Summary: The Council failed to make sufficient and prompt efforts to find Ms X’s daughter, Z, a suitable educational placement when her school could no longer meet her needs. It was also more than seventeen weeks late in finalising Z’s Education Health and Care Plan (EHC Plan). The Council has agreed to pay Ms X £1,750 in recognition of the injustice caused by these faults and to make several service improvements. The Council was not at fault for refusing to provide a personal budget to Z for a gym membership.

The complaint

1. Ms X complained that the Council:
• issued her daughter’s Education, Health and Care Plan (EHC Plan) several months late;
• failed to include provision she believed Z required in her Plan; and
• failed to provide funding it said it would for gym membership to help Z manage her mental health issues.
2. Ms X said the delay in producing the EHC Plan caused her daughter distress, uncertainty and more missed education than was necessary.

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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 an injustice, 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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How I considered this complaint

6. I considered the information provided by Ms X and the Council.
7. I considered the relevant law and guidance as set out below.
8. I considered our Guidance on Remedies
9. I considered comments Ms X and the Council made on previous draft decisions before making this final decision.

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Law and guidance

SEND Tribunal

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

Education, Health and Care Plans (EHC Plans)

11. A young person with special educational needs may have an Education, Health and Care (EHC Plan). This sets out their needs and what arrangements should be made to meet them.
12. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available.
13. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school. 

Annual reviews of EHC Plans

14. Councils must review EHC Plans regularly, usually at least every 12 months, or when there is a significant change in the child’s needs, such as a breakdown in education placement.
15. Within four weeks of the annual review meeting the council must decide whether it proposes to keep the EHC Plan as it is, amend the Plan or cease to maintain it. At this point it must notify the child’s parent and the educational setting. The parent can appeal the council’s decision to amend the EHC Plan to the SEND Tribunal.

Finalising EHC Plans and right of appeal to Tribunal

16. The council should then issue the final amended EHC Plan within eight weeks of the draft amended Plan being issued.
17. In a final amended EHC Plan, Section I must state the name and type of school to be attended by the child or young person. However, these details must not be included in the draft EHC Plan, as the drafting stage is when parents can tell the council what school they want the child to go to.
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. This right of appeal starts when the final amended Plan is issued.

(Special Educational Needs and Disability Regulations 2014 and the SEND Code of Practice 2015)

Section 19 duty

19. 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.
20. 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)

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What I found

What happened

21. Ms X’s daughter, Z, has anxiety, speech and language difficulties and behavioural issues.
22. She attended School A, a mainstream secondary school, from September 2018. The records show Z struggled with anxiety and behavioural issues while attending this school. As a result, she often accessed a reduced timetable.
23. Z would have been due to sit her GCSEs in the academic year starting September 2021.
24. However, on 26 May 2021, School A said it could no longer meet her needs following a recent incident.
25. Z remained on roll at School A which offered a further reduced timetable of lessons that she could access on the school site until a suitable alternative placement was found.
26. Ms X rejected this offer from the school as she said Z attending School A in any capacity was not suitable for her at the time.
27. The Council held an annual review of Z’s EHC Plan and decided to amend the Plan. On 2 June 2021, the Council produced a draft amended EHC Plan and sent it to Ms X.
28. Section I of the EHC Plan was left blank, in line with the guidance. Section F of the EHC Plan set out the special educational provision the Council believed Z required. This included, but was not limited to:
• participation in small social skills groups;
• support with emotional and technical vocabulary; and
• 1:1 ‘withdrawal sessions’ to help her social communication needs.
29. The Council’s cover letter with the draft amended EHC Plan told Ms X she had fifteen days to respond to the amended Plan.
30. Ms X did not provide any further comments on the draft amended EHC Plan. However, it was already recorded in the draft Plan that she no longer believed School A was suitable for Z and she thought she would benefit from education outside a school setting.
31. The Council issued Z’s final EHC Plan 17 weeks later, on 25 November 2021.

Action taken in the one eight-week period following the draft amended EHC Plan being issued

32. In the initial eight-week period after the Council issued Z’s draft amended Plan, the Council consulted two special schools and its own behaviour and attendance service. These placements either could not meet need or did not respond.
33. During this time, School A reiterated its offer to Ms X of a reduced timetable for Z but Ms X again rejected this as she said Z could not self-regulate at School A and so she kept Z at home.
34. On 19 July 2021, the Council emailed the school asking how it was progressing with finding Z a place to study a vocational course, as it said Ms X had recently requested this.
35. The school responded to say Ms X and Z had since changed their mind regarding the course and only Level one courses were available, which were unlikely to be suitable for Z.

Action taken in the 8-25 weeks period following the issuing of the draft amended EHC Plan

36. On 23 August 2021, the Council contacted School A again. It said, “is there absolutely nothing else that you as a school could do to support (Z) in terms of alternative provision for her final school year from September (2021)?”. The school responded to say, “we have already offered everything we can, it either hasn’t worked or has been rejected”.
37. The Council did not consult any further provisions between the 23 August and late September 2021.
38. On 21 September 2021, Z’s case was discussed at a multi-agency panel for SEND placements and funding. Following this meeting the Council consulted four more placements.
39. On 13 October 2021, School A wrote to the Council to say Z was still without any education provision and Ms X was “incredibly frustrated”. The school reminded the Council that it said it could not meet Z’s needs in June 2021 and that the reduced timetable it offered Z had been rejected.
40. The school was concerned that Z was in her GCSE year, without any education in place, and said “time is running out”. The school asked how Ms X could make a complaint.
41. On 14 October 2021, Ms X complained to the Council. She said the final amended EHC Plan had still not been issued and Z was still without any education in place. She said this was frustrating her right to appeal to the SEND Tribunal about her daughter’s provision.
42. By late October 2021, the four placements the Council had consulted in late September either had not responded or said they could not meet Z’s needs.
43. The Council responded to Ms X’s complaint on 27 October 2021. It apologised for not producing the final amended EHC Plan within the statutory timeframes. It said it had been consulting with special and mainstream schools but none of the schools consulted to date could meet Z’s needs.
44. It said it proposed to take Z off School A’s roll so that it could refer her for interim tutoring while it continued to look for a suitable placement. The Council said it could not refer Z to the interim tutoring service until Z was no longer on roll at School A.
45. The Council made a referral to the interim tutoring service on the same day as the complaint response.
46. On 8 November 2021 the Council sent out eleven consultations to colleges for early college entry, meaning Z would start at a course at a college before sitting her GCSEs. However, the majority of colleges consulted said they could not offer this.
47. When Z’s EHC Plan from June 2021 was finalised on 25 November 2021, the Council did not name a school placement, or type of placement, in Section I as it had not identified one.
48. Instead, Section F outlined the provision Z would be accessing, which was 1:1 tutoring through the interim tutoring service for ‘a designated number of hours per week’ which would be reviewed termly. This was a temporary placement until it found more suitable provision.
49. Z started the tutoring on 30 November 2021 for three hours per week. Ms X told the Ombudsman during our investigation that this had been working well for Z and she remains there to date. However, she was informed she could not sit her GCSEs in the 2021/22 school year due to the amount of education she had missed.

Suitability of education

50. During the investigation, the Ombudsman asked the Council to say how it satisfied itself that the education Z received between May 2021 and November 2021 was suitable for her needs.
51. The Council responded that it could not comment on whether the provision Z received during this time was meeting her needs as “mum was keeping (Z) at home”.

Failure to provide funding for a gym membership

52. I asked the Council to provide its comments on Ms X’s additional complaint that it failed to provide funding for a gym membership for Z that it said it would. Ms X said she had requested this to help Z manage her anxiety.
53. The Council said it had no record of Ms X making a request for a personal budget for this purpose prior to her response to the draft amended EHC Plan in November 2021.
54. The Council said it did not agree to this request as it can only agree a personal budget where it is needed to meet a specific provision within the EHC Plan. It said no such need was identified in this case.

My findings

Delay in consulting provisions for Z

55. Between the end of May 2021 and the beginning of the September 2021 school term, the Council consulted only three provisions for Z and requested that School A consult a vocational course on its behalf. There was then a period of drift, as the Council did not take any further steps to find Z an education placement until 21 September 2021.
56. The Council was aware from June 2021 that Ms X and Z had rejected the offer of the temporary education package offered by School A. It should have either worked more with School A to try and make the temporary package more suitable for Z, or consulted with more placements than it did, once it became aware of this.
57. The Council should also have been aware that the EHC Plan was due to be finalised by the end of July 2021. Therefore, if no placement had been found by then, the Council should have made decisions more promptly about next steps, such as taking Z off-roll at School A so she could be referred for interim tutoring.
58. The Council’s failure to make sufficient and timely efforts to find a suitable provision for a child out of education is fault. As a result, Z missed four term time months of education and there is uncertainty as to whether Z could have sat her GCSEs as scheduled were it not for the fault.

Failure to provide suitable education

59. The Council said it could not comment on whether the provision Z received between May 2021 and November 2021 was suitable because Ms X had kept Z at home instead of accessing the package offered by School A.
60. Both Ms X and School A said the school could not meet Z’s needs from May 2021 onwards. The Council was aware from this time that Z was not accessing any education at all.
61. The Section 19 duty to arrange suitable education for pupils out of education was with the Council, not Ms X or School A. If the Council believed Ms X to be keeping Z at home unlawfully, it should have challenged this but it did not.
62. The Council was at fault for failing to have regard to the suitability of the education Z was accessing between May 2021 and November 2021. This fault contributed further to the injustice identified in paragraph 58.
63. The Ombudsman previously investigated a complaint about this Council in December 2021 regarding failure to arrange suitable alternative education. We found fault and the Council agreed to provide training for its staff on the Council’s duty to arrange alternative education once it becomes aware a child is not receiving any. This training was carried out in January 2022.
64. As the faults in this case occurred before this renewed training was carried out, I have not recommended that the training be carried out again in response to the faults identified here.
65. Instead, I have recommended that this case be used to again remind staff of the importance of adhering to the Section 19 duty imposed upon the Council once it becomes aware that a child is not accessing any education.

Delay in finalising Z’s EHC Plan

66. The Council was just over seventeen weeks late in finalising Z’s EHC Plan. This was fault which led to time and trouble for Ms X in chasing this through the Council’s complaints process. This also frustrated and delayed Ms X’s right to appeal to the SEND Tribunal about Z’s educational provision.

Personal budget for gym membership

67. The Council was not at fault when it decided not to provide a personal budget for a gym membership for Z.

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Agreed action

68. Within one month of the date of the final decision, the Council has agreed to:
• apologise to Ms X for the delays which caused Z to be out of any education for four term-time months;
• pay Ms X £1600 to recognise the four term time months of education Z did not receive during an important year for her GCSEs and at a time when she was struggling with anxiety. This also reflects the uncertainty caused as to whether Z would have been able to sit her GCSEs as planned were it not for the fault. This money should be used however Ms X sees fit to benefit Z’s mental health and or educational needs; and
• pay Ms X £150 in recognition of the time and trouble she was put to in chasing up her daughter’s significantly delayed final amended EHC Plan.
69. Within three months of the date of the final decision, the Council has agreed to provide evidence that it has:
• reminded staff of the Council’s Section 19 duty to 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 and whether or not they are on the roll of a school;
• reminded staff of the importance of removing children, if appropriate, from a school’s roll so it can refer them to temporary educational services;
• reminded staff of the need for timely consultations with educational providers, particularly when the child is, or there is a risk of, the child being out of education; and
• investigated the reasons why Z’s final EHC Plan was issued more than seventeen weeks late and produced an action plan to outline how it can prevent this kind of delay occurring in future.

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Final decision

70. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to pay a financial remedy and carry out service improvements.

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Investigator's decision on behalf of the Ombudsman