Summary: Ms X complained the Council did not put in place suitable education for her child when she was out of school and delayed in issuing a final Education, Health and Care plan after an annual review. Ms X said her child has missed out on education she should have received and has had to wait longer than she should have for an updated Education, Health and Care plan. We have found the Council at fault for not putting in place appropriate education for Ms X’s child and for delaying in providing a final Education, Health and Care plan. The Council agreed to apologise, make a payment to recognise the loss of education and distress caused, and carry out some service improvements.

The complaint

1. Ms X complains the Council:
1. Did not provide adequate education to her daughter and the provision listed in her Education, Health and Care plan when she was out of school.
2. Delayed in issuing an final Education, Health and Care plan following an annual review.
2. Ms X said her daughter has missed out on education and has fallen behind in her education.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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. I have not investigated any concerns Ms X raised before September 2022. Ms X brought her complaint to us in September 2023 and I see no good reasons why she could not have complained about events prior to September 2022 sooner. I sent a draft of this decision to Ms X and the Council and considered comments received in response.

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How I considered this complaint

7. As part of this investigation I considered the information provide 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.
8. 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

Law and guidance

Alternative provision

9. 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.
10. 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))
11. 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”.
12. 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”.
13. 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))
14. 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)
15. 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’)

Special educational needs

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)
17. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviewing EHC Plans

18. 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.
19. 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)
20. 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.
21. The Council must then issue any final amended EHC plan within eight weeks of the amendment notice. ((R (L, M and P) v Devon County Council). Therefore councils should issue a final EHC plan within 12 weeks of the annual review meeting.

What happened

22. Ms X daughter, Y, has special educational needs. In early 2022, the Council issued Y with a EHC plan following an annual review.
23. Y’s EHC plan said she was due to start at a specialist secondary school from September 2022. The special educational provision listed in the EHC plan included:
• Access to a broad and balanced curriculum which considers Y’s strengths such as her imaginative and creative work.
• Exercises to warm up her hands to reduce the demands of handwriting.
• An emotional literacy package.
• Daily check ins with a consistent adult.
• Buddy groups and pastoral support.
• Individual or small group sessions to develop understanding of emotions.
• Small group play sessions once per week.
• Regular movement breaks should be incorporated into her day, running errands, giving out resources and moving chairs.
• Y will receive ear defenders, a wedged cushion, a weighted backpack and a toy panda.
• Y will be supported to developing self-care skills such as eating and independence in dressing and undressing for PE.
24. In September 2022, Y started her new school placement. By November 2023, this placement had broken down and Y could no longer attend school due to anxiety.
25. In early January 2023, Ms X told the Council Y could not attend school. As a result, the Council contacted Y’s school and asked it to arrange an annual review of Y’s EHC plan.
26. Between mid-January 2023 and early February 2023, the Council and the school were in discussions about an annual review for Y. The Council chased the school up several times to arrange this. At first Y’s school wanted to hold the annual review in June 2023, however the Council said this was too late. Y’s annual review was arranged for early March 2023.
27. On 9 February 2023, Ms X sent the Council a letter from Y’s consultant paediatrician which said Y was not fit to attend school but was fit to receive education other than at school. After receiving this letter the Council told Ms X it would explore alternative provision for Y.
28. In early March 2023, the annual review of Y’s EHC plan took place. The notes from the meeting showed the Council would review the support Y was receiving at home as Y’s school was currently providing work at home for Y to complete with Ms X.
29. Ms X made a complaint to the Council on 16 March 2023. Ms X complained Y had not received any alternative provision since she stopped attending school in November 2022. Ms X also complained Y did not receive suitable education between December 2021 and July 2022 and complained about how Y had been treated by her primary school.
30. In April 2023, Ms X wrote to the Council as she had not heard what amendments the Council was making to Y’s EHC plan. Ms X said the Council previously told her it would amend Y’s plan.
31. The Council responded to Ms X’s complaint on 18 April 2023. The Council responded to complaints Ms X raised from 2021 and 2022. In relation to the complaints I have investigated, the Council said:
• Y’s school was sending work home for her since she stopped attending in November 2022.
• It was communicating with the Hospital Education Service to put in place home tuition.
• There was medical evidence to show Y was not fit to attend school. The Council said it would continue to work with the school and others to re-integrate Y into school
• It would hold an interim review in June 2023 with all professionals to discuss Y’s case.
32. Ms X asked the Council to consider her complaint at the next stage of its complaints process in May 2023. Ms X said she was not happy the interim review would take place in June 2023 and wanted this sooner.
33. On 16 May 2023, the Council send Ms X an amended draft EHC plan for Y.
34. On 2 June 2023, the Council provided Ms X with its final response to her complaint. The Council said:
• It was Y’s school’s responsibility to arrange her education as she was medically unfit to attend. The Council said the school could make these arrangements through its tuition services.
• The proposal to hold a review meeting in June 2023, was too late. The Council agreed to arrange this urgently.
• It had not caused Ms X distress, time or trouble in progressing her complaint so would not offer her a payment.
• It was wrong for the previous response to deal with the issues she raised from 2021 and 2022 as these were out of time.
35. On 11 June 2023, the Council held the review meeting for Y. The Council agreed for the Hospital Education Service and Y’s school to arrange a timetable for tutoring.
36. From around 20 June 2023, the Council put in place four hours of tutoring a week for Y for English and maths only.
37. On 3 July 2023, the Council sent Ms X a further amended draft EHC plan. Ms X sent her comments back to the Council in late July 2023.
38. In late August 2023, Ms X chased up Y’s final EHC plan. The Council issued Y’s final EHC plan in late October 2023.
39. In November 2023, Ms X contacted the Council three times to ask it to increase Y’s hours of tutoring. The Council increased Y’s tutoring to five hours a week in January 2024.
40. In response to my enquiries the Council said Y is currently unable to attend school due to anxiety and professionals are working with Y to help her transition back to attending school. The Council said the current position was Y’s school were working with Ms X to help her attend again. There is also tuition in place of five hours a week.

Analysis

Complaint a) alternative education and special educational provision

41. Y stopped attending school in November 2022. The Council became aware of this in early January 2023. In early February 2023, the Council told Ms X it would explore alternative education for Y, however it did not put in place tutoring for Y until June 2023. This was fault. This was despite Ms X sending the Council medical evidence in February 2023, which said Y could not attend school but could receive education other than at school.
42. I recognise the Council was aware that Y’s school was sending some worksheets home for her to complete with Ms X. I have not however seen any evidence the Council objectively considered whether the education arranged by the school was suitable for Y. The fact the Council agreed to look into alternative education for Y, suggests it considered Y the education Y was receiving was not suitable.
43. In June 2023 Y started to receive 4 hours of tutoring a week in English and Maths only. This was not full time education. I cannot see how or where the Council considered whether 4 hours was suitable for Y or how much education she could manage. This was fault.
44. In January 2024, the Council increased Y’s tutoring to 5 hours a week by adding one hour for literacy. Again the Council has not provided evidence to show whether it considered if this amount of tutoring was suitable education for Y.
45. Since November 2022, Y received some work which was sent home and a few hours of tutoring a week from June 2023. When a pupil is unable to attend school for physical or mental health reasons and has an EHC plan we expect councils to try and secure as much of the special educational provision as is possible in the home or alternative provision setting.
46. The Council has not explained or showed how Y received the special educational provision in her EHC plan. The Council also has not provided evidence to show what steps it took to put in place the special educational provision in Y’s EHC plan. From the information I have considered I am satisfied Y did not receive the provision in her EHC plan. This was fault.
47. It also appears that Y is still not attending school and is only receiving five hours of tutoring a week.
48. As I have found fault I need to consider what injustice this has caused. Y has not received the education and support she otherwise would have received. This is an injustice to Y. Ms X has spent time completing worksheets with Y at home. Had the Council put in place a package of educational other than at school, Y could have received suitable education out of school and would not be as reliant on Ms X. This is an injustice to Ms X.
49. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 a term to acknowledge the impact of that loss. When coming to a figure for this case I considered there was some provision in place for Y. However I have also considered the severity of Y’s special educational needs and that this was a significant period in Y’s education as it was her first year at secondary school.

Complaint b) annual review of Y’s EHC plan

50. After Ms X reported to the Council that Y was not attending school, the Council contacted Y’s school and asked it to arrange an annual review. The records showed the Council chased up Y’s school several times about this.
51. It took around two months from when Ms X reported that Y was not at school to the Council for the annual review meeting to be held. I have not found the Council at fault here. The Council delegated the holding of the annual review to Y’s school and the delay in holding this meeting lies with Y’s school, not the Council.
52. Following the annual review meeting the Council did not send Ms X an amendment notice telling her it was going to amend Y’s EHC plan within 4 weeks and copies of the amendments. Instead it send a draft plan to her in mid-May 2023. This was fault.
53. It took the Council until late October 2023 to issue Y’s final EHC plan. The Council should have issued this within 12 weeks of the annual review meeting. Therefore Y should have received a final EHC plan by late May 2023. Issuing the amended EHC plan five months later will have caused Ms X some distress and uncertainty about what provision Y would be entitled to receive.
54. The correspondence between Ms X and the Council showed she contacted the Council several times to chase up the final EHC plan. By not issuing a final EHC plan meant Ms X’s appeal rights were delayed should she have chosen to challenge the content of the plan at Tribunal.

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Agreed action

55. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for not providing adequate education to Y or the special educational provision in her EHC plan and for the time taken to produce a final EHC plan following Y’s annual review.
• Pay Ms X £3,600, for the benefit of Y’s education, to recognise the loss of education and special education provision to Y between February 2023 and March 2024. This is calculated at being £1,200 a term for three terms.
• Make an ongoing payment of £400 a month to Ms X. The Council should start this from April 2024 until either Y reintegrates back into school in accordance with her EHC plan, or the Council puts in place what it sees as an appropriate package of education alongside all parts of the special educational provision it is able to deliver while Y is not at school.
• Pay Ms X £300 to recognise the distress and uncertainty she experienced as a result of the delays in issuing Y’s final EHC plan following the annual review.
56. Within three months of my final decision the Council agreed to carry out the following:
• Produce an action plan to demonstrate how the Council will meet statutory timescales for annual reviews for Education, Health and Care plans.
• Review its out of school procedures to ensure it meets its duties to secure alternative provision.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation and found there was fault by the Council which caused injustice. The Council 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