Summary: Mrs X complained the Council failed to provide full-time education for her child since September 2021. Mrs X says the Council placed her child on a reduced timetable before they stopped attending school entirely in May 2023. We found the Council at fault for failing to provide suitable education for Mrs X’s child for five weeks and for delays in reviewing the child’s Education, Health and Care Plan. The Council agreed to apologise to Mrs X, pay her £250 for the avoidable frustration and inconvenience caused and £800 in recognition of the missed education.

The complaint

1. Mrs X complained the Council failed to provide full-time education for her child for several years. Mrs X says the Council placed her child on a reduced timetable because his school placement could not meet their needs outlined in their Education, Health and Care Plan.
2. Mrs X complained her child has not attended school since 22 May 2023.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)
7. 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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How I considered this complaint

8. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Both Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

Rules and regulations

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
12. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
15. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
16. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
17. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
18. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

19. In November 2020, the Council issued a final EHC Plan for Mrs X’s child, who I shall refer to as Y.
20. The Council completes reviews of this EHC Plan and decided to maintain this EHC Plan until 7 July 2022. The Council issued an amended EHC Plan for Y on 7 July 2022.
21. On 12 July 2022, the Council held a further annual review for Y’s EHC Plan. The Council proposed to amend Y’s EHC Plan again on this date.
22. The Council issued an amended EHC Plan for Y on 26 October 2022.
23. On 1 November 2022, the Council reviewed Y’s EHC Plan again and decided to maintain Y’s EHC Plan.
24. The Council completed an annual review of Y’s EHC Plan and produced an amended EHC Plan for Y on 3 August 2023.
25. The Council finalised Y’s EHC Plan and sent this to Ms X on 23 December 2023.

Analysis – EHC Plan reviews

26. The Council has acted suitably to review Y’s EHC Plan until 7 July 2022.
27. Following issuing of the 7 July 2022 the Council decided it needed to review and amend Y’s EHC Plan again shortly after. This was a decision the Council was entitled to make. However, on completing the annual review on 12 July 2022, and deciding to amend the EHC Plan, the Council had 12 weeks to issue a further amended final EHC Plan.
28. The Council had until 4 October 2022 to issue the amended EHC Plan. The Council only issued Y’s amended EHC Plan on 26 October 2022. This was 3 weeks outside the timescales and was fault.
29. Following issuing the 26 October 2022 EHC Plan, the Council reviewed this again on 1 November 2022 and decided to maintain this EHC Plan. The Council was entitled to review and maintain Y’s EHC Plan and I do not find fault.
30. The Council had 12 months to review Y’s EHC Plan from 1 November 2022. The Council should have completed Y’s annual review and decided to maintain, cease or amend Y’s EHC Plan by 31 October 2023. The Council produced an amended draft EHC Plan for Y on 3 August 2023 which showed its intention to issue a final amended EHC Plan for Y. The Council has acted within the statutory timescales and I do not find fault.
31. The Council had 12 weeks from 3 August 2023 to issue a final amended EHC Plan for Y to Mrs X. This meant the Council had until 26 October 2023. The Council failed to issue the final amended EHC Plan until 23 December 2023. This was 8 weeks outside the timescales and was fault.
32. The Council has delayed by 11 weeks outside the timescales for reviewing Y’s EHC Plans from 7 July 2022 until 23 December 2023. These delays were fault which caused Mrs X avoidable distress and uncertainty. The Council should apologise to Ms X and pay her £250 as a symbolic payment for this avoidable distress and uncertainty caused.

Analysis – record keeping

33. The Council has repeatedly completed annual reviews of Y’s EHC Plans shortly after issuing amended EHC Plans. The Council is entitled to this and I do not find fault with this. However, it is unusual for a council to hold annual reviews so shortly after issuing a previous final EHC Plan and there is no record of why these annual reviews were held at these times. The Council’s failure to suitably record its rationale behind its action is fault.
34. Similarly, the Council has confirmed to the Ombudsman it no longer holds Y’s EHC Plans for November 2020 and July 2022. This poor record keeping by failing to retain relevant information is also fault.
35. The Council should review its record keeping policies and provide guidance and training to staff about the importance of accurate record keeping including recording details to support its rationale behind its decision making.

Providing Education for children

Rules and regulations

36. 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. 
37. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements.
38. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
39. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

40. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled
41. 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.
42. 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)
43. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
44. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

45. In September 2021, Y’s school, School 1, put in place a reduced timetable of 2 hours each day for Y. This reduced timetable focused on core subjects and School 1 provided 1:1 lessons for Y.
46. At the EHC Plan annual review on 1 February 2022, School 1 noted that Y’s reduced timetable had been successful. Mrs X agreed this timetable had been successful for Y but wanted Y to attend more time at school. School 1 said it did not consider Y could access a full-time education at this school and discussed transition of Y to a different educational placement, School 2. All parties agreed to the transition of Y to School 2.
47. From 9 June 2022 to the end of the academic year, Y started to attend School 2 for half the week. Y remained on a reduced timetable at School 1 for the other half of the week.
48. Y did not return to either School 1 or School 2 when term started in September 2022. From 26 September 2022, Y attended School 2 every day.
49. On 17 October 2022, the Council visited Y at School 2 and assessed Y as doing well at this placement. The Council named School 2 in Y’s EHC Plan produced on 26 October 2022. School 1 removed Y from enrolment following this.
50. At the EHC Plan annual review for Y on 1 November 2022, School 2 noted concerns about its ability to manage Y. School 2 said Y cannot act within the parameters of the school ethos and it had concerns it cannot provide the level of support Y needs. School 2 said it did not consider it was a suitable placement for Y. Mrs X said she had hoped Y would settle at School 2 but also had concerns this was not the right setting for Y.
51. From 4 November 2022 to 14 November 2022, Y stopped attending School 2. School 2 held discussions with Mrs X and the Council about the difficulties with Y attending School 2. Following these discussions School 2 agreed a new reduced timetable for Y and the Council advised it would start looking for a more suitable placement for Y.
52. On 14 November 2022, Y started to attend School 2 again on the reduced timetable. The Council also started to provide targeted support for Y including home and school visits to try to support Y’s placement at School 2.
53. In January 2023, the Council held a panel meeting to discuss Y’s educational placement. Following this meeting, the Council started to consult with new schools for Y as it agreed School 2 was not a suitable long-term educational placement for Y.
54. By 22 February 2023, the Council’s targeted support for Y stopped.
55. On 26 April 2023, School 2 temporarily excluded Y before permanently excluding Y on 4 May 2023. Ms X contacted the Council on 9 May 2023 and told the Council about Y’s exclusion.
56. The Council held a panel meeting on 17 May 2023 which agreed to provide tuition for Y. The Council started to provide this tuition on 22 June 2023.
57. The Council continued to consult with schools to find a school placement for Y but failed to find a suitable school placement.
58. On 22 December 2023, Y moved out of the Council area.

Analysis - September 2021 to 9 June 2022

59. School 1 placed Y on a reduced timetable in September 2021 of 10 hours each week. When a child is on a reduced timetable, a council has a responsibility to keep this reduced timetable under review to ensure this is suitable for a child’s needs. The Council has accepted it failed to keep Y’s reduced timetable under review from September 2021 to February 2022. This was fault.
60. The annual review held on 1 February 2022 confirmed the reduced timetable was successful for Y. It is suitable for a child to be placed on a reduced timetable in certain circumstances if this timetable would better suit their needs than full-time education. It is also of note that Y’s education was more condensed as this provided education in a 1:1 format rather than a full classroom format.
61. Following the annual review meeting in February 2022, School 1 and the Council agreed Y’s education would be better suited at a different educational placement. While this move to a new educational placement was arranged, Y continued to receive the same education at School 1. Y continued to attend School 1 consistently except for one week in March 2022 and one week in May 2022.
62. Since School 1 was providing Y with condensed 1:1 education in core subjects for 10 hours each week, which School 1 confirmed as successful, I do not consider the Council’s fault in failing to keep Y’s provision under review caused a significant personal injustice to Y.

Analysis - 9 June 2022 to the end of the academic year

63. From 9 June 2022 until the end of the academic year, Y attended both School 1 and School 2 split across the same week. Y’s attendance shifted to higher amounts at School 2 by the end of July 2022.
64. Y navigated a successful transition period from School 1 to School 2 from 9 June 2022 to the end of the academic year. None of School 1, School 2 or Mrs X contacted the Council to advise of any issues with Y’s transition between educational placements.
65. I do not find fault with the Council or consider there was any injustice to Y during this period.

Analysis – 5 September 2022 to 26 September 2022

66. Y did not attend either School 1 or School 2 from 5 September 2022 to 26 September 2022. As such, Y received no education.
67. However, none of School 1, School 2 or Mrs X told the Council Y was not attending school. Since no-one made the Council aware of Y’s absence from school at this time, I cannot find fault with the Council for failing to act in response to Y's loss of education.

Analysis – 26 September 2022 to 4 November 2022

68. Y attended School 2 from 26 September 2022 to 4 November 2022. School 2’s attendance log for Y shows Y attended school every day.
69. The Council also visited School 2 in October 2022 and confirmed Y was accessing a suitable education at School 2.
70. Since Y was accessing education at School 2 and the Council had assessed School 2 as a suitable school placement, I would not find fault with the Council and there is no injustice to Y.

Analysis – 4 November 2022 to 14 November 2022

71. School 2 and Mrs X both told the Council by 4 November 2022 they did not consider School 2 was a suitable educational placement for Y. Following Y’s stop in attendance on 4 November 2022, the Council held discussions with School 2 about how to provide education for Y.
72. Government guidance recommends a council arranges education for a child from their sixth day of absence when it is clear a child would be away from school for more than 15 days. In this instance, Y was only absent from school for six days. There was no duty for the Council to provide education for Y outside of school.
73. The Council decided Y could access education at School 2 until it could find a new suitable school placement for Y. The Council engaged with School 2 and agreed a new reduced timetable for Y with further Council involvement to start from 14 November 2022.
74. I am satisfied the Council took suitable steps to work with School 2 to get Y back into school in November 2022. I do not find fault with the Council.

Analysis – 14 November 2022 to 4 May 2023

75. From 14 November 2022, Y attended School 2 on the new reduced timetable with general success. School 2’s attendance records for Y show good attendance other than one week in March 2023.
76. In addition to the reduced timetable, the Council provided targeted support for Y by undertaking a range of home and school visits until February 2023 to support Y’s educational placement. School 2 also provided regular updates to the Council about Y’s progress at school.
77. The Council was providing education for Y through the educational placement named in Y's EHC Plan. While this education was on a reduced timetable, this was a bespoke timetable for Y’s needs designed by School 2 and the Council to enable Y to access education. The Council took action to help facilitate education for Y at School 2 while it sought a new school placement for Y.
78. Since Y was attending School 2 and receiving education with suitable input from the Council, the Council had no duty to provide any additional education for Y. I do not find fault with the Council.

Analysis – 4 May 2023 to 22 June 2023

79. School 2 permanently excluded Y on 4 May 2023. Mrs X told the Council about Y’s exclusion on 9 May 2023.
80. It would have been clear to the Council on 9 May 2023 that Y would be absent from School for more than 15 days. This invoked the Council’s Section 19 duty to provide education for Y outside school. The Council took action to authorise tuition for Y outside school but delayed in putting this tuition in place.
81. The Council should have provided alternative provision of education for Y from the sixth day of absence. However, since the Council was not told about Y’s exclusion until 9 May 2023, the sixth day of absence should run from this date. This meant the Council should have provided alternative education for Y from 17 May 2023.
82. The Council only started to provide tuition for Y from 22 June 2023. This meant Y missed five weeks of education through the fault of the Council.
83. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
84. Since Y missed five weeks of education without any input, including any input from Y’s EHC Plan, this loss of education had a greater impact on Y than for a child without an EHC Plan. We recommend the Council pays Ms X £800 for Y’s missed education during for the five weeks from 17 May 2023 until 22 June 2023.

Analysis – 22 June 2023 to 23 December 2023

85. From 22 June 2023, the Council started to provide 10 hours of tuition for Y each week. The tuition put in place by the Council was consistent and regularly provided to Y. The Council put in place 10 hours each week to match the reduced timetable provided at School 2.
86. The Council has shown it considered Y’s individual needs when deciding on how much education to provide for Y. Y’s tutor has also provided regular feedback to the Council about Y’s engagement with the tuition on offer. This feedback has shown that Y has not always fully engaged with the tuition. The lack of engagement by Y in the 10 hours of tuition each week supports the Council’s decision that any extra tuition would unlikely have been productive. The Council also supplemented Y’s tuition with another education programme in November 2023 which was withdrawn shortly after introduction due to being unable to meet Y’s needs.
87. The Council has put in place suitable education for Y from 22 June 2023 until 23 December 2023. I do not find fault with the Council. From 23 December 2023, Y moved to a new council area meaning provision of education from this date was not the responsibility of this Council.

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Agreed action

88. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology in writing to Mrs X and pay her £250 for the avoidable distress and frustration caused through the 11 weeks delays in reviewing Y’s Education, Health and Care Plans.
• Provide Mrs X with a payment of £800 in recognition of the Y’s five weeks of missed education Y experienced.
89. Within three months of the Ombudsman’s final decision the Council should:
• Review its record keeping policies and provide guidance and training to staff about the importance of accurate record keeping including recording details to support its rationale behind its decision making.
90. The Council should provide us with evidence it has complied with the above actions.

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Final decision

91. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman