Summary: Ms Z is making a complaint for her son (Child X) who has special educational needs. Ms Z says the Council has delayed in carrying out an annual review of Child X’s Education and Health Care Plan (EHCP). She adds the Council has, in turn, delayed identifying a school for Child X who has suffered a loss of suitable education as a result. We found the Council delayed in issuing an amended EHCP with a suitable school following the annual review. The Council also failed to provide alternative education for Child X until he could attend a school which met his needs. Both Ms Z and Child X suffered an injustice due to the failings and the Council has agreed to our recommendations to put this right.

The complaint

1. The complainant, who I refer to Ms Z, is making a complaint for her son (Child X) who has special educational needs (SEN). The Council puts an Education and Health Care Plan (EHCP) in place for Child X which outlines the educational support he should by law receive, as well as the educational placement he should attend. Mrs Z alleges the following:
1. The Council has delayed in undertaking an EHCP annual review process.
2. The Council failed to put in place a suitable school for Child X which could meet his needs since the annual review of his EHCP in February 2022.
3. The Council failed to support Child X while out of education by providing alternative home provision.
4. The Council has failed to adequately communicate with her and has been unhelpful in addressing the problems.
2. In summary, Ms Z says Child X has not been receiving the necessary support and education he should receive. She says this has impacted on his well-being and educational development. She also feels ignored by the Council when trying to address the issues. Ms Z explains this has been a cause of significant confusion, anxiety and stress. To put this right, Ms Z wants the Council to carry out Child X’s transfer to his new school without any further delay.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. The courts have settled that if someone could appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter closely linked to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP, we cannot remedy a lack of education after the date the right of appeal was engaged. This is the case if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (LGO) [2014] EWCA Civ 1407).

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How I considered this complaint

8. I have read Ms Z’s complaints to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also considered applicable legislation, guidance and policy. I provided the complainant and Council with a confidential draft of my decision and invited their comments. I considered all the comments received before I made a final decision.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

9. The Council has a legal duty to arrange and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996 (s19 duty). This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”

10. The Council has a duty to secure the named special educational provision in an EHCP for the child or young person (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the Mr K and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, it remains responsible.
11. ‘Ensuring a good education for children who cannot attend school because of health needs’ (January 2013, amended May 2013) is guidance issued by the Department for Education. While there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time. Further, provision need not be full-time if unless it is not in the child’s best interests because of their physical or mental health.
12. Alternative Provision Guidance (2013) is also statutory guidance councils must follow when making alternative education arrangements. It says that provision should start as quickly as possible and enable pupils to achieve on a par with mainstream children. Although there is a clear duty on councils to make alternative educational provision, they may decide a child cannot cope with full-time provision, especially where the reason is medical. In such circumstances, there should be a clear professional opinion to support this. Full-time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. The law also allows councils to view one-to-one provision as worth more than provision delivered to groups. So a child might receive three hours per day of tuition instead of spending five hours per day at a group-based placement.

Education and Health Care Plan

13. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
14. Councils do not need to provide exactly what parents ask for, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide suitable alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
15. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision named in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
16. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
17. The SEND Tribunal is responsible for handling appeals against local authority decisions about SEN. This includes a disagreement about what placement a council identifies as suitable for a child or young person to attend.

Annual EHCP reviews

18. The procedure for reviewing and amending EHCP is set out in legislation and government guidance. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHCP. The Code says at 9.169:

“The first review must be held within 12 months of the date when the EHCP was issued. It must then be reviewed within 12 months of any previous review. The local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting, and within 12 months of the date of issue of the EHC plan or previous review”.

19. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. Where a council proposes to amend an EHCP, it must send the child’s parent or the young person a copy of the existing (non-amended) EHCP. It must also sent an accompanying notice providing details of the proposed amendments. This should include copies of any evidence to support the proposed changes within four weeks of the annual review meeting. Following comments from the child’s parent, the council must issue the amended EHCP as soon as practicable, and within eight weeks of the date it sent the EHCP and proposed amendments.
20. 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 EHCP. The right of appeal is only engaged when the final amended EHCP is issued.

Chronology of events

21. The Council has maintained an EHCP for Child X since 2015.
22. In February 2020, the Council issued an amended final EHCP (v.4) for Child X. This made provision for him to attend a specialist unit (School A) for children with SEN. The EHCP also outlined an educational placement (School B) for Child X to transition to for his secondary education, which he did in September 2020.
23. In February 2022, the Council held an annual review of Child X’s EHCP (v.4). At the review, Ms Z asked for a change of placement for Child X as she felt School B was not suitable for his needs. The Council said it would consult with other placements, but accepts it did not do so at this point. The Council’s conclusion of the annual review was that School B remained suitable.
24. In March 2022, Ms Z expressed her preference for Child X to attend an alternative secondary school (School C) she felt more suited to his needs. However, the Council accepts this was not actioned and it did not consult with School C about if it would be able to meet Child X’s needs.
25. In May 2022, Ms Z made a Stage One complaint to the Council. The Council responded apologising for the delay in issuing an amended EHCP. It said this was due to staffing issues and the amended EHCP would be sent shortly.
26. In July 2022, Ms Z made a Stage Two complaint. She explained that Child X would no longer attend School B. She said this was because School B was not suitable for Child X’s needs and his attendance there was badly impacting his health and well-being. The Council then began to consult other placements, as it had undertaken to do during the latest annual review.
27. From August 2022, the Council consulted School C as Ms Z’s preferred educational placement. In response to the consultation, School C said it could not meet Child X’s complex needs.
28. In September 2022, the Council offered to provide home tuition for Child X until a new educational setting was identified. However, the Council did not action this and Child X remained at home and out of school.
29. In October 2022, the Council issued an amended final EHCP (v.5) for Child X. The Council named School C for Child X to attend. It decided that with the right support assigned within the EHCP, School C could meet Child X’’s needs and so there were no grounds to deny Ms Z’s parental preference. The Council directed School C to take Child X, but it continued to refuse.
30. In December 2022, the Council issued an amended final EHCP (v.6). This named School C for Child X to attend, though with increased funding and support hours.
31. In early February 2023, Child X began to attend School C.

My assessment

Delay in issuing an amended EHCP

32. The Council’s decision whether to amend the EHCP must be made within 4 weeks of the annual review meeting. The Council did not confirm its decision to amend Child X’s EHCP (v.4) until 26 weeks after this event. It accepts there has been a delay of 22 weeks, over the statutory timescale, from the annual review meeting. This was fault by the Council.

Suitable named placement

33. It is Ms Z’s position that School B was not a suitable educational placement for Child X’s needs. This is why she decided to stop Child X attending. It is Ms Z’s position the Council’s delay in completing the annual review in turn delayed Child X being able to attend School C which was more suitable. The Council accept a lack of case oversight in consulting School C which was Ms Z’s preferred choice. This was fault. The Council eventually decided there was no good reason to deny Ms Z’s preferred choice. It also agreed to provide Child X alternative education provision while he was out of education and until a placement at School C being finalised. In my view, the fault identified did delay School C being named as a suitable placement for him to attend. I must therefore consider whether Child X has suffered a loss of education as a result.

Duty to provide alternative education

34. Importantly, Ms Z had a right of appeal against the EHCPs the Council issued in October 2022 (v.5) and December 2022 (v.6) which named School C. We normally cannot remedy a loss of education which arises due to a dispute in the named EHCP placement as this can reasonably be appealed to the SEND Tribunal. However, Ms Z was satisfied with the contents of these EHCPs. It was School C which disputed being named as a placement by the Council and it was therefore refusing to accept Child X. It is the Council’s legal duty to secure the provision identified in the EHCP. This includes the placement it identifies and names in the EHCP. For reasons outside Ms Z’s control, the identified provision was not being met. It would not be reasonable to expect Ms Z to appeal.
35. The Council say Child X remained on the roll at School B and it was available for him to attend until he could attend School C. The Council do not agree that Child X has been out of education due to a lack of a suitable placement. To assess whether Child X has suffered a loss of education, this requires a finding that Child X could not attend School B because of his health. This would trigger the Council’s legal duty to provide alternative education provision. The duty however does not apply simply because a parent refuses to send a child to the educational placement. Where education is offered, and has been “reasonably available and accessible” to the child, the duty does not automatically apply. The Council’s view is that School B could meet Child X’s needs. I have considered this was also the view of School B which routinely contacted Ms Z to get Child X to attend.
36. I cannot infer that School B was unsuitable because the Council agreed to name School C in Child X’s EHCP. This was based on Ms Z’s parental preference as opposed to a reasoned view by the Council that School B could not meet needs. I have not, however, seen any assessment by the Council to satisfy themselves about whether Child X’s absence was because of medical reasons. Specifically, Ms Z told the Council that Child X could not attend due to the impact on his health. The available evidence does not show the Council considering this point to inform whether its section 19 duty applied. The Council did however agree to provide alternative education provision for Child X in the form of home tuition from late September 2022. The Council accepts it did not action this and so I find fault.
37. Because the Council did not consider the reasons Child X was out of education and its agreement to provide home tuition, I consider, on balance, its section 19 duty applied. This finding is consistent with the Council’s position that irrespective of whether a place was still available for Child X, its lack of oversight has resulted in him missing a significant period of education. My finding is the Council owed a duty to provide alternative education from September 2022 to February 2023 (when Child X began to attend to School C). In reaching that view, I have considered that Child X stopped attending School B at the end of the 2021/22 academic year. Further, the Council is permitted some time to put in place alternative arrangements, regardless of whether it failed to do so.

Injustice and loss of education

38. The Council said it intends to apologise for the faults found and offer Ms Z a time and trouble payment of £250, plus a delay and distress payment of £250. On the issues of delay and a lack of case oversight, I consider this is suitable to remedy the injustice suffered by Ms Z. The Council has also agreed to repay costs for some or all the tuition arranged by Ms Z since the beginning of the 2022/23 academic term. I welcome the Council’s stance. However, the injustice to Child X is not to be measured only by whether Ms Z suffered financial loss by putting in place home tuition herself. Rather, it is whether Child X suffered a loss of education because of the fault.
39. The fault identified has seriously impacted Child X’s educational development, as well as his well-being due to being isolated at home. Our remedies guidance outlines that where no education is provided at all, we would normally recommend £600 per month to remedy a loss of education. There were three weeks of academic breaks during the time Child X was out of education. He therefore suffered a total loss of education for 19 weeks. This leads to a financial remedy of £2,850 to put right the loss of education suffered. I have considered whether School B’s offer to provide Child X home packs for him to complete should amount to some education being provided to him. However, there is no evidence the Council considered whether this would be suitable alternative provision. Further, the Council’s offer of home tuition suggests to me that homework packs without a tutor or teacher would not have been suitable to need.

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Agreed action

40. To remedy the fault and injustice identified in this statement, the Council will perform the following action within one month of this final decision:
1. Provide Ms Z with a written apology which addresses each area of fault and injustice identified in this statement.
2. Pay Ms Z £2,850 to remedy a loss of education suffered by Child X for a period of 19 weeks. This amount is to benefit the education of Child X, as well as to reimburse any privately paid tuition costs Ms Z has incurred.
3. Pay Ms Z £500 in respect of her time, trouble and distress.
41. Within three months of a final decision, the Council will also:
1. At a senior level, the Council will undertake a review of Ms Z’s complaint. The review will focus on why Ms Z’s reasons for Child X not attending were explored further to understand whether its section 19 duty applied. The purpose of the review is for the Council to identify and implement any measures which can prevent an injustice to other service users in the future.
42. The Council will provide evidence it has complied with the above actions.

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Final decision

43. The complaint is upheld. The Council delayed in issuing an amended EHCP with a suitable school following the annual review due to a lack of case oversight. It also failed to provide alternative education for Child X while he was out of education and until him being able to attend a school which met his needs. Both Ms Z and Child X suffered an injustice due to the failings identified and we have recommended the Council take action to remedy this.

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Investigator's decision on behalf of the Ombudsman