Summary: Ms X complained the Council failed to ensure her son (B) received an education when he was unable to attend school. She also complained the Council delayed issuing B’s final Education, Health and Care (EHC) Plans, delayed obtaining relevant assessments, and did not respond to her complaints. We have found the Council failed to properly consider its Section 19 duty at key points in the 2021/22 academic year. We have also found the Council failed to fulfil its Section 19 duty in the 2022/23 academic year. These faults caused a loss of education provision and support for B. We have also found the Council at fault for failing to issue B’s EHC Plans within statutory timescales and for failing to respond to Ms X’s complaint. We have made recommendations to remedy the injustice this caused. We have also recommended the Council act to improve its services.

The complaint

1. Ms X complained the Council failed to ensure her son received an education when he was unable to attend school. She also said the Council delayed in finalising her son’s final Education, Health and Care (EHC) Plan, delayed in obtaining therapy assessments, and did not respond to her complaints.
2. Ms X said the Council’s faults had a significant impact on her son’s educational attainment, and affected his personal development and wellbeing. She said she also experienced significant distress, uncertainty and frustration.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)

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What I have and have not investigated

7. Ms X complained the Council acted with fault over many years. As set out in paragraph 6, the Ombudsman cannot consider late complaints unless we decide there are good reasons. I have not identified a good reason Ms X could not have complained about matters before December 2020 sooner. Some of the matters complained of between December 2020 and July 2021, and in September 2022, are also outside the Ombudsman’s jurisdiction to consider. This is because there was a right of appeal to the SEND Tribunal that Ms X could reasonably have used.
8. I have exercised discretion to consider the Council’s actions from July 2021 onwards, as I believe these actions are relevant to Ms X’s claimed injustice. This is because Ms X consistently raised concerns from this point, without letting the matter drift, while the Council failed to adhere to statutory timescales and respond to complaints.
9. While I have not investigated earlier matters, I have mentioned some in the statement for context.

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How I considered this complaint

10. I discussed the complaint with Ms X and considered information she provided.
11. I considered information the Council provided about the complaint.
12. Both Ms X and the Council were able to comment on a draft version of this 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plan

14. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
15. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement.
16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

Reviewing EHC Plans

17. 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.
18. 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)
19. Where the decision is to amend the existing EHC Plan, the Courts have found councils must notify the parent of the decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. The council must then issue any final amended plan within eight weeks of this Amendment Notice. (R, (L, M and P) v Devon County Council). The amended final plan should therefore be issued within 12 weeks of a review meeting.
20. Where councils decide to carry out a full reassessment of an EHC Plan, it must issue the final EHC Plan within 14 weeks of the decision to re-assess.

Appeal rights and the Ombudsman’s jurisdiction

21. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
22. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
23. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
24. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
25. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

Alternative provision

26. 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.
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’)
30. 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)
31. 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;
32. 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.

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What I found

Summary of key events

33. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
34. Ms X’s son, referred to in this statement as B, began secondary education at School J in September 2018.
35. In 2020, Ms X asked the Council to carry out an EHC needs assessment. Ms X said the Council refused this request, leading Ms X to appeal to the SEND Tribunal. Ms X said the SEND Tribunal directed the Council to complete an EHC needs assessment for B. The Council said it issued an EHC Plan to B in May 2020, followed by two draft EHC Plans in September and November 2020. In December 2020, the Council issued B an amended final EHC Plan. This plan named School J as the setting.
36. In July 2021, School J held an annual review meeting to consider B’s EHC Plan and recommended it be changed. The review documents show:
• B was not attending the school setting.
• A support service commissioned by School J (referred to in this statement as Provider Y) had been visiting B twice a week since October 2020. This service provided support and interventions around improving health, confidence and anxiety. Provider Y’s report said progress was intermittent and slow, and B was concerned he would be sent back to School J if he showed too much improvement. Provider Y said B had been assured this would not happen.
• B had not been able to complete formal education tasks over the previous year, due to his emotional state. School J said such a target was not a priority for B, as he was not “…in a social and emotional state to face any form of educational activities of this nature.”
37. The Council said it agreed to amend B’s EHC Plan, because it did not meet his needs.
38. In September 2021, before the Council issued a draft amended EHC Plan, Ms X requested the Council consider a package of education other than at school (EOTAS) for B. The Council’s EHC multiagency panel considered the proposal and budget request in September 2021, but decided it needed more details before it could decide. Following further consideration in November and December 2021, the panel agreed to fund 12 sessions of art therapy for B. The Council said B only attended one session.
39. In March 2022, the Council issued B’s amended draft EHC Plan. The plan still named School J.
40. Provider Y wrote to the Council, explaining it would be ending its service to B, as it felt it could not be the only agency involved in supporting B. Provider Y asked the Council to be clear what steps it would take to support B and identify the therapy and interventions he needed.
41. Around the same time, School J told the Council while B remained on the school roll, School J’s input on his provision had been limited for a long time. School J said it had told the Council it could not meet B’s needs, but the Council had refused Ms X’s request for an EOTAS package that might help. School J said it could not ask B to engage with provision that would be detrimental to his wellbeing. School J told the Council it had not offered support. Provider Y provided further comments corroborating School J’s position. Provider Y said School J had tried to get the Council to update B’s EHC Plan, but the draft EHC Plan proposed remained unsuitable. They said B’s diagnoses were incorrectly recorded and the provision expected from support staff would be impossible to implement.
42. The Council said Ms X provided comments on the draft EHC Plan in May 2022. The Council said it made amendments and issued an amended final EHC Plan in August 2022, providing a right of appeal to the SEND Tribunal. The amended final plan still named School J.
43. In September 2022, Ms X complained to the Council and health services about how B’s care, support and education needs had been managed. The Council did not respond to this complaint.
44. In October 2022, the Council said it decided B’s EHC Plan would need to be amended again to reflect his current level of need. It said this followed further communication from School J and Ms X.
45. The Council sought to have assessments carried out as part of this process. Ms X said the Council provided contact details for the Speech and Language Therapist (SLT) in November 2022, with Ms X having to contact the therapist directly to arrange the assessment. The Council said the SLT completed their assessment and issued their report in December 2022.
46. The Council also sought an Occupational Therapy (OT) assessment in November 2022. Ms X said it took until July 2023 for the OT assessment to be completed. The Council told the Ombudsman it accepted this delay. It cited the lack of available OTs in general. The Council said the OT issued their report in August 2023.
47. The Council told the Ombudsman it decided it owed B a Section 19 duty in December 2022, as the education provision in place was not suitable. It said in February 2023, it sought to arrange online courses as well as therapy provision. The Council told the Ombudsman this did not start until September 2023.
48. The Council said it issued B’s amended draft EHC Plan in September 2023. This draft plan proposed an EOTAS package for B.
49. The Council said Ms X requested additional time to comment on the EHC Plan in October 2023. The Council said it advised Ms X to take her time in replying. The Council said it had not received a response as of November 2023.

Analysis

December 2020 to July 2021

50. I have not considered education provision in this period. Ms X had the right to appeal to the SEND Tribunal over the content of the EHC Plan, including the special educational provision and school placement named, if she disagreed with the Council’s decisions. It would have been reasonable for Ms X to exercise this right of appeal.

July 2021 to August 2022 (2021/22 academic year)

51. School J held an annual review meeting in July 2021. School J’s review report recommended the Council change B’s EHC Plan, as professionals believed there to be a significant gap between the special educational provision in place and B’s needs. School J sent its report to the Council on the same day as the annual review meeting. The Council issued its decision letter on the same day, confirming it intended to amend B’s EHC Plan.
52. In its decision letter, the Council committed to issuing B’s amended final EHC Plan within eight weeks of the decision, as the timescales set out in paragraph 19 set out. This would have been on or around 13 September 2021. The Council did not issue a final amended EHC Plan until 16 August 2022, a delay of around 48 weeks.
53. Responding to my enquiries, the Council accepted this delay. It recognised it did not meet the statutory timescales set out in paragraphs 18-19. It said this was in part caused by the need to get further information to update B’s EHC Plan, and issues with staffing capacity.
54. The delay in issuing B’s amended final EHC Plan is fault. This caused Ms X avoidable frustration, uncertainty and distress in pursuit of suitable arrangements for B’s education. This delay also frustrated Ms X’s right to appeal the content of the amended final EHC Plan to the SEND Tribunal. Ms X did not exercise this right, which mitigates this injustice slightly. The Council’s delay in issuing the amended final EHC Plan prolonged uncertainty about B’s long-term educational provision, which is an injustice to B. The Council said it recognised the impact delays had on families such as Ms X and B. It said it was working to increase capacity and reduce delays issuing EHC Plans after an annual review. I have addressed this in my recommendations.
55. School J’s review report makes clear B was not attending school. The Council should therefore have considered whether it owed B a Section 19 duty and whether it needed to act to ensure he received suitable education provision. I asked the Council how it considered its Section 19 duty to ensure B received a suitable education from July 2021 onwards.
56. The Council told me:
1. B was on the roll at School J, which provided education and checked B’s welfare.
2. Provider Y submitted a report as part of the review, confirming it provided twice-weekly sessions, which B engaged with. The Council said these sessions aimed to ensure B continued to receive education and support, while building trusting relationships to help B transition back into School J. The Council said School J continued to offer core subjects as online provision until the end of 2022.
3. The Council said it was satisfied School J had provided education and oversight in coordination with the professionals involved.
4. The Council also commissioned 12 sessions of art therapy in late 2021, but B only attended one session.
57. I have considered the Council’s response, and the information supplied by School J and Provider Y as part of the review in July 2021. I note Provider Y’s report confirming it held twice-weekly sessions with B, confirming B attended most of these sessions. The report suggests these sessions were to build engagement, with small goal-setting around health, confidence and anxiety. The report suggests there had been progress and successes for B, but noted the support still needed. The reports do not mention engagement with learning or core subjects, though School J’s report stated this would not have been a priority for B at the time. The Council has suggested it was satisfied the arrangements in place at the time of the annual review were suitable to support B. The Council’s response suggests it delegated its responsibility to School J.
58. However, the Council remained responsible for B. I have considered the Ombudsman’s recommendations to councils, laid out in paragraph 31. The Ombudsman says councils should be able to show they have considered the specifics of the situation. Councils should be able to show they have considered whether the education available to the child is all they can manage, or whether it could be increased with the right interventions and support. Councils should also make clear decisions on the actions they will take, considering the information to hand. I am not satisfied the Council can show it properly turned its mind to this question at key moments. I have seen no evidence of how the Council kept the situation under review, or considered whether it needed to act based on new evidence.
59. Ms X provided evidence to show Provider Y told the Council in March 2022 it was ending its support for B. School J also plainly told the Council it had no direct input in B’s provision at that time, was clear it could not meet his needs, and highlighted the lack of academic progress in general. I have seen no evidence the Council responded to this, or considered whether it should take further action, given the proposed changes in B’s support. It is difficult to reconcile the Council’s view - that support remained suitable throughout the academic year – with evidence showing both School J and Provider Y had such clear concerns in March 2022.
60. It is clear B’s vulnerability and health needs meant it would be difficult for him to consistently engage with education provision. I accept the Council may have believed the support in place at the time of the annual review in July 2021 was sufficient, though I recognise Ms X disagrees with this. However, the Council should have acted on the concerns raised by School J and Provider Y in March 2022, by considering how it could intervene and improve the situation for B. I have found the Council at fault for not doing so.
61. On the balance of probabilities, I believe had the Council properly turned its mind to the question in March 2022, it could only have decided it would need to intervene to ensure the provision in place for B was suitable. This would mean it had to act to address this, but it did not. I therefore believe this fault meant B did not receive suitable education provision during the period of the summer term in the 2021/22 academic year. This is an injustice to B.

August 2022 to November 2023 (2022/23 academic year)

62. The Council issued a final amended EHC Plan for B in August 2022. Shortly after the start of the new academic year, the Council agreed to change the plan again, as it agreed it did not meet B’s level of need. The Council decided this outside of the annual review process. It has provided evidence it took this decision on 11 October 2022. I therefore consider this is the date the Council made its decision, and consider relevant timescales apply from this point.
63. The Council sought to conduct an EHC re-assessment of need, seeking the input of SLT and OT as part of this process. The timescales set out in paragraph 20 therefore apply. The Council should have issued an amended final EHC Plan within 14 weeks, on or around 20 January 2023.
64. The Council said it issued an amended draft EHC Plan to Ms X in September 2023. It said in October 2023, Ms X sought additional time to respond. The Council said it told Ms X to take as much time as she needed to comment. As of November 2023, it said it had not received a response.
65. The Council said difficulties obtaining assessments were the main cause of the delay issuing the EHC Plan. It said while it was able to quickly secure a SLT assessment and report, a lack of available OT’s prolonged the process. It told the Ombudsman it recognised this delay. Ms X told the Ombudsman she believed much of this delay was avoidable, caused by the Council’s late disclosure of information and delaying financial payments. Correspondence Ms X provided to the Ombudsman supports the assertion that much of this delay was avoidable.
66. The Council again did not meet statutory timescales for issuing the amended final EHC Plan after deciding to re-assess B’s needs. I have found the Council at fault for this.
67. This fault caused injustice to Ms X and B. Ms X again experienced avoidable frustration and uncertainty around B’s education arrangements during a key academic year, and uncertainty of knowing what provision would be in place. The delay issuing the final EHC Plan also deferred Ms X’s right to appeal to the SEND Tribunal.
68. The injustice to B is again whether the education in place was suitable. Again, the Council knowing B was not attending School J should have given rise to the question of whether it owed B a Section 19 duty. Despite accepting the EHC Plan needed amending in October 2022, the Council did not turn its mind to this question until December 2022. The Council told me it concluded at this point it should set up additional online learning and therapy until July 2023, the remainder of the academic year. The Council said it made enquiries about online courses in February 2023, with a place being offered to B in May 2023. The Council said this course did not begin until September 2023.
69. The Council told the Ombudsman it accepted it owed a Section 19 duty for B between January 2023 and July 2023, but failed to fulfil this duty. It had attempted to secure a suitable placement, but delays in sourcing this led to B missing education provision to which he was entitled.
70. I recognise the Council’s acceptance of fault and agree with its assessment. However, the Council should have considered whether it owed B a Section 19 duty in October 2022. On balance of probabilities, had it done so, I believe it would have made the same decision it made in December 2022, acting to set up additional learning and interventions. This is because B’s circumstances and the education provision in place in October 2022 were the same in December 2022, when the Council decided to take this course of action.
71. I have therefore found the Council at fault for failing to secure suitable education provision for B from October 2022 to July 2023. The injustice to B is a lack of suitable education provision at a key stage in his academic career, affecting his attainment and overall wellbeing.
72. I have not considered the provision in place in September 2023, as this followed the Council issuing B’s amended EHC Plan. The Council would not be at fault for allowing some time for provision to commence.

Complaint handling

73. Ms X complained to the Council in September 2022. I have seen evidence the Council received this complaint. The Council confirmed it did not have record of its response to this complaint. The Council told the Ombudsman there had been several staff changes at the time and it may have believed the response was for its health partners to address.
74. I have found the Council at fault for not responding to Miss X’s complaint. This caused Ms X avoidable frustration. Had the Council responded, Ms X may not have needed to approach the Ombudsman.

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Agreed action

75. I have considered the Ombudsman’s Guidance on Remedies when making the following recommendations. In particular, I have considered B was a vulnerable young person, with an EHC Plan, who missed suitable education provision in important years of his school career.
76. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Share a copy of this decision and the Ombudsman’s focus report “Out of school, out of sight?” with relevant officers, to remind relevant staff of steps it should take to consider and adhere to its Section 19 duty.
3. Pay Ms X £500 in recognition of the avoidable distress, frustration and inconvenience she experienced because of the Council’s faults and failure to respond to her complaint.
4. Make the following payments in recognition of B’s missed education provision:
1. £2000 in recognition of the Council failing to properly consider its Section 19 duty in the 2021/22 academic year, leading to a loss of education provision in the summer term.
2. £5300 in recognition of the Council failing to fulfil its Section 19 duty and provide suitable education for B between October 2022 and July 2023.
77. Within eight weeks of the final decision being issued, the Council has agreed to:
1. Compile an action plan setting out the proposed improvements it will make to its services, allowing it to issue EHC Plans quicker after an annual review, and share this with the Ombudsman.
78. The Council should provide us with evidence it has complied with the above actions.

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Final decision

79. I have completed my investigation with a finding of fault causing injustice. I have made recommendations 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