she provided was inappropriate but she disputed this.
54. The Council acknowledged Ms X’s complaint on 19 September 2024 and said it would respond within 20 working days of this acknowledgement.
55. On 14 October 2024, the Council provided its Stage 1 complaint response. The Council said:
• It does not usually provide input for securing Alternative Provision of education for children who are on roll at a school and schools are expected to carry out their own due diligence.
• It acknowledged it was out of timescales in producing Y’s EHC Plan following the annual review meeting on 22 January 2024 and apologised for this.
• The Council has now served notice on the school because of the concerns over monitoring of Y’s educational placement.
• It was now looking to secure suitable alternative provision of education for Y with a personal budget.
56. Ms appealed the EHC Plan to the SEND Tribunal on 14 October 2024.
57. On 17 October 2024, Ms X sought consideration of her complaint at Stage 2 of the Council’s complaint procedure. The Council acknowledged Ms X’s complaint on 18 October 2024 and promised a response within 40 working days of the acknowledgement.
58. The Council issued its Stage 2 complaint response on 11 December 2024. The Council said:
• It agreed to arrange Alternative Provision of education for Y following the annual review meeting in January 2024 but the school would continue to arrange provision for Y until it could arrange this.
• It found out in June 2024 that Ms X had made Y’s alternative provision of education arrangements and the school was simply funding this. The Council said it decided to take over Y’s alternative provision and serve notice on the school. The Council said it made this decision because of the inappropriateness of the education arrangements Ms X put in place.
• It has provided education for Y since September 2024 and has since agreed a personal budget for Y.
• It has made consistent efforts to arrange suitable education for Y and did not uphold Ms X’s complaint.

Analysis

EHC Plan delays

59. The Council had 12 months to complete a review of Y’s EHC Plan following issuing its decision to maintain Y’s EHC Plan on 9 March 2022. This meant the Council had until 9 March 2023 complete an annual review meeting and send a letter advising of its decision to maintain, cease or amend Y’s EHC Plan. The Council did not complete this process until 6 March 2024. This was seven and a half months outside the statutory timescales from the start of our investigation date of 17 July 2023 and was fault.
60. The Council failed to issue its decision to amend letter within four weeks from the annual review meeting on 22 January 2024. This was fault. I have already accounted for this delay within the timescale detailed in paragraph 59.
61. The Council had 12 weeks following the annual review meeting on 22 January 2024 to issue a Final EHC Plan, given its decision to amend the plan. It took until 10 July 2024 to issue the amended Final EHC Plan. This was a three-month delay was fault.
62. The Council’s fault through its delays totalling ten and a half months caused Ms X frustration and inconvenience and significantly delaying her appeal rights to the SEND Tribunal.

EHC Plan provision

63. Once a council produces a child’s EHC Plan it has a duty to ensure a child receives the provision detailed in their EHC Plan. A council may delegate delivery of this provision to a school but the ultimate responsibility remains with the Council.
64. In Y’s EHC Plan, the Council specified that all Section F provision would be provided by the setting staff, this was Y’s school.
65. From 17 July 2023 to 10 July 2024, Y received no alternative provision of education arranged by either the Council or the school. The Council has also confirmed, in its opinion, the education Ms X arranged for Y was inappropriate. It is clear no EHC Plan provision was provided to Y as part of this provision meaning Y went without EHC Plan provision from 17 July 2023 to 10 July 2024.
66. While the Council delegated delivery of the EHC Plan provision to Y’s school, it has been aware since 17 July 2023 that Y was not attending school. The Council also knew about the issues in arranging Alternative Provision of education for Y. Despite full awareness of Y’s situation, the Council failed to ensure Y had access to the provision detailed in their EHC Plan. This was fault causing Y to miss out on suitable educational support.
67. I have addressed the impact of this lost provision on Y in paragraphs 75 to 77.

Alternative Provision of education

68. Y’s school told the Council about Y’s exclusion on 17 July 2023. This meant the Council had a duty to consider its Section 19 duty and decide how it should provide education for Y. The Council had to decide what action to take in six working days. Y’s school accepted responsibility for delivery of Y’s Alternative Provision of education and outlined its plan to the Council for how it would deliver this.
69. I consider the Council did not need to act in July 2023 to provide education for Y given the particular circumstances and the ownership of the situation from the school. However, Y’s school asked the Council for input about the provision on 20 July 2023 and the Council failed to respond to the school until 29 August 2023. This meant Y’s school experienced a six-week delay in being able to suitably plan Y’s education. This delay in responding by the Council was fault. However, this delay did not cause an injustice to Y because this delay fell only during the summer holidays when Y would not receive education.
70. Following the Council’s input, Y’s school told the Council it did not feel it could provide suitable provision for Y or reintegrate them. The Council took ownership of the situation in September 2023. The Council has shown it considered Y’s individual circumstances, worked with Y’s school to draft up educational timetables for Y which included alternative provision of education and liaised with Ms X about these options. While Ms X did not consider the educational offers suitable, the Council has acted in line with its statutory duty until 28 September 2023 and I do not find fault with it.
71. From 28 September 2023, Y’s school and Ms X have detailed the main barrier to Y accessing alternative provision of education as the transport arrangements. The Council knew about this and despite contacts from Y’s school in October 2023, November 2023 and December 2023, the Council failed to address these concerns. The Council took no action to arrange Y’s alternative provision of education until 22 January 2024 when it held the EHC Plan annual review. This was fault.
72. Despite promising to source alternative provision of education for Y at the annual review meeting on 22 January 2024, the Council again failed to take any action to provide education for Y. The Council’s inaction continued to the end point of this investigation on 10 July 2024. This was fault.
73. The Council has advised it delegated provision of education to Y’s school. If the Council considered Y’s school was suitable and accessible education, it could decide it did not hold a Section 19 duty for Y. However, the Council never decided Y’s school was suitable and accessible for their needs. In fact, the Council’s decision making since September 2023 was that Y needed alternative provision of education and, in January 2024, a new educational placement. The Council failed to meet its Section 19 duty since 28 September 2023 by failing to provide any meaningful input into Y’s education.
74. When the Council reviewed Y’s access to education arrangements in June 2024 and July 2024, it decided the education arranged for Y was not appropriate and did not have suitable education or progression pathways for Y. The Council’s failure to carry out its Section 19 duty has therefore caused Y to access education the Council considered was unsuitable. And, as explained in paragraphs 63 to 66, Y also did not receive their EHC Plan provision for the entire duration the Council was at fault from 28 September 2023 to 10 July 2024.
75. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
76. I have considered Y’s individual circumstances and our guidance on remedies. I would normally ask the Council to pay Ms X in the region of £2,000 per term for Y’s missed education caused by the fault of the Council. Given the Council’s fault caused Y to miss education for two terms, seven weeks and two days, a normal financial award we would offer would be about £5,000 in these circumstances. This is because of the Council’s failure to provide any education and any EHC Plan provision for Y balanced against Y not being in a significant year of education.
77. However, Y’s school has already reimbursed Ms X £5,058.67 for the education she provided for Y during this same time. Due to the monetary similarity, I do not consider the Council should pay Ms X anything further in these circumstances as she has already been suitably reimbursed for the education she arranged for Y.

Service improvements

78. The Ombudsman is aware that Hampshire Council is currently undergoing a significant transformation programme for its SEND services following previous recommendations from the Ombudsman. The Council has developed a Section 19 policy and process, embedded new procedures within its SEND team and started a review of historic cases to ensure consistency and compliance. These ongoing actions by the Council directly cross-over with the issues identified in this case. For this reason, I am not making any service improvements.

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Action

79. Within one month of the Ombudsman’s final decision the Council will:
• Provide an apology to Ms X and pay her £400 for the avoidable frustration and inconvenience caused and delay in Ms X being able to exercise her appeal rights through its ten and a half month delay outside the statutory timescales in reviewing Y’s Education, Health and Care Plan.
80. The Council should provide us with evidence it has complied with the above actions.

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Decision

81. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman