Summary: Ms X complained the Council failed to provide her child, Z, the special educational provision set out in his Education, Health and Care Plan. We find the Council at fault for a delay in issuing the final amended Education, Health and Care Plan following an annual review. This caused Z and Ms X frustration. The Council has agreed to apologise to remedy the injustice caused.

The complaint

1. Ms X complained the Council failed to provide her child, Z, with access to the special educational provision set out in his Education, Health and Care Plan. Ms X told us this has caused a loss of education, loss of provision and progress and has been detrimental and caused harm to Z. Ms X would like the Council to apologise, provide compensation and staff training, and improve its policies.

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The Ombudsman’s role and powers

2. 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)
3. 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(1), as amended)
4. 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

5. 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)
6. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
8. 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. For this reason, I have not investigated B’s access to education after the Council issued the amended EHC Plan in August 2024.
9. My investigation looks at the Council’s actions in providing B’s education between January 2024 and August 2024.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X and the Council have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Legal and administrative background

Education Health and Care Plans

12. 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. 
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Annual review

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 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.

Section 19 duty

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. [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.
18. 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)

What happened

Access to education

19. Z had an EHC Plan in place which was finalised in October 2023, following a Tribunal order. The Tribunal order determined school A was suitable and should be named in section I of Z’s EHC Plan.
20. At the end of January 2024, an incident took place at school A. During this incident, Z left the school grounds. Z refused to return to school after this incident took place.
21. The school completed a risk assessment and determined it could continue to meet Z’s needs.
22. At the beginning of February 2024, a multi-agency meeting was held to discuss the incident and Z’s access to education. During this meeting Ms X’s advocate requested the Council provide alternative provision for Z as he was refusing to attend school. The Council explained its view was that school A could meet Z’s needs and deliver his special educational provision if he attended. The Council did not consider its section 19 duty to be engaged.
23. After the meeting, the Council emailed Ms X to confirm that Z had a suitable school named in his EHC Plan which could meet his needs and remained an appropriate setting, therefore section 19 was not engaged. The Council advised Ms X she could request a change of placement during the annual review which was due to take place the following day.
24. At the beginning of February 2024 school A offered to provide alternative provision in the form of online lessons. Z did not engage with these.
25. Z’s speech and language sessions were also offered online however Z did not engage.
26. Between the end of February 2024 and the end of June 2024, school A provided weekly wellbeing sessions to support Z’s wellbeing and to develop his travel training and social interaction skills in the community. These sessions were reported to be positive and Z engaged well.
27. School A also provided resources for Z to complete work at home. This included a whiteboard, stationery and workbooks. It was agreed Z would complete work each week which would be collected by staff for marking, however no completed work was returned to school.
28. From June 2024, Z attended school B, Ms X’s parental preference.

Annual review

29. An annual review meeting was held towards the end of February 2024. In accordance with the statutory timeframe for completing an annual review, the final amended Plan should have been issued no later than the second week of May 2024.
30. The Council issued Z’s final amended Plan in the second week of August 2024. This is a delay of approximately 3 months.

My findings

31. The Council took account of professional advice and the evidence available and considered school A remained suitable and accessible for Z. The Council explained to Ms X its view that school A could provide Z with suitable education and the provision detailed in his EHC Plan if he were to attend school.
32. The Council was aware of the agreement for school A to provide Z with work to complete at home and the weekly wellbeing sessions. There is therefore no fault in the Council’s actions in considering its duty to provide Z with access to suitable, full-time education and the special educational provision detailed in his EHC Plan.
33. There was a three month delay in the Council issuing Z’s final Education, Health and Care Plan. This is fault, however Z started his new placement at school B in June 2024. Therefore, I do not consider the delay in issuing the final amended Plan impacted B’s access to education or special educational provision. The delay in issuing the final amended EHC Plan caused frustration for Ms X, this is an injustice.

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Action

34. Within one month of the final decision the Council will:
• Apologise to Ms X for the faults identified. 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.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman