Summary: Miss X complained the Council did not provide the provision in her son, Y’s Education, Health and Care (EHC) plan when he could not attend school for medical reasons between June 2022 and January 2023. Miss X further complained the Council did not review and amend the EHC plan in line with the regulations which delayed her right to appeal to the SEND tribunal. The Council did not review Y’s EHC plan in line with the guidance. The Council agreed to pay Miss X £550 to recognise the frustration this caused.

The complaint

1. Miss X complained the Council did not provide the provision in her son, Y’s Education, Health and Care (EHC) plan when he could not attend school for medical reasons between June 2022 and January 2023. Miss X further complained the Council did not review and amend the EHC plan in line with the regulations which delayed her right to appeal to the SEND tribunal. Miss X said Y lost a term of education and specialist provision and this caused them both stress and anxiety. Miss X would like Y to be compensated for the missed provision.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have considered Miss X’s complaint as set out in paragraph one of this decision statement. I have not considered the provision in place for Y after January 2023. This is because the Council issued a new EHC plan in January 2023. Miss X appealed to the SEND tribunal about the needs, provision and named placement set out in the plan. The provision offered to Y after that date is not separable from the matters appealed to the tribunal as set out in paragraph five.

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How I considered this complaint

9. I considered the documents Miss X sent to me and discussed the complaint with her on the telephone.
10. I read the documents the Council sent in response to my enquiries.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and statutory guidance

Education, Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of school. 

Reviewing an EHC plan

14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
15. 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. (Section 20(10)) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the 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 EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Provision

19. 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)
20. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

21. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
22. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

The Council’s alternative provision

23. The Council has an Access to Education (A2E) service. Its website states it provides a flexible, short-term, education service for children and young people who cannot attend school through exceptional circumstances. This could include medical reasons and permanent exclusions. It offers teaching, emotional, behavioural and social development work, mentoring and access to a virtual learning environment. The Council said referrals to A2E can be completed by:
• A school;
• The Schools Admission Team; and
• The Special Educational Needs and Disability (SEND) Team

What happened

24. Y is of primary school age and has an EHC plan that sets out it his special educational needs (SEN) and the provision required to meet those needs. At the time of these events Y had an EHC plan that said he had SEN around language, communication and social skills. It set out the necessary provision and the school he should attend.
25. The school held an annual review meeting of Y’s EHC plan in June 2022. It recorded that Miss X felt Y needed small groups to work in to meet his SEN. The annual review paperwork recorded that some changes were needed to Y’s EHC plan but the provision and placement remained appropriate. The school sent the annual review paperwork to the Council at the beginning of July.
26. Miss X contacted the Council with concerns about Y in October 2022. She said his SEN and medical needs had changed and he was struggling to attend school because of his physical medical needs which made him anxious. Miss X asked the Council to hold an interim review of Y’s EHC plan. The Council recommended the school developed an intensive care plan to respond to Y’s medical needs.
27. On the same day the Council sent Miss X the draft amended EHC plan following the annual review in June for her comments.
28. Two weeks later Miss X provided a GP’s letter. It stated Y’s school setting was not appropriate for his special educational and medical needs.
29. Miss X told the Council at the end of October that she and the school did not think the intensive care plan was appropriate and was not what Y would want.
30. At the end of November the school held an interim review of Y’s plan. The review paperwork recorded that Y had a new diagnosis and had not attended school since the middle of October. The school said it could continue to meet Y’s needs. The review recorded there were changes to Y’s health needs but the placement and provision in the EHC plan remained appropriate. Miss X said Y’s SEN needs and medical needs had changed, his EHC plan was no longer accurate and he was not coping with his mainstream setting meaning he was out of education. Miss X requested a specialist provision was named for Y.
31. The school sent the annual review paperwork to the Council with the medical letter including a letter from Y’s GP that stated Y was absent from school due to medical reasons stemming from a physical condition.
32. In early December the Council contacted the school and suggested it make a referral to its alternative provision (A2E) for Y if it believed he was unable to attend school due to a medical reason.
33. The Council considered the annual review paperwork and Miss X’s request to name a specialist provision on Y’s EHC plan. It did not agree to name a specialist provision as it considered that mainstream school was still appropriate to meet Y’s needs.
34. The school offered to fund an alternative provision (provider B) to support Y’s reintegration to school in December 2022. At the beginning of January Miss X declined provider B because she said Y would not be returning to a mainstream school so reintegration was not appropriate. The Council confirmed its current recommendation was that Y could attend the school named in his plan and so the alternative provision offered was appropriate.
35. In mid-January the Council told Miss X its decision that the current provision and placement in Y’s EHC plan remained appropriate. It issued the final amended EHC plan for Y and told Miss X of her rights to mediation and then to appeal to the SEND tribunal if she disagreed with the content of the plan.
36. Miss X appeal to the SEND tribunal about sections B (SEN), F (provision) and I (named placement) of Y’s EHC plan.
37. At the end of January the Council considered the school’s referral to A2E and the medical evidence provided. It declined to support Y. It said the school could make more reasonable adjustments to support Y’s attendance before it offered alternative provision and made recommendations for support.
38. Miss X complained to the Council in February 2023. She said it would not provide alternative provision for Y on medical grounds and had not amended Y’s EHC plan in line with the timescales in the guidance.
39. At the end of March 2023 the Council issued a letter stating it would not make changes to Y’s EHC plan following the interim review in November 2022.
40. The Council responded to Miss X’s complaint. It provided a chronology of what had happened but did not specify if it upheld Miss X’s complaint about alternative provision or explain its reasons. It said it should have told Miss X it would not amend Y’s EHC plan after the November review and apologised for the oversight.
41. Miss X asked the Council to consider her complaint at stage two. She said the Council had not explained why it could not provide alternative provision on medical grounds.
42. The Council responded to Miss X at stage two. It said its initial response was detailed and had responded to the complaint. It said it had failed to issue the amended final EHC plan following the June 2022 annual review, or to tell Miss X it would not amend the plan further after the interim review in November 2022. It said the school had supported Y and had kept it informed of the support it was offering.

My findings

Delays in the review process

43. When the school held the annual review meeting in June 2022 it recorded the provision and placement named in Y’s plan was appropriate. Following the review the Council decided that some changes should be made to other sections of the plan. The guidelines say the Council should have issued a draft amended plan for Miss X’s comments within four weeks, and an amended final EHC plan within 12 weeks. This should have been completed by the beginning of September 2022. The Council did not issue a draft amended plan until October, and a final plan until the beginning of January 2023. That was a delay of 18 weeks and was fault. It delayed Miss X’s appeal rights to the SEND tribunal.
44. Miss X began to raise concerns about the content of the plan, including the placement with the Council in October 2022. Had the Council issued the amended EHC plan in line with the guidance, Miss X would have been able to appeal to the SEND tribunal at this point. The delay caused Miss X frustration. I cannot say what other injustice, if any, this caused to Y as I cannot know the outcome of the SEND tribunal appeal had it been made earlier.
45. The Council should have told Miss X of its decision to maintain Y’s EHC plan within four weeks of the interim review in November 2022. It did not do so until March 2023. That is a delay of three months and is fault. However, I do not find that it caused Miss X an additional injustice as the Council issued the final amended EHC plan in January which provided Miss X’s tribunal appeal rights.

Alternative provision

46. The Council is responsible for ensuring the specialist provision set out in a child’s plan is in place. Miss X complained the Council did not provide an alternative provision for Y when she said his placement was unsuitable to meet his needs. We are not an appeal body. We cannot question the Council’s decision because someone disagrees with it. We can only decide if there was fault in the way the decision was reached.
47. When Miss X raised concerns about the placement and provision in October 2022 the Council recommended actions the school should take to support Y. It then considered the matter again in December 2022 following the interim review including Miss X’s opinions, the medical letters and that the school said it could still meet Y’s needs. It decided the placement and provision remained appropriate and that it did not need to provide an alternative provision. The Council considered the matter a third time in January 2023 when its A2E service declined the school’s referral as there were adjustments the school could make to meet Y’s needs. The Council demonstrated that it carried out its due diligence in ensuring the provision was in place for Y and considered if Y was unable to attend school due to a medical condition. There was no fault in the Council’s actions and therefore I cannot question the outcome.
48. The Council has since issued a final amended plan and Miss X has appealed the content of the EHC plan to the SEND Tribunal.

Complaint response

49. The Council’s complaint response to Miss X was unclear about its finding on Miss X’s complaint about the alternative provision. It did not explain if it upheld that element of complaint or not, or provide the reasons. It failed to recognise this and rectify it during its stage two response. This caused Miss X frustration and uncertainty about whether the Council had properly considered her complaint.

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Agreed action

50. Within one month of the final decision the Council will:
• apologise to Miss X for the frustration and uncertainty caused to her by the Council’s delay and unclear complaint response; and
• pay Miss X a symbolic amount of £450 to recognise the frustration caused by the 18 week delay in her appeal rights, and a further £100 for the frustration and uncertainty caused by the unclear complaint response.
51. Within one month of the final decision the Council will remind all relevant SEN staff responding to stage one and stage two complaint of the importance of clearly setting out their finding on each point of complaint, with reference to our Guidance on Effective Complaint Handling for Local Authorities.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I found fault causing injustice and the council agreed to my recommendations to remedy that injustice and improve service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman