• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• My findings
• Analysis
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complains the Council issued multiple Education, Health and Care plans that named unsuitable placements and provisions, which meant her child was unable to attend education. The Ombudsman has found fault with the Council for its delay during the Education, Health and Care plan process, and for not communicating its decisions to Mrs X, however this did not cause significant injustice to Mrs X. We do not find fault with the Council for how it considered its alternative provision duty. The Council has agreed to apologise to Mrs X and carry out service improvements.

The complaint

1. The complainant, who I refer to as Mrs X, is making a complaint on behalf of her son (Child Y) who has special educational needs (SEN). The Council maintains an Education, Health and Care Plan (EHCP) for Child Y which sets out the support he must by law receive from the Council by to meet his educational needs. Mrs X alleges the following:
   • 1. The Council issued two final EHCPs for Child Y in 2020 and 2023. She says neither of these are fit for purpose as they do not meet needs.
     2. The Council delayed in issuing the latest amended final EHCP following an annual review in October 2021 of the earlier EHCP.
     3. The named school placement identified in both of Child Y’s ECHPs have been unsuitable. Mrs X says this meant Child Y has been unable to attend and has therefore not been provided with an education. Mrs X also says the Council has failed to provide alternative education provision to Child Y.
     4. The Council’s complaint handling has been poor, as it failed to appropriately escalate her complaint to Stage Two of its complaints policy and procedure.
2. Mrs X says Child Y is not receiving the necessary support and educational provision he is entitled to. She says this impacting on his wellbeing and educational development. She also feels ignored by the Council when seeking to address these issues which she says is cause of significant uncertainty, anxiety and stress. As a desired outcome, Mrs X wants the Council to provide her son education and identify a suitable placement.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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 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).
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).
9. 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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What I have and have not investigated

10. Some parts of Mrs X’s complaint date back to 2020. I have not exercised discretion to consider these parts of Mrs X’s complaint. This because these parts of Mrs X’s complaint are late. I have seen no good reason Mrs X could not bring these parts of the complaint to us sooner.
11. I have exercised discretion to consider issues from October 2021, as this is when Child Y was being recorded as medically absent from school and the Council reviewed the EHCP.

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How I considered this complaint

12. I have considered Mrs X’s complaint and information she provided. I have also considered information from the Council.
13. I have considered applicable legislation, guidance, and policy.
14. Mrs X provided new information after the issuing of my decision previously. I have therefore considered this new information and also made further enquiries of the Council.
15. I considered any comments that were received in response to my revised draft decision.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

16. 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.”

17. 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)
18. 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 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.
19. ‘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 it is not in the child’s best interests because of their physical or mental health.

Education and Health Care Plan

20. 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).
21. 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.
22. 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.
23. 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

24. 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”.

25. 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.
26. 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.

What happened

27. Child Y has an EHCP maintained by the Council. The Council first issued an EHCP in August 2020 and November 2020. The Council informed Mrs X of her rights to appeal to the SEND Tribunal if she disagreed with its contents, including the placement identified.
28. In October 2021, the Council held an annual review meeting of Child Y’s EHCP. The Council decided that the named placement was able to meet Child Y’s needs, though noted that Mrs X disagreed with this.
29. In November 2021, the Council says a letter was sent to Mrs X to tell her that amendments would be made to Child Y’s EHCP. However, the Council did not outline what amendments it proposed to make.
30. In February 2022, the Council issued an amendment notice following the annual review meeting. The decision was to amend the EHCP.
31. In March 2022, the Council agreed to another EHC needs assessment of Child Y’s needs as Mrs X disagreed with the proposed amendments to the EHCP.
32. In August 2022, the Council issued a draft amended EHCP. This was made following the reassessment process and information received from an eeducational psychologist, as well as that about Child Y’s education, health and social care needs. The same month, the Council sent Mrs X a draft EHCP and sought her feedback. The Council says Mrs X did not provide a response.
33. In September 2022, Mrs X responded to the Council’s draft EHCP with proposed amendments. She also expressed that she did not consider the educational placement proposed in the draft EHCP could meet Child Y’s needs.
34. In March 2023, the Council issued another amended final EHCP which named the same educational placement for him to attend. The placement later told the Council there had not been any engagement from Mrs X about Child Y attending, but that it felt it could meet Child Y’s needs.
35. In April 2023, the named placement gave notice to the Council to end the placement. The Council issued another amended final EHCP. This set out that Child Y would attend a specialist educational setting going forward. However, the EHCP did not specify the name of this setting or nature of the education to be provided. The Council did however tell Mrs X it was searching for specialist placement.
36. In the meantime, the Council has sought to make arrangements for Child Y to receive home tuition. The Council’s records show Mrs X met with the proposed tutor for an initial discussion in June 2023 and tuition began shortly after.

Complaint handling

37. Mrs X submitted her first complaint on 8th December 2021. The Council issued its response on 22nd December 2021. It told Mrs X that if she remained unhappy, she should contact the Council, but did not give a timeframe for her to do this by.
38. Mrs X submitted her next complaint on 3rd February 2022. In this complaint she asked to escalate her previous complaint to stage two. The Council responded to Mrs X’s complaint and said as she had not asked to escalate her complaint within 28 days, it would consider her complaint at stage one.

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Analysis

The EHCP’s ability to meet need

39. I acknowledge Mrs X has disagreed with each of the EHCP’s issued by the Council for various reasons. These include disagreements with the educational placement identified by the Council for Child Y to attend and the assessment of his needs. However, the disagreements about the contents of an EHCP issued by the Council carries a right of appeal to the SEND Tribunal.
40. Part of Mrs X’s complaint is the School and the provision in the EHCP was unsuitable for Child Y. As previously set out, Mrs X had appeal rights to tribunal if she felt the School should not have been named in the EHCP.
41. As part of Mrs X’s complaint is challenging the suitability of the placement and resulting provision, this is closely linked to her appeal rights to tribunal. It would be reasonable for Mrs X to use her appeal rights at tribunal and I am therefore not exercising discretion to consider this part of the complaint.

Alternative provision October 2021 – April 2023

42. Part of Mrs X’s complaint is that Child Y could not reasonably access the provision in the EHCP, which the named placement was offering. This was because Child Y had medical needs preventing them from accessing the placement. Mrs X says the Council agreed to find alternative provision for Child Y as they could not access the provision or placement. Mrs X says as the Council failed to do this, Child Y was without education between September 2021 to April 2023.
43. The Council previously told me that it had several meetings with the placement who confirmed it was able to meet Child Y’s needs. It was therefore satisfied the placement was available and accessible.
44. I also asked the Council to explain how it considered whether it had a duty to find alternative provision, given that Child Y was out of school due to medical reasons.
45. In response to my further enquiries, the Council has showed the placement had made available a bespoke package tailored to Child’s needs. This package was put together with a view to reintegrate Child Y back into school, where they would be able to access the provision in the EHCP. The proposed package included online lessons, home visits, telephone calls and work to be sent home. The offer from the placement was similar to what the Council could offer if it was arranging education under its Section 19 duty. Because of the bespoke nature of the provision offered by the placement named in Child Y’s EHCP, the Council was justified in deciding it was not necessary to look for alternative provision for Child Y. I am satisfied with the Council’s explanation as to how it considered whether it had an alternative provision duty.
46. However, Mrs X rejected this support as she believed it did not meet Child Y’s needs and ultimately wanted another placement to be named in the EHCP. I appreciate Mrs X says the Council told her and the school it would source other options. I agree the emails between the Council and Mrs X are unclear in whether the officer was referring to the bespoke package or further alternatives. However, any additional options explored by the Council would be above and beyond its duties, and not a recognition that it had an alternative provision duty.
47. If the Council had decided it did not have an alternative provision duty, it should have told Mrs X and the School of this to avoid confusion. This was fault by the Council, however it caused limited injustice to Mrs X as on balance, she disagreed with the support and it is unlikely Child Y would have engaged with the bespoke package.
48. In response to my revised draft decision, Mrs X disputes the bespoke package was offered and accessible. She says the Council has provided misleading information. I am satisfied the Council agreed a bespoke package with the School, and checked with the school that it was trying to deliver this. The school told the Council that Mrs X refused to engage with the support being offered. If Mrs X believes the information provided from the School is wrong, then she would need to complain to the School, as the Ombudsman cannot consider what happens within a school. I am satisfied the Council decided the bespoke package was available and accessible based on the information it had.
49. I find no fault in the Councils actions in not arranging alternative provision to Child Y before April 2023. This was because the Council had ensured the educational placement and provision in Child Y’s EHCP was available and accessible. The bespoke package of support and education offered by the placement named in Child Y’s EHCP was equivalent to what the Council could have offered under its Section 19 duty.

Alternative provision from April 2023

50. The Council has said from September 2021 until April 2023, the Council and School A were satisfied that it could meet Child Y’s needs, and therefore it was of the view suitable education was available and accessible to them.
51. School A took Child Y off its school role in April 2023 when it told the Council that Child Y had not attended, and it could no longer continue to offer education if it was not going to be engaged with.
52. From this point, the Council had a duty to find Child Y alternative provision.
53. The Council arranged for the tuition service to deliver part time education to Child Y from June 2023 tailored to their needs.
54. The Council contacted a tuition service to arrange alternative provision. It was reasonable for the Council to contact this provision as it had previously supported Child Y. The first meeting between Mrs X and the tuition service was on 9th June, with the provision starting two weeks later. I do not find fault with the Council for how it implemented alternative provision from April 2023. It has been able to show it took timely action to ensure Child Y had access to provision.

Delay in the EHCP process

55. In response to our enquiries, the Council accepted there had been delay in the process of issuing an EHCP on several occasions, including sending its notices to amend and the draft EHCP.
56. The Council told me it that it accepts it delayed in issuing the EHCP and says this was due to Child Y’s assigned caseworker leaving and another being allocated to his case. It apologises that this delayed Mrs X’s ability to appeal the EHCP to the SEND Tribunal.
57. The delays to the EHCP process were fault by the Council, which it has recognised. However, there is limited injustice to Mrs X and Child Y, as the delays in the EHCP did not result in change of placement or provision that Child Y later accessed. Child Y remained not attending placement and therefore, even if the EHCP had been issued within statutory timeframes, on balance I am satisfied that Child Y would still have not attended.
58. There was fault by the Council in delaying the EHCP process, but this has not caused significant injustice to Mrs X or Child Y.

Complaint handling

59. Part of Mrs X’s complaint is the Council did not properly consider her request to escalate her complaint to stage two of the complaints process.
60. The Councils complaints process says that complainants can request to escalate their complaint to stage two within 28 days the stage one response. However, this timeframe was not referred to or signposted to during the complaint process.
61. The Council could have stated the timeframe in its complaint response, but failure to do so was not necessarily fault, as it was available in the complaints policy, which the Council provided Mrs X with a copy of. Mrs X was not caused injustice because of the Council not telling her the timeframe to complain as neither the Council or the Ombudsman has been able to identify any fault causing injustice when investigating the complaint.

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Agreed action

62. Within four weeks the Council has agreed to

• Write to Mrs X and apologise for the delay in the EHCP process, and for failing to tell her about its decision about alternative provision.

63. Within 12 weeks the Council should

• Review how it will ensure it is recording and communicating decisions about alternative provision.

64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I find fault with the Council for its delay in the EHCP process, and for failing to communicate its decisions to Mrs X, however this caused limited injustice to Mrs X. I find no fault with the Council in its consideration of alternative provision.

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Investigator's decision on behalf of the Ombudsman

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