Summary: The Council was at fault for not putting in place adequate provision for a child with special educational needs when they were out of school. The Council was also at fault for delaying in issuing an Education, Health and Care plan following an annual review. As a result, the child did not receive the provision they should have and had to wait longer for an updated Education, Health and Care plan. To remedy the injustice caused the Council agreed to apologise, make a payment for the loss of provision to the child and to consider what measures it can put in place to ensure Education, Health and Care plans are completed within the statutory timeframe.

The complaint

1. Ms X complains the Council has not provided appropriate education to her child while he was out of school and delayed in issuing an Education, Health and Care plan following an annual review.

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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. 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.
4. 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)
5. 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

6. 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 Education, Health and Care 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)
7. I have not investigated Ms X’s concerns about lack of provision from before October 2022. This was because Ms X appealed to the SEND Tribunal about the content of her child’s Education, Health and Care plan, including the school placement.
8. I have not investigated Ms X’s concerns about lack of provision from June 2023 onwards. This is because the Council issued a final Education, Health and Care plan for Ms X’s child and she has appealed the section naming a school placement to the SEND Tribunal.
9. I consider the matters Ms X previously appealed and is currently appealing are too closely linked to the educational and special educational provision for her son. This investigation focuses on matters between October 2022 and June 2023.

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How I considered this complaint

10. As part of this investigation I considered the information provided by Ms X and the Council. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and considered comments received in response.
11. 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

Special educational needs

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. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
14. 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)

Arrangements for reviewing an EHC Plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. 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)
17. 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)
18. 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)
19. 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

20. 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.
21. 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)
22. 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)
23. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
24. 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))
25. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
26. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
27. 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))
28. 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)
29. 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

30. Ms X’s son Y has special educational needs. In January 2022, the Council issued an EHC plan for Y. Ms X appealed to the SEND Tribunal as she wanted a specialist educational placement for Y.
31. The SEND Tribunal was concluded in October 2022 and the Council agreed to name a specialist school placement.
32. Y started a placement at School Z in November 2022. This was a specialist school. School Z had planned for Y to transition to attend full time and agreed a transition timetable for him for the first month of his placement. At this time Y was attending an alternative provider for half a day per week.
33. In December 2022, Ms X contacted the Council and asked for an early annual review of his EHC plan as he was not attending School Z due to his anxieties.
34. On 11 January 2023, the annual review of Y’s EHC plan took place. The notes from this meeting showed School Z tried to put in place a gradual transition for Y to attend full time but due to an increase in Y’s anxiety and issues with his taxi to school this was not possible. The notes also showed Ms X wanted Y to receive an package of Education Otherwise than at School (EOTAS).
35. The Council decided to amend Y’s EHC plan, however it did not write to Ms X to tell her of this decision.
36. Following the annual review meeting the Council had further discussions with School Z to see if it could keep him there and offer other support. School Z told the Council at the end of January 2023, it could not keep him on roll just to support him with half a day per week attendance at an alternative provider.
37. Ms X also had email communication with the Council in January 2023, where she asked for alternative education for Y as he could not attend School Z.
38. In March 2023, the Council told Ms X it would explore further alternative provision options for Y. The Council also contacted several schools to see if they could offer Y a placement.
39. On 6 April 2023, Ms X made a formal complaint to the Council. Ms X complained about the level of communication she had received from the Council about Y’s change of placement and from the SEND team. She also complained that Y had not accessed full time education for a significant period of time and he still had not received an updated EHC plan following his annual review in January 2023.
40. In mid-April 2023, the Council confirmed Y could have two sessions per week with the alternative provider he was attending and one session of online tutoring per week.
41. On 27 April 2023, the Council sent Ms X a draft EHC plan for Y.
42. The Council responded to Ms X’s complaint in May 2023. The Council said it considered Ms X’s request for EOTAS but decided this was not appropriate at this time. The Council said it believed an interim package of alternative provision while it looked for a new school place for Y was best. It had consulted several schools to try to find Y a school place. In relation to the content of the EHC plan, the Council said its Educational Psychology team would review certain aspects of Y’s needs and the Council would follow this up with Ms X.
43. Ms X responded to the Council shortly after and asked it to consider her complaint at the next stage. Ms X said Y’s placement at School Z had broken down in November 2022 and before the January 2023 annual review. Ms X asked the Council why it had taken from January to April 2023 to issue Y with a draft EHC plan. Ms X also raised some points that she disagreed with in Y’s draft EHC plan and said Y had not been provided with a package of EOTAS.
44. The Council issued Y’s final EHC plan on 16 June 2023. This did not name a school placement in section I but named a specialist educational placement.
45. The Council provided Ms X with its final complaint response in June 2023. The Council said:
• Before it offered Y EOTAS it needed to explore the alternative options within a school setting. The Council said in deciding this it had considered the views of professionals.
• Apologised for the delay in issuing Y’s draft EHC plan.
• Apologised for delays in communicating with Ms X.
• It had now issued a final EHC plan and had considered Ms X’s views.
46. The Council also agreed to keep looking for a specialist independent school for Y until the end of July 2023. Following this it would carry out a review in September 2023, to look at Y’s interim package of provision. Following this the Council would decide what to do next.
47. In July 2023, Ms X appealed to the SEND Tribunal. Part of her appeal concerned the named school placement in Section I of Y’s EHC plan.
48. In September 2023, the Council put in place further alternative provision for Y.

Analysis

49. Following the SEND Tribunal’s decision in October 2022, Y was due to start a new school placement in November 2022. While there was a plan for him to transition to full time attendance, the placement ultimately broke down.
50. In December 2022, Ms X made the Council aware of this and asked for an emergency annual review for Y. At this time Y was getting half a day session at an alternative provider, however it is not clear what this provision was or whether it was educational. The provision was not full time and was designed for Y to attend alongside his school placement. I also do not consider Y was getting the Section F provision in his EHC plan. It took the Council until mid-April 2023, to put in place any further provision for Y. This was fault.
51. Given that the Council knew about Y’s situation in December 2022 and held an annual review in January 2023, I would have expected it to act sooner to put in place support for Y.
52. From mid-April 2023, Y was receiving two sessions with the alternative provider and one session of online learning per week, which later increased to two sessions. From the information provided, I am not satisfied Y was getting the section F provision in his EHC plan. This was fault.
53. In addition, Y was not getting full time education and I cannot see how the Council decided what was the appropriate amount of education for Y. Y has not received the education and special educational provision he was entitled to. As a result he has missed out on receiving education and support in his EHC plan.
54. The Council was also at fault for the time taken to issue Y’s EHC plan following his annual review. The annual review meeting was held on 11 January 2023. Following this the Council did not send Ms X notification it was going to amend Y’s EHC plan. This was fault. As the Council decided to amend Y’s EHC plan, it should have sent a final EHC plan to Ms X by 8 March 2023. As a result there has been just over a three month delay in Y receiving an updated EHC plan.
55. In terms of injustice to Y, the new EHC plan included measures to try to reintegrate Y back into school. Had it been issued sooner Y could have started to receive the provision at an earlier date.
56. Ms X has also been caused injustice. Ms X’s appeal rights were delayed as a result of the time taken to issue Y’s final EHC plan. Ms X would have submitted her appeal three months earlier if not for the Council’s delay and Y’s case would have likely been listed for an earlier date at the SEND Tribunal.

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Agreed action

57. Within one month of my final decision, the Council agreed to carry out the following:
• Provide Ms X with a written apology for the faults identified.
• Pay Ms X £3,000 for the benefit of Y’s education to recognise the loss of provision. This has been calculated at £1,500 for two terms between January 2023 and June 2023. In coming to this figure I considered the Ombudsman’s guidance on remedies. I also considered that the Council had put in place some provision for Y during this timeframe.
• Pay Ms X £300 to acknowledge the distress caused by her appeal rights being delayed and for the distress caused as a result of Y not having adequate provision.
• Consider what went wrong in this complaint and look at what measures the Council can put in place to ensure that EHC plans are issued within the statutory timescales following an annual review. The Council should report back to the Ombudsman with its findings and any improvements to its processes it decides to make.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation and found the Council was at fault and this caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman