Summary: Ms X complained the Council failed to provide her daughter with suitable education since September 2021. Ms X also complained about delays in issuing Education Health Care (EHC) Plans and the content of the EHC Plans. We found fault with the Council failing to provide suitable education for Ms X’s daughter for nearly a full academic year. We also found fault with the Council delays in production of EHC Plans totalling 19 months. The Council agreed to apologise to Ms X and pay her £500 for the delays in production of the EHC Plans. The Council also agreed to pay Ms X £5,000 for her daughter’s missed education.

The complaint

1. Ms X complained the Council failed to provide her daughter with suitable education since September 2021.
2. Ms X also complained the Council repeatedly delayed in issuing new Education Health Care (EHC) Plans and about the content of these EHC plans.
3. Ms X says because of the Council’s fault, her child has been out of education since September 2021. Ms X says she also needed to leave her long-term job to care for her daughter throughout this time.

Back to top

The Ombudsman’s role and powers

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. 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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. If we are satisfied with a council’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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I have and have not investigated

11. I have not investigated Ms X’s complaint about the content of the EHC Plans. This is because the content of an EHC Plan is appealable to the SEND tribunal. Ms X has had the option available to her to appeal the content of the EHC Plan to the tribunal at any point over the past few years if she had concerns about this. The Ombudsman should not try to displace a tribunal or court when it is the proper body to consider a complaint.

Back to top

How I considered this complaint

12. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

Back to top

What I found

EHC Plans

Rules and regulations

14. 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.
15. Once the Council completes the EHCP 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.
16. 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. 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.
17. 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)
18. 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)
19. 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)
20. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014)
21. 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)
22. 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.
23. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

24. The Council issued an EHC Plan for Ms X’s daughter, Y, in February 2018. The Council completed annual reviews of Y’s needs and proposed an amended EHC Plan on 18 August 2020 resulting in a final EHC Plan on 13 January 2021.
25. Following issuing of the final EHC Plan on 13 January 2021, the Council completed annual review meetings of Y’s needs on 16 March 2021 and 11 October 2021.
26. The Council issued a draft EHC Plan considering the 16 March 2021 annual review meeting on 21 March 2022.
27. The Council held a further annual review meeting on 23 March 2022. The Council produced a draft EHC Plan following this meeting on 14 April 2022 before issuing the final EHC Plan on 19 August 2022.
28. The Council held the latest annual review on 13 December 2022. Following this annual review the Council issued a draft EHC Plan on 15 March 2023 and final EHC Plan on 23 October 2023.

Analysis

29. I have not investigated any matters before 13 January 2021. This is because Ms X only brought her complaint to us in July 2022 about matters since September 2021. The Ombudsman should only investigate matters within 12 months of a complaint being brought to our attention unless there is good reason to do otherwise.
30. I have applied my discretion to consider this complaint back to 13 January 2021. This is because this is the point the Council produced the final EHC Plan leading into the Ms X’s complaint.
31. The regulations outline a council must tell a parent of its decision to amend an EHC Plan within four weeks of the annual review meeting. Issuing of this decision would complete the annual review process which the Council should complete within 12 months of completion of the last annual review.
32. The Council completed Y’s previous annual review on 18 August 2020, leading into Y’s final EHC Plan of 13 January 2021. By this date, the Council had held the annual review meeting and issued the amendment notice.
33. The Council completed the next annual review meeting on 16 March 2021 and decided it was going to amend Y’s EHC Plan. The Council issued this notification within 12 months of 18 August 2020 and I do not find fault.
34. While the Council completed the annual review within the statutory timescales, it delayed in producing the final EHC Plan following this meeting. In fact, the Council failed to issue a final EHC Plan following the annual review meetings on both 16 March 2021 and 11 October 2021. This was fault.
35. The Council only issued Y’s next final EHC Plan on 19 August 2022, following the annual review meeting held on 23 March 2022.
36. As noted in paragraph 22, the courts have outlined an expectation the Council produces a final EHC Plan within 12 weeks of an annual review meeting. Given the Council held Y’s annual review meeting on 16 March 2021, the Council should have produced the final EHC Plan by 14 June 2021. The Council’s failure to produce the next final EHC Plan until 19 August 2022 was a delay of 14 months. This was fault.
37. The Council held the next annual review meeting on 13 December 2022 but only issued the final EHC Plan on 23 October 2023. The Council repeated the same fault in delaying production of the final EHC Plan following an annual review meeting. The Council should have produced the final EHC Plan by 10 March 2023. The Council delayed by a further seven and a half months in finalising Y’s EHC Plan.
38. Since January 2021, the Council’s has delayed by 19 and a half months in producing final EHC Plans for Y following annual review meetings. Delays in producing final EHC Plans for Y have meant that Y’s EHC Plan has not been updated with the most up-to-date support Y needs. This fault also caused Ms X injustice because it caused avoidable and unnecessary distress, inconvenience, and frustration.

Alternative Provision of education for children

Rules and regulations

39. 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))
40. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
41. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
42. The education provided by a council must be full-time unless a 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)
43. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
44. 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 (with the exception of 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 in coming to decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
45. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
46. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
47. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
48. 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

49. In July 2021, Ms X told the Council she wanted to withdraw Y from school so she could attend a different school. The Council responded to advise it considered Y’s school a suitable educational placement for Y with the support detailed in Y’s EHC Plan.
50. On 14 October 2021, Y refused to attend school resulting in an immediate stop to her attendance. The school’s head-teacher told the Council that Y would not be attending school moving forwards as this now presented a safeguarding risk to both Y and the school. The school told the Council it would provide a home learning package until the Council could find a more suitable school placement.
51. The school provided a home learning package to Y on one occasion.
52. In January 2022, the Council arranged for alternative provision of education for Y to begin on 10 February 2022 with Provider 1. Provider 1 started to provide 15 hours of education to Y each week on 10 February 2022.
53. On 2 March 2022, Ms X expressed concerns about the suitability of the education Provider 1 was giving to Y. Ms X said Provider 1 did not have access to Y’s EHC Plan and was not capable of supporting a child with Y’s SEN needs.
54. Ms X complained to the Council on 9 May 2022. Ms X said Y had been out of education since September 2021 and the alternative provision of education the Council put in place was not suitable for Y.
55. The Council issued its complaint response on 23 May 2022. The Council said it partially upheld Ms X’s complaint about the suitability of the alternative provision on offer. The Council said it had been searching for a school placement for Y since her attendance at her school broke down but it has not been able to find a suitable school setting so far.
56. Ms X stopped the alternative provision of education through Provider 1 on 13 June 2022.
57. On 26 September 2022, the Council put in place alternative provision of education for Y through Provider 2.
58. Ms X raised a second complaint with the Council in October 2022.
59. The Council responded to Ms X’s complaint on 7 November 2022. The Council said it was continuing to look for an alternative placement of education for Y but had been unable to find a school.
60. Ms X raised a third complaint with he Council in February 2023 through her MP.
61. The Council provided a complaint response on 31 March 2023. The Council said it had made many consultations to find Y a school placement but had not found suitable placement. The Council said it first provided Y with alternative provision through Provider 1 but has since started to provider this through Provider 2.
62. Ms X sought escalation of her complaint to Stage 2 of the Council’s complaint provides on 16 May 2023. Ms X said Y’s previous school could not meet Y’s needs and expressed concerns about the educational provision put in place by Provider 1 as it was also not able to meet her needs.
63. The Council issued its Stage 2 complaint response on 19 June 2023. The Council said it is now providing suitable alternative provision through Provider 2 but was continuing to try to find a suitable long-term educational setting for Y.
64. In September 2023, Y started to attend a school on a full-time basis.

Analysis

65. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from July 2021 until October 2021 or why the school only provided a home learning package to Y on one occasion following her stop in attendance.
66. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
67. The Council first became aware of Y’s absence from school on 14 October 2021. Given the school told the Council that Y’s attendance at school was a safeguarding risk to both her and the school, it was evident to the Council that Y would be absent from school for more than 15 days.
68. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. This meant the Council was responsible for Y’s education from 22 October 2021.
69. The Ombudsman’s recommendations for councils say the Council should have decided whether to require Y to attend school or provide Y with suitable alternative provision. At the least, the Council should have adopted a “strategic and planned approach” to reintegrate Y into mainstream education. While the Council says it discussed the matter with the school to encourage it to make arrangements for Y’s access to education, this was not a “strategic and planned approach”. The Ombudsman’s focus report also highlights a council should not assume a school will shoulder the entire responsibility.
70. The Council failed to take any suitable steps in response to Y’s absence from school until January 2022 when it looked to put in place education through Provider 1. This was fault. This fault by the Council led to Y missing one term’s worth of education without any provision.
71. From 10 February 2022 to 13 June 2022, the Council put in place alternative provision through Provider 1. While the Council put in place alternative provision of education during this time, it failed to ensure this educational provision was suitable for Y’s needs. Provider 1 could not provide education that met Y’s special educational needs and, therefore, was not suitable education as set out by the Education Act. This was fault.
72. Ms X made the Council aware of the unsuitability of Provider 1 as early as 2 March 2022. By April 2022 the Council began discussions with Ms X about providing education through Provider 2. The Council was aware the education provided through Provider 1 was not suitable but delayed in correcting this situation. This was fault. This fault by the Council led to Y missing a further term’s worth of education with only unsuitable educational provision in place.
73. Ms X cancelled the education with Provider 1 for Y on 13 June 2022. Ms X cancelled Provider 1 because the educational provision was not suitable. A stance supported by the Council in its complaint response of May 2022. The Council was responsible for providing suitable education to Y, a responsibility which still existed following Ms X cancelling Provider 1.
74. The Council’s Section 19 duty effectively restarted on 13 June 2022 meaning the Council had a further six days to provide education to Y, from 21 June 2022. The Council failed to provide any education to Y from 21 June 2022 until 26 September 2022. A period amounting to a further two months of missed education for Y without any educational provision. This was fault.
75. From 26 September 2022 until the end of the academic year, the Council put in place alternative provision of education through Provider 2. The Council tailored the education through Provider 2 to meet Y’s needs. The Council first provided a part-time timetable before building this up in line with Y’s ability to cope. I consider the Council provided suitable alternative provision of education to Y through Provider 2 since 26 September 2022. The Council therefore met its Section 19 duty until it found a full school placement in the 2023 academic year. I do not find fault with the Council for this.
76. 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.
77. Since October 2021, Y has missed one and two thirds of a term of education without any educational provision. Y also missed a full term without only unsuitable educational provision in place. While the Council has put in place suitable alternative provision of education for Y from September 2022, alternative provision cannot replace a full-time education in a school setting. I have considered this as part of my total recommendation for Y’s lost education since October 2021.
78. Given this missed education and the potential impact this had on Y, the Council should pay Ms X £5,000 for the lost education.

Back to top

Agreed action

79. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology and pay Ms X £500 to remedy the injustice caused by the eight-month delay issuing Y’s final amended EHC plan within statutory timeframes. In arriving at this figure, I considered the Ombudsman’s published guidance on remedies. This sets out a range of up to £500 for unnecessary and avoidable distress. I consider a payment of £500 is appropriate and proportionate to the level of injustice caused here and how long the injustice went on for.
• Pay Ms X £5,000 to address the Council’s failure to provide suitable alternative provision of education for Y. Ms X may use this as she sees fit for Y’s educational needs.
80. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

81. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman