Summary: The Council was at fault for not providing suitable education to a child when they were out of school. This meant the child missed out on education they should have received. The Council agreed to apologise and make a payment for the loss of education to the child.

The complaint

1. Mr X complains the Council failed to complete an annual review of his child’s Education, Health and Care Plan and failed to provide suitable education to his child when they were out of school.
2. Mr X said his child has missed out on education and the impact of the situation has meant they are now getting counselling. Mr X said he and his wife had to seek advocate support due to the stress and anxiety of having a child with special educational needs at home.

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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. 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. 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)

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. 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

Law and guidance

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 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) 
11. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
12. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
13. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
14. 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))
15. 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)
16. 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’)

What happened

17. There has been extensive correspondence between Mr X, the Council and his child’s school since October 2024. In this section I summarise key events but I do not refer to every single contact and communication.
18. Mr X’s child, Y, has special educational needs. The Council reviewed Y’s EHC Plan in July 2024.
19. Y stopped attending school in October 2024. In November 2024 Y’ s school and the Council set up a new programme of education to help Y reintegrate back into school. At this time the Council considered this was suitable for Y.
20. Y’s school also called an early annual review meeting on 20 November 2024 at Mr X’s request. At the meeting Mr X, the Council and Y’s school discussed Y’s proposed programme of education. The meeting ended without discussions about Y’s current EHC Plan or any amendments.
21. In early December 2024, Y’s new programme of education started. Mr X contacted the Council in December 2024 and asked it to consider Education, Otherwise than at School (EOTAS) for Y as he had concerns about the programme of education being offered to Y.
22. The Council considered Mr X’s request for EOTAS at a multi-agency panel and decided EOTAS was not appropriate for Y. The Council said this was because it believed Y’s needs could be met in an educational setting.
23. In mid-January 2025, Mr X complained to the Council. Mr X said Y had not been able to access formal education since October 2024. Mr X also said he believed an annual review took place in November 2024 but had received conflicting advice about whether this took place. Mr X reported Y had not received the alternative provision as part of their programme of education.
24. In late January 2025, the Council responded to Mr X’s complaint. The Council said:
• Y’s school held an early annual review meeting in November 2024 but this focused on discussing the programme of education to reintegrate Y back into school. The school then suggested a further meeting where it could deal with an annual review.
• It considered Mr X’s request for EOTAS but decided an educational setting could meet Y’s needs.
• It has contacted Y’s school to ask it to arrange an annual review meeting so the paperwork for this can be completed and a formal decision with appeal rights sent to Mr X.
25. Mr X asked the Council to consider his complaint at the next stage of its complaints process. Mr X asked the Council to provide Y with alternative education and said Y was not getting support from school. Mr X also raised concerns that Y’s annual review was delayed.
26. On 30 January 2025, the early annual review meeting took place for Y’s EHC Plan. At the meeting Mr X asked the Council to arrange alternative provision for Y. Y’s school also said it supported further alternative provision for Y other than mainstream education. It was also not clear whether Y’s school had been able to resolve the issues Y was having accessing online learning.
27. In early February 2024, the Council provided its final response to Mr X’s complaint. The Council said:
• In October 2024, Y’s school worked to devise a proposed timetable of provision to support their return to education.
• The meeting on 20 November 2024 held discussions about Y’s timetable and Y’s school adapted the timetable to consider Mr X’s concerns.
• It recognised there were some difficulties accessing the remote learning and it had been in discussions with the school about this.
• Provision had always been in place for Y at school in terms of the original provision plan and remote learning for core subjects.
• A further annual review meeting was held as the school said not all points had been covered in the November 2024 meeting.
• It considered Mr X’s request for EOTAS. The Council did not feel an EOTAS package was right for Y and raised concerns about the level of isolation that it could bring.
• An annual review of Y’s EHC Plan happened in July 2024 and a decision not to amend was sent to Mr X with appeal rights. The Council said a further annual review was not due until July 2025.
• Y’s school held an early annual review at Mr X’s request. During the meeting, the discussion points Mr X and his advocate raised were primarily related to the proposed reintegration timetable. The Council said it recognised this was the more immediate concern of how to support Y’s reintegration. This did mean that it was not possible to review the EHC Plan within the reasonable timeframes of the meeting.
28. On 26 February 2025, the Council wrote to Mr X and told him it was not going to amend Y’s EHC Plan. This decision gave Mr X appeal rights.
29. In April 2025, the Council agreed to put in place alternative provision for Y. This provision started in May 2025.
30. In response to our enquiries, the Council said it reviewed the case again and acknowledged that it should have considered in January 2025, whether Y’s programme of education was working. The Council said this left Y without suitable education from January 2025 to May 2025. The Council offered to pay £2,200 to recognise the loss of education to Y for this period and £300 to recognise the distress this situation caused Mr X.

Analysis

Alternative education

31. Y stopped attending school in October 2024 and the Council was aware of this. At this time, the Council and school came up with a new timetable of provision for Y to help them try to reintegrate back into school. I am satisfied the Council properly considered whether it had a duty to provide alternative education but decided it did not because of the steps Y’s school were taking and the provision on offer. While I recognise Mr X disagreed with this view I cannot see any fault in how the Council came to this decision.
32. Mr X also asked the Council to consider EOTAS for Y in December 2024. The Council considered this request at its multi-agency panel and decided EOTAS was not appropriate. The Council explained this was because it believed Y’s needs could be met in an educational setting. I am satisfied the Council properly considered whether it had a duty to provide EOTAS for Y.
33. Once Y’s new timetable was in place, in December 2024, Mr X reported problems with Y being unable to access parts of it. At this stage it would have been helpful for the Council to have reviewed the provision in place and looked at whether it was working in light of Mr X’s concerns. Failure to do this was fault. The Council has now recognised this following our enquiries into this complaint and acknowledged its failure to review the provision left Y without suitable education from January to May 2025. The Council offered £2,200 to acknowledge the lack of suitable education provided to Y for this period. I am satisfied this is a suitable remedy for the injustice caused to Y and is in line with what we would recommend.
34. Mr X has also experienced anxiety and frustration knowing his child was not receiving suitable education. He had to spend a significant amount of time pursuing this with the Council and took on advocate support to help him cope. The Council has recognised the above fault has also caused injustice to Mr X and offered £300. I am satisfied this is a suitable remedy for the injustice caused to Mr X and is in line with what we would recommend.

Annual review

35. An annual review meeting took place in November 2024 for Y’s EHC Plan, however it was not recorded as an annual review meeting as the parties only discussed Y’s proposed programme of education. Mr X believed it was an annual review meeting and was expecting a decision from the Council as to whether the Council would amend or maintain Y’s EHC Plan. Failure to properly inform Mr X about the purpose of this meeting was fault.
36. As Mr X was unclear about whether an annual review took place, he included this as part of this complaint. It was only after Mr X chased this up with the Council that a further annual review meeting was arranged for 30 January 2025. While this must have been frustrating for Mr X I am satisfied an apology is sufficient to remedy the injustice caused. Following on from this the Council issued Mr X an appealable decision within four weeks of this meeting.

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Action

37. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mr X for not ensuring Y had suitable education from January to May 2025 and for the confusion around the annual review meeting. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £2,200 to recognise the loss of education Y suffered between January and May 2025.
• Pay Mr X £300 to recognise the anxiety and frustration he and his family experienced resulting from the Council not putting in place suitable education for Y.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman