Summary: Mrs X complained the Council failed to provide a suitable education for her child, Y. There was fault with how the Council responded when it knew Y was not attending school in 2023, delayed its decision after a review of Y’s Education Health and Care plan and delayed transferring Y’s plan after Mrs X moved areas. This caused some frustration to Miss X but did not cause any further injustice. The Council agreed to apologise to Mrs X, review its policy and procedures and issue reminders to its staff.

The complaint

1. Mrs X complains the Council has failed to provide a suitable education for her child, Y, since March 2020. She says the Council:
• took too long to issue an Education Health and Care (EHC) plan for Y;
• named unsuitable schools in Y’s EHC plans;
• failed to provide the education in Y’s EHC plan since January 2023;
• refused to amend Y’s EHC plan in April 2023; and
• has closed its involvement with Y’s education after Mrs X moved to a different council area.
2. As a result, she says Y has gone without a suitable education and this has caused both her and Y significant distress. She wants the Council to accept what it did wrong, properly recognise the education Y missed and arrange suitable education for them.

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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 investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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.
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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

10. I have investigated the Council’s actions, including its role in deciding whether it needed to arrange alternative education for Y, from 2023 onwards.
11. I have not investigated events before 2023. We investigated Mrs X’s complaint about earlier events in a previous investigation, so I cannot revisit those events now.
12. I have not investigated how the Council decide which school to name in Y’s EHC plan, or its decision not to amended Y’s EHC plan in 2023. These decisions were appealable to the SEND Tribunal and I have seen no good reasons why Mrs X could not have used her right to appeal those decisions.
13. I have also not investigated the actions of Y’s school, including how it decided how to provide Y with education. We cannot investigate the giving of instruction in schools or their internal organisation of management. This means that while we can consider whether a Council has secured the special educational provision in a child’s EHC plan, we cannot investigate the day-to-day details, which are for the school to decide.

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How I considered this complaint

14. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint, and the supporting information it provide, include comments and records from Y’s school; and
• relevant law, guidance and policy.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
16. 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

17. 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. 
18. 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)
19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date, and can review it at other times. 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.
20. 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)
21. 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.
22. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)

Alternative education provision

23. 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.
24. 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])
25. 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
26. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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;

Background

27. Miss X’s child, Y, has special educational needs including severe anxiety, communication difficulties and sensory processing difficulties.
28. Y had an EHC plan issued by the Council. Mrs X appealed to the Tribunal about the content of Y’s EHC plan, including which school Y should attend, in 2021. During the tribunal appeal, Y began attending School A, her local mainstream secondary school on a reduced timetable. For the last half of 2022, Y’s attendance at School A was sporadic.
29. The Tribunal decided, in November 2022, that Y should continue to attend School A full-time. The plan also said, while at School A, Y should receive:
• a tailored approach to how teaching staff gave and broke down instructions;
• extra support moving between tasks and organising, including a ‘learning partner’ who Y knew and felt comfortable with;
• extra input in core subjects to address gaps in Y’s learning;
• access to a doodle pad or colouring to help her relax during lessons;
• an adult to check in with during lessons and support at times of distress;
• pre-teaching and over-learning sessions, either one-to-one or in small groups;
• extra support with reading and comprehension, either one-to-one or in small groups; and
• emotion coaching and other strategies to help Y understand her anxiety triggers.
30. The Tribunal did not include, in Y’s EHC plan, a course she was attended at a local college. However, Y continued to attend that course during 2023.
31. The Council issued Y’s amended EHC plan, following the Tribunal’s decision, in late 2022.

Events from 2023

32. As explained above, the Ombudsman cannot investigate how schools provide instruction to pupils or arrange the provision in an EHC plan on a day-to-day basis. We can investigate how schools take steps to secure the provision in an EHC plan in so far as a school is acting on behalf of the Council. The events described below include those actions of the school relevant to the Council’s responsibilities but do not include all the day-to-day decisions the school made about Y’s education.
33. In January 2023, Y returned to School A following the Christmas and New Year holidays. However, Y became distressed while at school and left in the afternoon. The following day Mrs X told the School Y was too anxious to attend school. Y continued to attend the college course she was also taking part in.
34. The School met with Mrs X in mid-January and suggested it could arrange tuition for Y in Maths and English, but since this was not included in Y’s EHC plan, it would need to ask the Council for more funding.
35. In early February 2023, Mrs X told the School Y wanted the tutoring and to attend school to take part in this. The School also said it would arrange to carry out a review of Y’s EHC plan.
36. The School told the Council, in early March 2023, that:
• Y was not currently attending school;
• Mrs X believed Y was too unwell to attend; and
• it needed more funding to implement a period of one-to-one tutoring aimed at reintegrating Y into mainstream school.
37. In late March 2023, the Council asked the School what it had been doing to improve Y's attendance and asked the School for Y’s attendance records.
38. The School held a meeting to review Y’s EHC plan in late April 2023. It suggested the Council amend Y’s EHC plan to include the college course Y was attending and six hours a week of one-to-one tutoring. The School sent the report from the meeting to the Council and Mrs X the week after the meeting.
39. A few weeks later the School renewed its request for extra funding to provide one-to-one tutoring for Y, which the Council then agreed to.
40. The School contacted Mrs X to arrange for Y to start attending the school site for tuition. Mrs X then told the School Y wanted online tuition instead, which the School agreed to arrange.
41. After this there were various problems with the laptop Y’s school provided not being able to access the online tutoring which meant that the tutoring did not start. The School also said Mrs X would not give her written agreement for the tutoring timetable because she was not happy with what the School was offering. Based on Mrs X’s refusal to agree, the School told her that it would revisit the tutoring in September 2023 if Mrs X would agree in writing.
42. In mid-July 2023, Mrs X sent the Council her comments on the annual review report from the school. Around two weeks later the Council told Mrs X it did not intend to make any changes to Y’s EHC plan based on the review.
43. In early October 2023, the School told the Council that Mrs X and Y had moved to a different council’s area. The Council said it contacted Mrs X a few days later to confirm this but did not receive a reply. The Council sent Y’s EHC plan to the council for the area Mrs X had moved to in early December 2023, and further information requested by the new council around a week later.

My findings

44. Y’s December 2022 EHC plan, based on the Tribunal’s decision, said Y should attend School A, a mainstream school, full-time. The plan did not include any one-to-one tuition and most of the support it said Y should get was intended to be delivered in a classroom setting with other pupils.
45. Therefore, I am satisfied that by arranging and funding Y’s placement at School A, the Council took appropriate steps to secure the special education in Y’s EHC plan in January 2023.
46. Since Y’s EHC plan did not include any one-to-one provision, I do not consider the School’s efforts to arrange one-to-one tuition for Y was the School acting on the Council’s behalf to arrange the special educational provision for Y. I consider the School was acting in its own capacity to encourage and support Y back into a classroom setting.
47. Because the School was not acting on the Council’s behalf when arranging tuition, I cannot investigate how the School made those arrangements. Instead, I have focused on the Council’s role in considering whether it needed to arrange alternative education for Y, or should enforce her attendance, when she stopped attending school in early 2023.

Y’s education between January and July 2023

48. As explained in our ‘Out of school, out of sight?’ focus report we expect councils to properly consider whether they need to arrange alternative education for children missing from education. If a council decides there are no medical or other reasons a child is not attending school, it should also consider whether it should enforce attendance.
49. The Council first became aware Y has stopped attending school in 2023 when the School told it in mid-March. There is some evidence the Council considered whether it needed to arrange alternative education for Y at that time and later. It referred to there being no professional or medical evidence that Y was too unwell to attend school and that the Tribunal had recently decided that full-time attendance at School A was appropriate.
50. There is, however, no evidence the Council made a clear, deliberate decision about whether it had any duties to Y under Section 19 of the Education Act 1996. There are no clear records of all the evidence the Council considered or that it formally decided whether Y was, or was not, unable to attend school between January and July 2023. The failure to properly consider whether it needed to arrange alternative education for Y and its failure to keep clear records about this was fault.
51. However, I do not consider this made a difference to the outcome. On the balance of probabilities, I am satisfied that even if it had properly considered its duties under section 19, the Council would have decided it did not need to arrange alternative education for Y because:
• there was no medical or professional evidence to say Y was too unwell to attend school;
• the SEND Tribunal had recently decided that Y could attend School A full-time;
• Y continued to attend her college course while not attending School A; and
• Y had attended School A, albeit intermittently, for several months before January 2023.
52. Therefore, although there was fault with how the Council made its decisions, I do not consider this caused an injustice to Y.
53. Similarly, I am also satisfied the Council failed to properly consider whether it should have enforced Y’s attendance at school after March 2023. There is some evidence the Council considered taking action for Y’s non-attendance when it asked the School for Y’s attendance records in late March 2023. However, there is no evidence the Council properly considered this or recorded its reasons for not enforcing Y’s attendance at school. That was fault.
54. Since the Council did not take any action against Mrs X for Y not attending school, I do not consider that fault to have caused Mrs X an injustice.

Annual review

55. Following the annual review in April 2023, the evidence shows the School sent the report from the meeting to the Council promptly.
56. However, the Council did not decide whether to amend or change Y’s EHC plan until late July 2023; 9 weeks later than it should have done. That delay was fault.
57. Once the Council made its decision not to amend Y’s EHC plan, Mrs X had the right to appeal that decision, including whether School A was still suitable for Y, to the SEND Tribunal. Mrs X had previously appealed to the Tribunal, and I have seen no good reasons why Mrs X could not have appealed the Council’s July 2023 decision if she had wanted to.
58. Since it would have been reasonable for Mrs X to use her right to appeal, I cannot investigate any education Y missed after the date of the Council’s decision because this is about the consequences of the Council’s decision not to change Y’s EHC plan or education placement.
59. Mrs X did not appeal the Council’s July 2023 decision. Therefore, although I accept the delay making that decision caused Mrs X some frustration, I do not consider it caused any further injustice to her or Y.

Transferring Y’s EHC plan

60. The Council became aware Mrs X and Y had moved to another area in early October 2023. The Council should have sent Y’s EHC plan to the new authority within 15 working days. However, the Council only send the plan in early December 2023, around a month later than it should have done. That delay was fault.
61. I am satisfied that delay caused Mrs X some avoidable frustration, but since Y was still within travelling distance of School A, remained on roll at the School and was not due an annual review for some time, I do not consider the delay caused Y an injustice.

Complaints handling

62. Over the period I have investigated, Mrs X made two complaints to the Council about Y’s education:
• a stage three complaint in July 2023; and
• a stage two complaint in August 2023.
63. The Council responded to the stage three complaint within around three weeks; within the 20 working days set out in its complaints policy.
64. The Council responded to the stage two complaint just under two weeks later than the 20 working days set out in its complaints policy. The Council explained this delay was caused by problems with its computer systems at that time. I am satisfied with the Council’s explanation and that the apology it made to Mrs X at the time was a suitable remedy for the frustration caused by that delay.

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Agreed action

65. Within one month of my final decision the Council will apologise to Mrs X for the frustration caused by the delays in making a decision following the April 2023 annual review and sending Y’s EHC plan to the council for the area she moved to.
66. Within three months of my final decision the Council will:
• review its policy on providing alternative education provision. The Council should ensure it formally considers all reports of children not attending their education placement, even if these are received outside of its existing formal referral process. It should also ensure it makes clear, reasoned decisions in each case and keeps clear records of how it decides whether it owes any duties or arrange alternative provision;
• remind SEND and education staff of the importance of properly considering all the evidence when making decisions and keeping clear records of the decisions they make and their reasons; and
• review its process for transferring EHC plans when someone moves outside of the Council’s area. It should ensure that plans are forwarded within the required timescales.
67. The Council should provide us with evidence it has complied with the above actions.
68. We recently made service improvement recommendations about how the Council ensures annual reviews are processed in a timely way. I would have made a similar recommendation in this case, but I have decided not to repeat the recommendation we have already made.

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Final decision

69. I have completed my investigation. There was fault with how the Council responded when it knew that Y was not attending school in 2023, delayed its decision after a review of Y’s EHC plan and delayed transferring Y’s EHC plan when Mrs X moved. This caused some frustration to Miss X but did not cause any further injustice. The Council agreed to apologise to Mrs X, review its policy and procedures and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman