Summary: The Council delayed issuing an Education Health and Care plan after an annual review. It also failed to make sure Child B received full-time education, and the provision in the plan, for a year while B was out of school. The Council has agreed to apologise and make payments to B and Ms X.

The complaint

1. Ms X complained that the Council:
1. Failed to find a suitable school placement and/or provide education for her child, who has an Education, Health, and Care plan, for over three years; and
2. Communicated poorly with her throughout the process.
2. As a result, Ms X says she experienced avoidable distress and anxiety and her child missed out on education and support in a suitable school.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. Ms X complained about things that happened starting in 2020. This part of the complaint is late. There is no good reason Ms X could not have complained to us sooner and so I have not exercised discretion to investigate this part of the complaint.
8. My investigation has considered events since December 2021.

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How I considered this complaint

9. I spoke to Ms X and considered the information she provided.
10. I made written enquiries of the Council and considered its response along with relevant law and guidance.
11. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
12. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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 found

Education Health and Care plans

14. 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 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. 
15. 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)
16. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
19. 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)
20. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
22. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
24. The education provided by the 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)
25. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
26. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

27. Ms X’s child, whom I will call B, has special education needs. The provision to meet B’s needs is set out in an EHC plan. B went to a special school until October 2020, which I will call Provider 1. From October 2020 to January 2021, B did not go to school. B received some tutoring and alternative provision instead.
28. Ms X and B wanted B to go to a mainstream school. In December 2021, the Council arranged an annual review of B’s EHC plan. At the annual review, a mainstream school agreed to a dual placement. This meant B could go to the mainstream school but B and the school would get extra support from Provider 1.
29. B started at the school in January 2022. Ms X says B was happy there. During February half-term Ms X went to a meeting with the school and the Council. The school said it could not meet B’s needs. It said B could go to school part-time until the Easter holidays. After that, B could not go back to the school.
30. In late March, the Council sent Ms X an amended draft of B’s EHC plan. It also started consulting with other schools for B, including schools outside the Council’s area.
31. Ms X told the Council B could not attend a school further than about a 30-minute journey. She told the Council that B gets motion sick and anxious on car journeys. A long journey to school would mean B arrived too distressed and agitated to learn.
32. In May, B started tutoring at an alternative provision provider, which I will call Provider 2.
33. The Council issued a Final EHC plan in June. Section F of B’s plan was the same as before the annual review. The only change was to the provision in Section I, which said where B would go to school. This did not name a placement. It named a type of school, which was a special school. Ms X did not appeal to the tribunal.
34. In July, B’s attendance at Provider 2 decreased. B had attended only six sessions out of 54. Ms X therefore told the Council she would try to educate B at home. She asked for advice and resources. Provider 1 visited B and Ms X at home. It agreed to provide a laptop and lessons for one hour a day. It would also provide work for B to do online.
35. In August, Ms X asked the Council for B to receive Education Otherwise than at School (EOTAS). The Council told Ms X it would only do this if no education setting could meet B’s needs or offer a place. It did not consider this was the case.
36. In September, Ms X told the Council she was using a free online resource to provide education for B.
37. The Council arranged an emergency review of B’s EHC plan for early October. However, this had to be cancelled because no one from the Council attended. The Council rearranged the review for later that month.
38. In January 2023, the Council consulted with five possible schools for B. Three schools said they were full or couldn’t meet B’s needs. Ms X refused one of the schools as not being suitable for B. The other did not respond to the Council.
39. In March, when B still did not have a school place, Ms X asked again for an EOTAS package, including tutoring at Provider 2. Provider 2 told Ms X that B could start there from the following Monday if the Council agreed the funding.
40. The Council did not agree the funding for another two weeks. B started at Provider 2 in late March. Ms X says this is going well and B is making good progress.
41. Ms X complained to the Council in March. The Council responded at stage one of its process in April and stage two in June. The stage two response found the Council:
• “did everything possible to secure [B’s] educational provision” and was not at fault for B’s time out of school
• failed to communicate effectively with Ms X throughout, including delay responding to contact and failing to attend meetings without notice. It accepted this was fault and apologised.

My findings

EHC annual review

42. The Council completed B’s annual review in December 2021. It did not issue a final plan until June 2023, over six months later. It took the Council over two months to issue an amended plan in which the only change was to the placement named in Section I. I can see no reason why such a minor change should have taken so long. This delay was fault.
43. The Council issued the draft amended plan in March. It should therefore have issued the final plan in May. It did not do so until June. This further delay of a month was also fault.
44. In total, I find the Council delayed amending and issuing B’s EHC plan by three months. This caused Ms X and B avoidable distress and anxiety when B was trying to settle into a mainstream school. This is an injustice to Ms X and B.

Communication

45. In response to Ms X’s complaint, the Council accepted fault for its poor communication with Ms X. I agree with the Council’s finding of fault. It has apologised to Ms X, which is a suitable remedy for the injustice caused.

Looking for a school

46. The Council did start looking for a school in March 2022 when the mainstream school said B couldn’t stay there. However, Ms X says the Council has ignored her repeated requests not to look at schools too far away for B.
47. In response to my enquiries, the Council said: “[t]o date, the Council have not been provided with any evidence of the difficulty in travelling (e.g. travel sickness, anxiety).”
48. The evidence shows several emails from Ms X over the last three years telling the Council about B’s difficulties with travelling. There is no evidence of any efforts by the Council to explore this further with Ms X or seek advice from any professionals to inform its search for a school for B. This was fault.
49. Absent any evidence to the contrary, I accept Ms X’s evidence that B gets anxious and motion sick on long journeys. This would make arriving at school fit to learn unlikely. As a result of this fault, Ms X felt ignored and that the Council was not considering B’s needs. This is an injustice to Ms X. The Council also spent avoidable time and resources looking for unsuitable placements.
50. Despite B not being in a school, and a special school being the type named in B’s EHC plan, there is no evidence the Council made any efforts to find a school for B from July 2022 until January 2023. This is a period of six months. This was fault. This caused Ms X and B avoidable distress and uncertainty, which is an injustice.

Alternative provision

51. The school put B on a part-time timetable from February half-term until the Easter holidays. B was not, therefore, receiving full time education or all the support in section F of the EHC plan.
52. After Easter, B received some tutoring at Provider 2. This was not full time and there is no evidence it could provide all the support in B’s EHC plan.
53. Ms X told the Council she would try to educate B at home from July 2022. Provider 1 gave B one hour a day of teaching. B was not, therefore, receiving full time education or all the support in Section F of the EHC plan.
54. Ms X supplemented B’s learning with free online resources. These are not a substitute for teaching and do not meet the provision for B’s special education needs in section F of the EHC plan.
55. Therefore, from February half-term of 2022 until the Council agreed an EOTAS package and B started at Provider 2 in March 2023, B was not in suitable full-time education and did not receive all the support in their EHC plan.
56. The Council has a statutory duty to make the provision in the plan and a statutory duty to provide full time education to children who cannot go to school. The Council’s failure to meet these duties to B was fault.
57. I recognise that B has always had access to some form of education. However, B has missed out on a year of full-time education. This is a significant injustice to B.

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Agreed action

58. To remedy the injustice to Ms X and B from the faults I have identified, the Council has agreed to:
• Apologise to Mrs X in line with our guidance on Making an effective apology
• Pay Ms X £350 in recognition of her avoidable distress and uncertainty
• Pay B £3,000, being £1,000 for each term B did not receive suitable full-time education which met the provision in the EHC plan.
59. The Council should tell the Ombudsman about the action it has taken within four weeks of my final decision.
60. When we find fault, we can also recommend action for the Council to improve its services. We have recommended services improvements to address the Council’s delays in EHC plans and to remind it of its duty to make alternative provision in decisions on other complaints. We made these recommendations after the events subject to this complaint. I have not, therefore, made additional recommendations.

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Final decision

61. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman