Summary: Mr X and Ms Y complained the Council failed to ensure their child D received a suitable alternative education while out of school or meet their special educational needs. There was fault in how the Council reviewed D’s Education Health and Care plan, re-assessed their Education Health and Care needs, and considered its duties to provide suitable alternative education. This meant D missed education, and support for their special educational needs, and caused avoidable distress for D, Mr X, and Ms Y. The Council agreed to apologise, issue an amended final Education Health and Care plan without delay, pay a financial remedy, review relevant procedures, and issue reminders to its staff.

The complaint

1. Mr X and Ms Y complain the Council failed to ensure their child, D, received a suitable education or had their special educational needs (SEN) met from September 2021 onwards. They say the Council failed to:
• properly annually review D’s Education, Health and Care (EHC) plan, and so prevented them from appealing the content of the plan to the First-tier Tribunal for Special Educational Needs and Disability;
• ensure D was provided with suitable alternative education when they were out of school from September 2021 onwards;
• complete a re-assessment of D’s SEN it said it would carry out in response to the family’s 2022 complaint; and
• communicate with Mr X and Ms Y properly or respond in good time about these issues.
2. Because of this Mr X and Ms Y say:
• D missed education and SEN support and had limited opportunity to engage with other children. This caused D anxiety and sleep problems. They also think D is unlikely to be ready to sit their GSCEs when they are 16;
• Mr X had to give up work to look after D which has impacted the family financially; and
• Mr X and Ms Y spent time and trouble chasing the Council.
3. Mr X and Ms Y want the Council to provide financial compensation to D for the education they have missed.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)

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How I considered this complaint

7. I considered:
• information provided by Mr X and Ms Y and discussed the complaint with Mr X;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
8. Mr X, Ms Y, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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.

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What I found

Education Health and Care (EHC) plans

10. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments, reviews, and re-assessments, and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
12. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. We can look at complaints about this where support set out in the EHC plan has not been provided, or where there have been delays in the process.

EHC plan reviews

14. Councils must review EHC Plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186)
15. A council can require a school to convene and hold an annual review meeting on its behalf. (SEND Code paragraphs 6.56 and 9.173)
16. Within four weeks of a review meeting, a council must notify the child’s parent(s)/ guardian(s) of its decision to maintain, amend or discontinue the EHC plan. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
17. Where a council proposes to amend an EHC plan, it should start the process of amendment “without delay”. The law says it must send the child’s parent(s)/guardian(s) 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. (SEND Regulations 2014 Section 22(2), and SEND Code paragraphs 9.176 and 9.194)
18. Following comments from the child’s parent(s)/guardian(s), if a council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parent(s)/guardian(s). (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)

EHC plan re-assessments

19. There may be occasions when not just a review, but a re-assessment of the child’s EHC needs becomes appropriate, particularly when their needs change significantly. Councils must conduct a re-assessment if a child’s family or school requests this. A council may also decide to initiate a re-assessment without a request, if it thinks one is necessary. (SEND Code paragraphs 9.186 and 9.187)
20. Once a council has decided to re-assess, the process for re-assessment will be the same as the process for a first EHC needs assessment. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. However, the Council must aim to complete the process as soon as practicable. (SEND Code paragraphs 9.191 and 9.192)

Appealing the contents of an amended EHC plan

21. 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. Parent(s)/guardian(s) 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 amended EHC plan. The right of appeal is only engaged when the Council issues the final amended plan. (SEND Regulations 2014 section 32)

Alternative educational provision for a child out of school

22. 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. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
23. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
24. The relevant statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs, January 2013’ says Councils should provide education to those out of school as soon as it is clear the child will be away from school for 15 days or more, whether consecutive or cumulative. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
25. 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))
26. The education provided by a 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)
27. 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. (2013 Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
28. DfE non-statutory guidance, “DfE Summary of responsibilities where a mental health issue is affecting attendance February 2023”, says:
1. all children of compulsory school age are entitled to a full-time education. In very exceptional circumstances, where it is in a child’s best interests, a plan to help them attend may involve a temporary part-time timetable to meet their individual needs. Any part-time arrangements should:
1. be designed with the specific barrier to attendance in mind;
2. have a time limit by which the pupil is expected to attend full-time, either at school or at an alternative provision setting; and
3. have formal arrangements in place for regularly reviewing the timetable with the child and their parents/carers.
2. where a child is out of school, the Council should:
1. determine whether alternative provision should be provided under section 19 of the Education Act 1996 where they are likely to miss more than 15 days; and
2. review their EHC plan where required.

The Council’s policy for suitable alternative education

29. The Council has a ‘Section 19 policy’ which sets out how it will meet its duties to provide suitable alternative education when a child is out of school. It says:
• as soon as it is clear a child will be away from school for 15 days or more or is too unwell to access their usual place of education, their home school will make a referral to School B. School B provides short term educational provision, both face-to-face and online, for young people in the Council’s area whose health problems prevent them from attending their home school;
• the referral will be considered by a multi-agency panel which includes a Council representative. The panel will decide whether the case falls under the Council’s section 19 duty, or if the home school should be required to meet the child’s needs with support. It will agree the service needed to meet the child’s individual needs and circumstances;
• children receiving support from School B will have their provision set out in a “co-produced personalised plan, which makes clear the nature of the intervention, the objectives, the expected outcomes and timeline to achieve the objectives”. The plan should also link to other relevant plans the child has to ensure a holistic approach”; and
• the provision from School B will be reviewed regularly, with the family and all professionals concerned, to ensure it continues to be appropriate for the child and is providing suitable education.

What happened

30. The Council issued D with their first EHC plan in February 2020, when they were in their final year at a mainstream primary school. In September 2020, D started Year 7 at a mainstream secondary school.
31. In September 2021, at the start of Year 8, D stopped attending school due to anxiety. Mr X also said D’s special educational needs (SEN) were not being met at the school. D’s most recent EHC plan was the February 2020 plan written when they were in primary school.
32. In December 2021, D’s parents met with D’s school and the Council. The school said it could not meet D’s needs. Everyone at the meeting agreed an EHC plan review, and suitable alternative education, should be arranged. Shortly afterwards, D’s school made a referral to School B for alternative education, as described at paragraph 29. School B sent the referral back to D’s school and said it should carry out the planned EHC plan review before it would offer D a place for alternative education.
33. The EHC plan review took place in February 2022. Those at the review meeting recommended D’s plan should be amended. D’s school then applied again for alternative education from School B.
34. One month after the EHC plan review, the Council issued a decision notice confirming it would amend D’s plan. This did not include details of the proposed amendments. It issued a draft amended plan six weeks later. Mr X and Ms Y provided comments on the draft plan two weeks after this.
35. Around the same time as the Council issued the draft amended plan, School B accepted the referral request D’s school had submitted two months earlier for alternative education. In May 2022, D started to access support from School B, for up to two hours per week. Mr X also arranged for D’s school to fund two hours per week of support from Organisation C, which provides emotional support through online gaming sessions with a mentor.
36. In July 2022, the Council had not issued an amended EHC plan following the February 2020 review. Mr X and Ms Y complained that D’s plan was not up to date, and they were out of school without suitable alternative education. Three days later the Council acknowledged the complaint and said it would issue a further draft EHC plan within ten days.
37. Four weeks later, the Council responded to the complaint. It said instead of issuing a further draft, it had decided to re-assess D’s EHC needs, as described at paragraph 19. It did not give a timescale for this. Mr X and Ms Y escalated the complaint to Stage 2 of the Council’s procedure in late-August 2022.
38. In September 2022, D began their Year 9 school year, but they were still out of school. The support provided by School B gradually increased over this term, and D continued to receive the support from Organisation C. Mr X also arranged for the school to fund part-time support two days per week from Organisation E, which supports children who have become disengaged from mainstream education through work with animals.
39. In late-October 2022, the Council responded to Mr X and Ms Y’s complaint at Stage 2 of its procedure. It said it would complete its re-assessment of D’s EHC needs by late-December 2022. Mr X and Ms Y brought their complaint to the Ombudsman two days after the complaint response.
40. In late-November 2022, the Council attended a meeting with School B and Ms Y to review the suitability of the alternative education provided to D by School B and agree next steps. Those who attended the meeting decided the support provided by School B should be increased.
41. As of April 2023, the Council had not completed its re-assessment of D’s EHC needs and had not issued a draft amended EHC plan. D’s most recent plan was from February 2020.

My findings

EHC plan reviews

42. When D stopped attending school at the start of Year 8, their EHC plan had not been reviewed for over 18 months. The Council accepted it was at fault for not keeping track of when D’s annual review was due and so had missed statutory deadlines. It said it has since set up a reporting system to keep track of annual reviews.
43. However, the Council was also at fault because after its December 2021 meeting with D’s parents and school, when it accepted it should review D’s EHC plan, it continued to delay this and did not meet statutory deadlines.
44. The Council was at fault in how it carried out the review process in 2022 because:
• following the December 2021 meeting it took two months for the review meeting to take place. This took too long, given the statutory requirement to review EHC plans every 12 months and the fact D’s EHC plan was already out of date;
• D’s parents and school asked it to attend the review meeting, but did not receive a response;
• it said the review process was delayed because it needed D to access support from School B first to gain a better understanding of their needs and inform development of the EHC plan. If this was the case, it should have ensured School B considered the referral from D’s school for alternative education sooner, given the required statutory timescales and the fact D’s plan was already out of date. Furthermore, I would have expected the Council to consider whether it should re-assess D’s EHC needs at this point, if it decided it did not have enough information about their needs to progress the review. When it later considered this in July 2022, after Mr X and Ms Y complained, it decided it should carry out a re-assessment. Therefore, on the balance of probabilities, my view is it would have decided to re-assess sooner had it properly considered this earlier;
• the Council took too long to consult schools to be named in the amended EHC plan. It accepted D’s school was not suitable in December 2021. After the February 2022 EHC plan review it told Mr X and Ms Y it would start consulting schools. It did not start to do so until two months after the review, and was still chasing this five months after the review without having made any progress; and
• after the Council issued the draft amended EHC plan in April 2022, D’s parents provided comments but the Council did not respond. D’s parents and school chased the Council several times for updates but the Council did not properly respond or address the queries raised. It did not update D’s parents or school until after the July 2022 Stage 1 complaint.
45. The Council’s failure to properly review D’s EHC plan within statutory timescales, and to consider whether it should re-assess D’s EHC needs sooner, caused delays and distress to D and their parents. It also prevented them from appealing to the SEND Tribunal, as described at paragraph 21. The Council should remedy the injustice caused.

Alternative education while D was out of school

46. A council must arrange suitable alternative education when a child is out of school for 15 days or more, for any reason. D was out of school from September 2021 onwards and was still out of school as of April 2023.
47. The Council was aware D was out of school, and the school could not meet their needs, from December 2021. At this point it agreed D’s school should make a referral to School B for alternative education, as described at paragraph 29. However, I am not satisfied the Council properly assured itself D would receive suitable alternative education, in good time, because:
• the Council said D started receiving support from School B in February 2022. Mr X said this did not begin until May 2022. On the balance of probabilities, although I accept D’s school made referrals to School B in December 2021 and February 2022, I am not satisfied D had any suitable alternative education in place before May 2022. After D’s school made its second referral, there was a two-month delay before a multi-agency panel considered this and decided to offer alternative education from School B. There is no evidence the Council had any knowledge about the support D was receiving from School B until August 2022, when Ms Y mentioned this in an email. It then did not take any steps to assure itself of the suitability of this provision until late-November 2022, after Mr X and Ms Y came to the Ombudsman. The Council said it had oversight of the suitability of provision offered by School B via the multi-agency panel, which kept track of previously approved referrals. However, I am not satisfied, based on the evidence it provided, that the panel allowed it to successfully track previous cases or assure itself of the suitability of provision for individual pupils. There was no evidence suitability was discussed in D’s case before November 2022;
• D also received support from Organisation C from May 2022 onwards, after Mr X arranged for D’s school to fund this. There was no evidence the Council was aware of this or sought information about it until late-November 2022, after the Ombudsman complaint;
• D received support from Organisation E from the start of the 2022/23 school year, after Mr X arranged for D’s school to fund this. Although the Council was involved in discussions with D’s school about the funding for D’s placement at Organisation E, there was no evidence it took any steps to assure itself of the suitability of this provision; and
• in response to Mr X and Ms Y’s complaint, the Council accepted D had not been receiving the SEN support set out in their EHC plan while out of school.
48. I am not satisfied the Council met its duties to ensure D was provided with alternative education or had any oversight of this, until late-November 2022, after the complaint to the Ombudsman. It did not check whether any alternative education was suitable for D’s age, ability and aptitude, or special educational needs as set out in their EHC plan, until this point.
49. The Council’s failure to consider its duties meant D missed a significant period of education, and SEN support. This caused distress to D and their parents. The Council should act to remedy the injustice caused for the period where it was aware D was out of school but did not properly consider its duties, from December 2021 to November 2022. I cannot say, even on the balance of probabilities, whether Council delays in the EHC plan process meant D missed education for a longer period, or could engage with less alternative education while out of school. However, there remains uncertainty about this for D and their family, which has added to their distress. The Council should also remedy this distress.

Response to July 2022 complaint and re-assessment of D’s EHC needs

50. The Council was at fault in how it responded to Mr X and Ms Y’s July 2022 complaint, which I will explain below.
51. In its complaint response, the Council said it had not met statutory timescales in its review of D’s EHC plan because it decided to re-assess their EHC needs instead, so stopped the review process. I do not accept the Council’s explanation about this. The statutory deadline to issue the final amended EHC plan following the review had already passed before the deadline for D’s parents to comment on the April 2022 draft. The Council had already taken too long to issue the draft, and then failed to respond after Mr X and Ms Y commented on the draft. The decision to re-assess D’s needs instead, did not come until much later, in August 2022 when responding to the complaint. Also, as explained earlier in this statement, my view is the Council should have considered whether it should carry out a re-assessment much earlier, and had it done so, would have started this process earlier. My view is the Council failed to accept clear fault in its actions. I consider it failed to be open and accountable in its complaint response, as set out in the Ombudsman’s guidance, ‘Effective Complaint Handling for Local Authorities, October 2020’.
52. The Council said it would complete its re-assessment within 20 weeks of the date it agreed to re-assess D, instead of the required 14 weeks set out in law. The Council accepted this 20-week timescale was wrong and not in line with its statutory duties around EHC needs re-assessments. The Council then did not meet any of the timescales it said it would. It continued to fail to meet statutory timescales and as of April 2023 had still not issued a final amended EHC plan for D, over 36 weeks after it decided to re-assess D.
53. The Council’s failure to be open and accountable in its complaint response, and its continued failure to meet deadlines and issue an amended EHC plan, compounded the distress caused to the family.

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Agreed action

54. As set out in our Guidance on Remedies, where we find fault has resulted in a loss of educational provision, we usually recommend a payment of between £200 and £600 a month to recognise the impact of that loss. In this case I am satisfied the Council was aware D was out of school from December 2021 onwards. From late-November 2022 onwards, I am satisfied the Council had assured itself suitable alternative education was in place for D. In deciding an appropriate financial payment to recognise the impact of D’s missed education, I considered the following:
• during the period I considered, D was in years 8 and 9 of secondary school. As set out in our Guidance on Remedies, we would not usually consider this to be a particularly significant period in a child’s school career, as we would for say, the first year of secondary school;
• the Council accepted that during their time out of school D did not receive the SEN support set out in their latest EHC plan;
• there was no evidence D was provided any education at all from December 2021 to April 2022. However, D would not have been able to engage with full-time education at this time, had it been available to them. I therefore considered how much alternative education D has engaged with since this became available. Based on this, for the period where no alternative education was in place at all, I consider a remedy of £300 for each month to be appropriate; and
• from May 2022 to November 2022, D received some alternative education, arranged by Mr X and D’s school. As above, D would not have been able to engage with full-time education, so I have taken this into account. There was no evidence the Council assured itself the alternative education in place was suitable until late-November 2022, at which point it was decided D could engage with more so provision from School B increased. For this May to November 2022 period, I consider a remedy of £150 for each month to be appropriate.
55. Within one month of our final decision, the Council will:
1. apologise to D and their family for the faults identified and the impact of those faults;
2. issue a final amended EHC plan for D, without delay; and
3. pay the family a total of £2,650 comprising of:
1. £1,650 to recognise the 8 months of education (accounting for school holidays) D missed while they were out of school, from the point the Council was aware in December 2021, until the Council assured itself suitable alternative education was in place in late-November 2022. This is intended for D’s future educational benefit;
2. £800 to recognise the avoidable distress caused to Mr X and Ms Y; and
3. £200 to recognise the avoidable distress caused to D.
56. Within three months of our final decision, the Council will:
1. provide evidence of the steps it has already taken to set up a reporting system to keep track of annual EHC plan reviews;
2. review its procedures for EHC plans and issue reminders to relevant staff to ensure:
1. when reviewing EHC plans it does so without delay, and issues amendment notices and final amended plans within the correct statutory timescales following the review meeting;
2. where it decides it does not have enough information about a child’s needs to progress an EHC plan review, it should consider, without delay, whether it needs to re-assess their EHC needs;
3. when re-assessing EHC needs it issues a final amended plan as soon as is practicable, and within a maximum of 14 weeks from the decision to re-assess; and
4. it keeps families updated, responds to their queries, and follows up on any agreed actions in good time.
3. issue reminders to relevant staff to ensure that when it is aware a child is out of school for any reason, it:
1. meets its duties under Section 19 of the Education Act 1996 to secure them alternative education;
2. ensures the suitability of that alternative education for the child’s age, ability, aptitude, and SEN; and
3. follows its own process for arranging suitable alternative education as set out in its Section 19 policy.
4. issue reminders to relevant staff about the importance of being open and accountable when responding to complaints, as set out in the Ombudsman’s guidance, ‘Effective Complaint Handling for Local Authorities, October 2020’.
57. The Council will provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. There was fault by the Council which caused D to miss education, and support for their special educational needs, and caused avoidable distress for D, Mr X, and Ms Y. The Council agreed to our recommendations to remedy this injustice, review relevant procedures, and issue reminders to its staff.

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Investigator's decision on behalf of the Ombudsman